Spinal Cord Injury - Articles - Part 2

Malfunction Missed Prior to Metro Crash

July 02, 2009

The National Transportation Safety Board says Washington Metro workers overlooked a circuitry malfunction prior to a deadly June 22 railway crash.

Transit officials, citing the NTSB findings, said the piece of equipment that malfunctioned had recently been replaced to prevent crashes from occurring, The Washington Post said Thursday.

The officials would not say whether the circuitry malfunction was caused by a poor installation five days before the crash or faulty equipment.

Metro rail chief Dave Kubicek said the malfunction of the replacement Wee-Z bond occurred so quickly, it likely would have been unnoticeable to workers at the Metro's downtown operations center.

"It was happening so fast, you would just blink and miss it," he told the Post.

"From what we have discovered so far, it appears to be a freak occurrence," Metro General Manager John B. Catoe Jr. said.

The collision of two Metro Red Line trains resulted in nine deaths and 80 injuries.


Chrysler Bankruptcy Stalls Couple's Product Liability Case

May 26, 2009

Joseph and Jeanne Polio were hoping for a measure of justice and the security to ensure that Jeanne, who is paralyzed from the chest down from a 2005 rollover crash, can live out her days at home.

Instead, they now are among an ocean of unsecured creditors and uncertainty in the massive Chrysler bankruptcy case.

Their day in court was scheduled for November, but it seems unlikely that the case will move forward, according to their attorney. And even if it does, once Chrysler emerges from bankruptcy as planned as a new corporate entity with Italian automaker Fiat, there might be precious few assets left in the old corporate shell of the nation's third-largest automaker to pay people like the Polios. "This is a government-sponsored bankruptcy, so nobody knows what's going to happen," said the Polios New Haven attorney. "We're facing substantial uncertainty." They're not alone. Last week, attorneys and a number of consumer groups filed an objection to Chrysler's bankruptcy plan, arguing that the company wants to sell virtually all of its assets "free and clear" of any liability for legal claims on vehicles purchased before the bankruptcy.

Some of those consumer groups testified last week before the U.S. House Judiciary Committee, imploring lawmakers to intervene on behalf of injured parties if the court won't.

Among the people to offer testimony was Clarence Ditlow, executive director for the Center for Auto Safety. He told ABC News that "the bankruptcy court outright ought to address the issue of why consumers are getting nothing, and if the court won't do it, then the government needs to step in because consumers who are injured should not walk away with nothing, which is exactly what is happening."

Jeanne Polio will never walk again.

On July 10, 2005, she and her husband, a retired New Haven police captain, had left a pizza shop and were en route to the gym when their lives unexpectedly and irrevocably changed. They were in their 2000 Jeep Cherokee when an 18-year-old unexpectedly pulled out in front of them. In the ensuing crash, the Jeep went airborne and landed on its roof, which crushed on the passenger side, leaving Jeanne Polio with a spinal cord injury, paralyzed from the chest down.

"Our biggest concern is the future," said Joseph Polio, who is 65 and is his wife's primary caregiver. He said he worries what will happen to her if he dies before she does. "I try to stay in good shape because she needs me."

But like other consumers with product liability lawsuits against Chrysler, their prospects of receiving much money are poor.

In bankruptcy proceedings, they are among a vast pool of unsecured creditors, along with corporations and other litigants with injury or lemon-law claims. The status also leaves them among the last to get paid from whatever is left of Chrysler assets.

Secured creditors, who have collateral, receive preferential treatment and get the first crack at assets.

It's not entirely clear how the court will determine whether the Polios and others like them are entitled to any money. It's possible that the lawsuit will be remanded to a trial court to determine its merits, and if an award is granted, they will go back to bankruptcy court to try to collect.

Pothin, because of this case, has become well versed in the vernacular of rollover crashes and SUV engineering. American-made SUVs typically have four roof-support pillars on either side that connect to a roof rail, which in concert are designed to prevent a roof crush in a rollover and meet minimum federal motor vehicle safety standards. Those standards, Pothin said, have been unchanged for 30 years and are "grossly inadequate."

Volvos, in contrast, are designed to exceed by two times U.S. requirements, he said.

The couple, married for 37 years, is expecting their first grandchild, but are unsure how they can make a trip to North Carolina given Jeanne Polio's medical limitations.

"Life changes. Nobody in life is guaranteed a freebie. We're still the luckiest people in the world. We have each other," Joseph Polio said.

Polio teaches three criminal justice courses at the University of New Haven and that money is spent on part-time home health care.

They live off his $60,000 city pension in their East Haven Cape Cod-style home.

The couple did receive $100,000 from the other driver's insurance carrier, and some funds from the state underinsured drivers fund, but invested nearly $175,000 modifying their home to accommodate Jeanne in her wheelchair.

"We don't hold any malice against the kid who did this," he said. "I feel very badly for him and his family because he didn't set out that morning to hurt anybody. We pray for him a lot."

For Jeanne, it's hard to put into words what was lost in the accident.

After Joe retired, the couple did some traveling and had hoped to do more.

They were active, canoeing, biking, inline skating. She no longer can care for her own home or cook dinner.

"Just everyday life. Where do you start?" she said.


Jurors' Use of the Internet Upsets the Scales of Justice

March 19, 2009

Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been researching the case on the Internet, directly violating the judge's instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.

Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, wasting eight weeks of work by federal prosecutors and defense lawyers.

"We were stunned," said the defense lawyer, Peter Raben, who was told by the jury that he was on the verge of winning the case. "It's the first time modern technology struck us in that fashion, and it hit us right over the head."

It might be called a Google mistrial. Jurors' use of BlackBerrys and iPhones to gather and send out information about cases is wreaking havoc on trials around the United States, upending deliberations and infuriating judges.

Last week, a building products company asked an Arkansas court to overturn a $12.6 million judgment against it after a juror in the civil trial used Twitter to send updates during the proceedings.

On Monday, defense lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent J. Fumo, demanded that the judge declare a mistrial after a juror posted updates on the case on Twitter and Facebook. The juror even told his readers that a "big announcement" was coming on Monday. But the judge decided to let the trial continue, and the jury found Mr. Fumo guilty. His lawyers plan to use the Internet postings as grounds for appeal.

Jurors are not supposed to seek information outside of the courtroom. They are required to make their decision based only on facts that the judge has decided are admissible, and they do not see evidence that has been excluded as prejudicial. But now, using their own cellphones - to look up the name of a defendant on the Web or to examine an intersection using Google Maps - they violate the legal system's complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.

Such cases are not confined to the United States. In Britain, a juror went online not long ago with a Blackberry during a trial for rape, causing the conviction to be quashed. The Lord Chief Justice, Lord Judge of Draycote, made a recent speech where he noted that some jurors have been found making "private enquiries" on the Internet despite orders not to.

A juror on a lunch or bathroom break can find out many details about a case. Wikipedia can help explain the technology underlying a patent claim or medical condition, Google Maps can show how long it might take to drive from point A to point B, and news sites can show what has been written about a criminal defendant, his lawyers or expert witnesses.

"It's really impossible to control it," said Douglas L. Keene, president of the American Society of Trial Consultants.

Judges have long amended their habitual warning about seeking outside information during trials to include Internet searches. But with the Internet now as close as jurors' pockets, the risk has grown more immediate - and instinctual. Now lawyers have routinely begun to check the blogs and Web sites of prospective jurors.

Mr. Keene said jurors might think they are helping, not hurting, by digging deeper. "There are people who feel they can't serve justice if they don't find the answers to certain questions," he said.

But the rules of evidence, developed over hundreds of years of jurisprudence, are there to ensure that the facts that go before a jury have been subjected to scrutiny and challenge from both sides, said Olin Guy Wellborn, a professor at the University of Texas law school.

"That's the beauty of the adversary system," said Mr. Wellborn, a co-author of a handbook on evidence law. "You lose all that when the jurors go out on their own."

In the Florida case that resulted in a mistrial, Mr. Raben, a defense attorney from Miami, spent nearly eight weeks fighting charges that his client illegally sold prescription drugs through Internet pharmacies. The arguments were completed and the jury was deliberating over the verdict when one of them contacted the judge to say another juror had admitted to her that he had done some outside research on the case over the Internet.

As the judge questioned the juror about his research - which included evidence that the judge had specifically excluded - Mr. Raben recalled thinking that if the juror had not communicated his information to the rest of the jury, "we can just kick this juror off and go" on with the trial, instead of wasting eight weeks.

But the judge then found that eight other jurors had done the same thing, Googling the lawyers and the defendant, looking up news stories about the case, checking word definitions on Wikipedia and searching for evidence that had been specifically excluded by the judge. "It was a heartbreak," Mr. Raben said.

In the Arkansas case, Stoam Holdings, the company trying to overturn the $12.6 million judgment against it, said a juror, Johnathan Powell, had sent his Twitter messages during the trial. Mr. Powell's messages included, "oh and nobody buy Stoam. Its bad mojo and they'll probably cease to Exist, now that their wallet is 12m lighter," and "So Johnathan, what did you do today? Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else's money."

Mr. Powell, who is 29 and manages a one-hour photo booth at a Wal- Mart in Fayetteville, Arkansas, insisted in an interview he had not sent any substantive messages about the case until the verdict had been delivered and he was released from any obligation to keep mum. "I was done when I mentioned the trial at all," he said. "They're welcome to pull my phone records."

But juror research is a more troublesome issue than Tweeting or blogging, said Mr. Keene of the American Society of Trial Consultants, and raises new issues for judges in giving instructions.

"It's important that they don't know what's excluded, and it's important that they don't know why it's excluded," Mr. Keene said. The court cannot even give a full explanation to jurors about research - say, to tell them what not to look for - and so instructions are usually delivered as blanket admonitions, he said.

The technological landscape has changed so much that today's judge, Mr. Keene said, "has to explain why this is crucial, and not just go through boilerplate instructions." And, he said, enforcement goes beyond what the judge can do, noting that "it's up to juror 11 to make sure juror 12 stays in line."

It does not always work out that way. Seth A. McDowell, a data support specialist who lives in Albuquerque, New Mexico, and works for a financial advising firm, said he was serving on a jury last year when a member of the jury admitted having Googled the defendant. He said the juror acknowledged that she was not supposed to do so and said she did not find anything on the Internet.

Mr. McDowell, who is 35, said he wondered whether he should tell the judge, but decided against it. None of the other members of the jury did, either. Now, he said, after a bit of soul searching, he feels he might have made the wrong choice.


Paralyzed Wrestler, Schools Settle

March 13, 2009

A former West Seattle High School wrestler who was paralyzed at a practice two years ago was awarded $15 million in a settlement reached Wednesday with Seattle Public Schools.

Mac Clay, then a senior, was at wrestling practice in the school cafeteria when he was driven backward into two wrestlers going in the opposite direction. The accident left him with limited use of his arms and no movement in his fingers and triceps, his attorney said.

At the time, 13 wrestling team members were practicing using one mat on the concrete floor, although there were extra mats nearby, his attorneys said.

"They didn't follow the normal safety rules," said one of Clay's lawyers. "The coaches weren't certified and hadn't attended safety classes required" by the Washington Interscholastic Activities Association.

The settlement was reached on the deadline day set by attorneys. The payment is covered by the school district's insurance carrier, but had it been more than $15 million, the difference would have come directly from the district, Clay's attorney said.

"Settlement at this amount also prevented the district from having to use district funds for the settlement," he said.

Clay was a three-sport athlete. He played golf for three years and was an outfielder on the 2006 Wildcats team that won the Metro championship. During the 2005-06 wrestling season, Clay competed in the 140- and 145-pound weight classes.

The school's valedictorian, he also was a cellist in the Seattle Youth Symphony.

"This was a very tragic wrestling accident," Seattle Public Schools spokesman David Tucker said Wednesday. "This case has been a matter of intense litigation. We are currently engaged in ongoing negotiations."

Increased Court Costs in Texas Criminal, Civil Cases

January 13, 2009

Raising court costs will only affect "the bad guys" and should not be seen as a tax or fee on the average citizen, proponents of the increase say.

But the extra $20 fee will also be imposed on traffic offenders like speeding soccer moms, couples getting divorced, and people who go to small claims court.

Under the proposal, $10 would be set aside for the expansion of the overcrowded Houston County Jail; $9 would go to the district attorney to help fund a new prosecutor's position for a fifth judgeship; and $1 would go to the circuit clerk's office.

The request for funding is less than the $31 increase District Attorney Doug Valeska first proposed in December. Valeska is submitting the legislation for county support, which then goes to the local delegation of the Alabama Legislature for approval.

Circuit Court Judge Larry Anderson said he knew nothing about the initial request for funding.

"We talk about bad guys are going to pay, yes, but it will also increase civil cases, anybody who files in a divorce case, and small claims cases," Anderson said.

"And I do want to let the commission know, the judges were unaware this legislation was being introduced. There was a provision the judges were to receive $1 a case. I talked to the judges. We are opposed to the $1 increase. We asked that it be deleted."

Under the proposal, submitted to Houston County commissioners, all costs in juvenile, traffic, criminal and quasi-criminal cases in the juvenile, district, circuit, and municipal courts of Houston County, and all civil cases in small claims, district, circuit, child support and domestic relations court, will be increased.

Valeska could not attend the meeting because of a probation hearing, but said later that DAs across the state are trying to raise money.

"How do you cover a court without a prosecutor and a clerk to handle the paperwork that goes with all those cases?" Valeska asked. "I have no investigators. I have nine lawyers to cover five circuit and two district judges, and a referee. That's eight and a judge in Henry County. How do I cover all those courts without lawyers and I have no administrative assistant -- nobody to handle the paperwork. This office has not grown in proportion to the work that comes along with more cases."

Valeska's original request brought forth concerns, Houston County Chairman Mark Culver said.

"It has been worked on and massaged," Culver said. "We took into consideration the economy and thought a $35 to $40 increase is too much. We got it down to $20."

Culver said the increase would take effect the third month following passage by the Legislature, which is expected to be in August or September.

Commissioners are expected to vote on the issue Monday.


Supreme Court Rules Plaintiffs Without Standing May Sue

June 24, 2008

On Monday, the U.S. Supreme Court ruled that a collection agency that has no pecuniary stake in a case may sue on behalf of its customers.

The Court's 5-4 decision contradicts a basic legal tenet, that courts may only hear cases if plaintiffs have standing to sue--that is, if they suffer injuries as a result of the defendant's conduct.

In the case before the Court, APCC Services Inc. is suing to collect from Sprint Communications Co. and AT&T Inc. for coinless long-distance calls made on payphones.

APCC provides billing and collection services on behalf of payphone service providers.

Writing for the majority, Justice Stephen Breyer ruled that APCC, which intends give any money awarded in the lawsuit to payphone service providers, may pursue the claim against Sprint and AT&T.

A court of appeals had earlier ruled that the case could move forward, reasoning that the payphone providers had transferred the claims to the collection agency and financed APCC's lawsuit. Breyer agreed, explaining that courts have, for centuries, allowed plaintiffs who have been assigned compensation claims to file suit.

Chief Justice John Roberts dissented, arguing that APCC has "nothing to gain from their lawsuit," and therefore, under settled principles of law, the Court must dismiss the complaint. The other dissenting justices were Antonin Scalia, Clarence Thomas, and Samuel Alito.

Last year, the Court ruled that payphone companies who hadn't received due compensation from long-distance carriers could sue for damages.


Cialis Eases Erectile Dysfunction After Spinal Cord Injury

October 09, 2007

Researchers from the Raymond Poincare Hospital in Garches found that the drug Cialis appears to help treat erectile dysfunction (ED) in men suffering from spinal cord injuries.

The study consisted of 197 male spinal cord injury patients.

The researchers noted that only about 25 percent of men with spinal cord injuries are able to have erections that are adequate for intercourse.

For the first four weeks of the study, the men received no treatment. They were then randomly assigned to receive Cialis or a placebo for 12 weeks. The men, who averaged 38 years of age, were instructed to take the drug/placebo as needed before sexual activity, with a maximum of one dose daily.

After the 12-week treatment period, all the men filled out a questionnaire to assess erectile dysfunction. Men who took the drug had an average score of 22.6 (mild ED), while those who took the placebo had an average score of 13.6 (moderate ED).

On average, men who took Cialis were 75.4 percent successful when attempting penetration and 47.6 percent successful when attempting intercourse, compared with 41.1 percent and 16.8 percent, respectively, for men who took the placebo.

The most common side effects among the men who took Cialis were headache (8.5 percent) and urinary tract infection (7.7 percent).


Mass. Brain-Injured Sue to Live in Community

June 07, 2007

A brain-injured man confined to a residential institution in Worcester is a plaintiff in a class action lawsuit that charges the state with denying more than 2,000 such people access to community settings that could help them improve the quality of their lives.

In a lawsuit similar to the Rosie D. v. Romney “stuck kids” case that addressed the state’s failure to place institutionalized mentally ill patients into residential facilities, the state is accused of violating the Americans with Disabilities Act and other federal laws by institutionalizing people with brain injuries.

The lawsuit calls for the state to place every “stuck” brain-injured person into a community setting within five years.

“Currently there are approximately 8,200 individuals with brain injuries residing in nursing and rehabilitation facilities in Massachusetts. At least a quarter of these individuals are able to, and would like to, live in integrated community settings,” said Richard Johnston, a partner with the Boston law firm of Wilmer Cutler Pickering Hale and Dorr LLP. “The commonwealth, however, has failed to develop community alternatives to institutional confinement for persons with brain injuries. Consequently, trapped in institutions, these individuals are forced to experience regression, deterioration, isolation and segregation.”

Glen Jones, 57, who since 1990 has lived at the Worcester Skilled Care Center, is one of four named plaintiffs. A resident of Haverhill, he has been confined to institutional settings for 21 years since a motor vehicle accident left him in a coma for three weeks.

His family has repeatedly applied to the one existing state-funded program for people with traumatic brain injury, but alleges that Mr. Jones did not receive the services necessary for his release into the general population because efforts to identify existing residential programs were unsuccessful. Before his accident, Mr. Jones was a business owner and auto mechanic.

Mr. Johnston said the state’s position violates U.S. Supreme Court precedent and the Medicaid Act.

Wilmer Culter Pickering Hale and Dorr filed the suit in U.S. District Court in Springfield, along with the Northampton-based Center for Public Representation, which won the Rosie D. case. The suit was filed on behalf of four people and the Brain Injury Association of Massachusetts.

The defendants are Gov. Deval L. Patrick; Dr. JudyAnn Bigby, secretary of the Executive Office of Health and Human Services; Leslie A. Kirwan, secretary of the Executive Office of Administration and Finance; Thomas Dehner, acting director of MassHealth; and Elmer C. Bartels, commissioner of the Massachusetts Rehabilitation Commission.

Dr. Bigby said Massachusetts’ Medicaid program covers numerous community-based medical services for the brain-injured that other states don’t provide, including therapy and adult day health. She said the state’s brain injury program serves more than 900 people and receives $16 million in state funds.

The Patrick administration also is seeking federal money to increase community-based services to people with disabilities, including the brain-injured, she said.

Steven Schwartz, a lawyer for the Center for Public Representation, criticized the Romney administration for failing to address the issue, and he said the Patrick administration “left us no choice but to file this lawsuit. We sincerely wish it had been otherwise, since it may now take a lengthy and expensive legal battle to ensure that persons with brain injuries who are confined in segregated institutions will finally have a chance to live ordinary lives in the community.”

The state’s inability to create adequate programs for people with brain injuries, he said, stands in stark contrast to its comprehensive system of community services for the mentally retarded and people with psychiatric disabilities.

As a result, he said, more than 8,000 people live in institutions such as nursing facilities, while just 200 get community residential services. Meanwhile, he said, the state has refused to apply for federal funding to help pay for the transitioning of such people from institutions into the community. He contrasted that with New Jersey, which will receive $30 million over five years to help create community supports for its nursing facility residents.

According to the lawsuit, the state-funded Brain Injury Statewide Specialized Community Services program is underfunded, forcing applicants to wait for years without receiving necessary services.

Cathy Hutchinson of Attleboro, the lead plaintiff in Hutchinson v. Patrick, said in a written statement that she has spent the last 11 years living in a nursing home after suffering a stroke in her home that left her a mute quadriplegic.

She cited the stress of living far from her family and friends and without therapies that could improve her condition.

“There are no state-funded services for me because of how my injury occurred, and this is ridiculous and cruel to me and my family,” she said in her statement. The lawsuit alleges that the state only provides community residential services to people who have suffered a traumatic brain injury that is not the result of a medical condition such as a stroke.

According to the lawsuit, even some of the institutionalized are not receiving necessary services, including assistance with personal care; speech, occupational and physical therapy; medical and nursing services; vocational training or day rehabilitation programs; medical equipment, transportation; and integrated social and recreational activities.

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