Judge hammer on the table

Texas Legislature Takes Up Bill Limiting Commercial Liability in Personal Injury

Texas Legislature Takes Up Bill Limiting Commercial Liability in Personal Injury

August 25, 2021


This Publication was updated 8/25/2021.

On September 1, 2021 new legislation that regulates plaintiffs cases where commercial vehicles are involved will come into effect.

Some say the new law could let companies off the hook for personal injury damages in civil vehicle crash cases. Supporters of HB 19 say the bill prevents excessive lawsuits against companies, but public safety advocates warn the bill will make Texas roadways more dangerous, and pass the costs of personal injury claims onto the consumer.

None know at this time how the new rules will play out in litigation or court when they take effect next month.

Nearly 40,000 crashes involving a commercial vehicle took place in Texas in 2019. That year, 613 people lost their lives to commercial vehicle accidents in Texas. (Most recent data available via TxDOT from 2019.)

The bill was signed by Texas Governor Greg Abbott on June 16, 2021. When this goes into effect, it will require plaintiffs facing serious injury to prove “gross negligence” on the part of the company who owns or had hired the driver of the commercial vehicle. This could rob injured victims of severe crashes from their day in court.

Under an unreasonably high bar, crash victims may be prohibited filing a claim or lawsuit against the at-fault company. Gross negligence is a more severe type of recklessness than negligence. This barrier is too severe. It serves to give trucking companies a free pass for reckless company behavior.

HB 19 passes liability from the company or corporation employing drivers directly to the drivers. If the plaintiff and their attorney can not demonstrate “gross negligence” on the part of the trucking company, the driver alone assumes liability.

A quick background on the legislation:

  • It was authored by State Rep. Jeff Leach. He claimed it would protect commercial vehicle operators from “unjust and excessive lawsuits.”
  • The bill was passed in the Senate with an amendment on May 20, 2021.
  • Of note: this bill was similar to one filed in the Texas Senate, Senate Bill 17. The bill was filed on March 11, 2021 but did not advance out of the Transportation committee.

Those who have spoken out in favor of the law are groups that represent the financial interests of the trucking industry. They say that the bill would prevent frivolous lawsuits.

On the other side, consumer advocates, traffic safety advocates, and personal injury attorneys have been in vocal opposition to changes made by the bill.
A nonpartisan Texas news publication in Texarkana wrote publicly about their opposition to the bill. The Texarkana Gazette wrote in a public opinion piece saying “The only ones who benefit — and benefit big — are trucking companies and maybe lawmakers when campaign donation season rolls around.”

These new requirements would limit an injured person’s ability to sue the at-fault trucking company by creating a two step legislative process. This legislation would protect large companies and corporations from accountability.

Truck accidents cause major harm to Texas residents. In 2019, 613 people lost their lives in Texas commercial vehicle crashes. Loss of life in truck accidents must be prevented through an abundance of caution in traffic safety. Some say this legislation gives trucking companies a free pass. HB 19 opponents point out that it shields what could be valuable information from jurors making decisions in court about personal injury cases.

This law will go into effect in Texas on September 1, 2021.

Article Reviewed By Justin McMinn, JD


Reid Martin and Jack Walker Earn Selection to Texas Super Lawyers for 2021

TYLER, Texas – The founding partners of Martin Walker law firm – Reid Martin and Jack Walker – have been named to the list of Texas Super Lawyers again this year, earning recognition for their skill at representing people harmed through personal injury and medical malpractice.

 

The 2021 honors represent three years running that Mr. Walker has been selected to the list of top attorneys in the state, and two years in a row for Mr. Martin. The Martin Walker law firm handles cases involving wrongful death, medical malpractice, worker injuries, truck crashes and other catastrophic personal injury claims. Both attorneys are Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization.

 

Super Lawyers, owned by Thomson Reuters, recognizes no more than the top 5 percent of attorneys in each state. The selection process includes peer nominations, followed by independent research, then peer evaluation by top lawyers in the same practice areas.

 

“Other lawyers have a pretty good understanding of the skills needed for the work we do and who can handle themselves in front of a jury,” said Mr. Walker. “In that sense, this is indeed an honor.”

 

This is just the latest recognition for Mr. Martin and Mr. Walker, who last month, along with the firm’s Marisa Schouten, were named to the 2022 list of Best Lawyers in America.

 

“Receiving accolades from our peers is always special, but the greatest reward is knowing that we’ve been able to achieve a little justice for the people we represent who have been greatly harmed,” said Mr. Martin.

 

The full listing of Texas Super Lawyers honorees appears in the October issue of Texas Monthly and the Texas edition of Super Lawyers magazine. It’s available online at https://www.superlawyers.com/.

 

Martin Walker, P.C. is a Tyler-based law firm with significant trial expertise representing individuals statewide in high-stakes litigation, including medical malpractice, catastrophic injuries involving 18-wheeler accidents, oilfield injuries, wrongful death, and product liability.


Brain Injury

BRAIN INJURIES: The Hidden Symptoms

When it comes to serious physical injuries, a brain injury ranks among the worst. The hours, days, weeks, and months following this type of injury can be difficult for your loved one and the rest of your family.

Brain injuries can vary in severity and often can result in a wide range of symptoms, including headaches, changes in mental status or personality, memory loss, speech difficulties, seizures, or a host of other complications.

Traumatic brain injuries (TBIs) compose just one category of brain injury. These injuries occur when an external force of some kind deals a blow, crushes, or penetrates the head. These injuries can include:

 

  • Closed Head Injury: Also known as a closed brain injury, this type of head injury deals a sharp blow to the head that batters the brain but does not penetrate it. A concussion is a classic example of a closed brain injury.
  • Open Wound Brain Injury: Also known as a penetration brain injury, this type of damage is less frequently seen but is extremely serious. Someone with this type of injury risks brain exposure and infection through the breakage of the skull.
  • Crushing Brain Injury: Often considered the most dangerous and life-threatening form of TBI, a crushing injury tends to be the least common and involves the crushing of the skull and brain — typically between two solid objects.

 

When a family member suffers a TBI, it can be hard to know what to do or how to react. Your loved one may seem different or “off;” you can see that they’re struggling, but you may not know what to say or how to help them. Adjusting to life with a TBI will be difficult for them and for you.

In cases like this, it’s important to know that you are not alone. It is estimated that 2.8 million people sustain traumatic brain injuries each year in the United States. Of those individuals:

  • 2.5 million are treated and released from an emergency department;
  • 282,000 are hospitalized; and
  • 50,000 die of their injuries.

When you’re facing this kind of situation, what are some of the things you can do to help your loved one deal with their traumatic brain injury? We’ve put together a list of tips of traumatic brain injury help for the family of someone who suffers from this type of injury:

  1. Be as Patient as Possible with Your Loved One

Brain injuries are diverse and their side effects are often unpredictable. As such, as basic as this may seem, it’s imperative that, as a caregiver, you remain as patient as possible with your loved one during this time. They may seem very different from one day to the next, and some days will be better than others.

Trying to be patient can present a challenge, as you may find yourself needing to tell them the same things repeatedly. However, it’s important to remember that your loved one is going through what may be the worst time of their life; they need your love, patience, and support, not your negativity or judgment.

Also, don’t take it personally if they randomly seem agitated or angry with you. Expressing confusion, frustration, and other negative emotions is not uncommon for patients after they suffer a TBI. For example, damage to the temporal lobe or frontal lobe regions of the brain often results in issues controlling “negative” emotions.

  1. Help Your Loved One Become Organized

Memory loss is a common side effect of a traumatic brain injury. If your loved one suffers from memory issues as a result of their injury, it may be hard for them to remember where they put things, appointments they need to keep, or remember how to accomplish everyday tasks.

This is where you can step in and help them become more organized, depending on the severity of their TBI. However, just be sure to do this respectfully so they don’t feel overwhelmed or like you’re being condescending or controlling.

Some of the ways that you can help include:

  • Helping your loved one come up with lists to help them stay organized;
  • Labeling cabinets, drawers, baskets and other areas to help them remember where they can find things;
  • Explaining activities as much as possible before engaging in them, and reviewing each of those steps as you’re doing them;
  • Teaching them how to set calendar reminders on their cell phone; and
  • Offering to drive them to their appointments.
  1. Get Them out of the House

After a TBI, your loved one may just want to stay home and do nothing. This, in combination with their physical injury to their brain, may lead to feelings of anxiety or depression. It’s important for people with these kinds of injuries to get them out of the house for a few hours.

However, just keep in mind that wherever you choose to take them, it shouldn’t be somewhere that will exacerbate their sensitivities to light and sound, won’t jostle their head, or increase any potential discomfort they may feel about being in large crowds, etc. Somewhere quiet, such as a small restaurant or massage parlor, is usually a good idea.

  1. Provide a Sense of Normalcy and Structure to Their Life

Traumatic brain injuries change almost everything in a person’s life. Your loved one has found themselves in an unfamiliar situation and likely feels out of place, uncomfortable, fatigued, and uncertain about how to act or react.

Some recommendations from the Model Systems Knowledge Translation Center (MSKTC) for how to do this include:

  • Establishing and maintaining a daily routine;
  • Placing objects the person needs within easy reach;
  • Encouraging your loved one to rest frequently;
  • Being as natural with the person as possible to help them to maintain their former status in the family;
  • Speaking with them in your normal tone of voice (don’t talk down to them) and involving them in conversations to help them continue to feel involved and social;
  • Including the person in family activities;
  • Keeping a calendar of activities visible on the wall and/or add them to their phone calendar; and
  • Maintaining a photo album with labeled pictures of friends, family members, and familiar places can help them reacquaint themselves.
  1. Provide Some of the Comforts of Home

If your loved one is at a hospital in a coma or is living in a rehabilitation center, they’re in a very unfamiliar environment and are likely to feel frightened, overwhelmed, frustrated, and/or exhausted. To help them feel more comfortable, you can provide them with some familiar and comforting items, such as quietly playing some of their favorite music, bringing them their favorite blanket, a favorite snack, or even a stuffed toy.

Spend time with them so they don’t feel alone, but also be sure to give them plenty of time to rest and recover.

  1. Offer to Run Errands for Your Loved One

Your loved one may feel fatigued or lack energy if they’ve sustained even a mild TBI — or they may struggle with some everyday tasks if they’ve sustained a more severe injury. You can offer to run errands for them, such as going to the store to pick up milk, food, or even toilet paper that they need. Or, you can even clean their kitchen or prepare some food for them.

Your loved one may need the help but may not want to ask for it due to fear that they’ll come across as needy or unable to do things for themselves. By asking them instead of waiting for them to ask you, you’re helping them with what they need while enabling them to still feel more independent.

If your loved one has suffered a traumatic brain injury, it is hard to stand by and watch them struggle. Check out our simplified guide to traumatic brain injuries to learn more about what your loved one is going through and how best to help them throughout their recovery.

 

Author and Refences by: M.D. Neurologist Richard Senelick and Spinal Cord

Paper photo created by freepik - www.freepik.com


Work Injury

I WAS INJURED AT WORK. NOW WHAT?

The first step that you should take is to obtain the medical care you need and inform your employer of the injury. In some cases, most companies have a policy of a certain time period that you can claim your injury; sometimes the same day, depending on the situation and severity.

(Workers’ Compensation Division’s Approved List of Doctors (ADL). www.tdi.texas.gov)

The next step is to provide notice within 30 days of the incident along with a copy of a DWC-41 to be submitted to the division office.

However, hiring an experienced lawyer to help you through this process should always be considered.

Martin Walker PC is a Tyler-based law firm with significant trail expertise representing individuals in oilfield injuries, workers compensation, wrongful death and product liability. For more information visit: http://www.martinwalkerlaw.com/


Three Martin Walker Attorneys Selected to 2022 Best Lawyers in America

Trial lawyers Reid WM. Martin, John F. (Jack) Walker III, and Marisa Schouten have each been recognized in the 2022 issue of The Best Lawyers in America, considered the oldest and one of the most respected legal guides in the U.S.

Mr. Walker and Ms. Schouten were chosen for their experience representing individuals in personal injury and wrongful death litigation. Mr. Martin was honored for his work representing plaintiffs in medical malpractice lawsuits. Mr. Martin and Mr. Walker, who founded the firm in 2006, are Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. Ms. Schouten is Board Certified in Civil Appellate Law.

“It’s been a challenging year for everyone,” said Mr. Martin. “But I believe that, as a firm, we’ve come together, doubled our efforts, and done some of our best work. Being recognized for that is really tremendous.”

Martin Walker PC has received numerous honors for its work over the years. In addition to Best Lawyers, Mr. Martin and Mr. Walker have each been included on Thomson Reuters’ annual list of Texas Super Lawyers and in the list of 500 Leading Plaintiff Consumer Lawyers. The firm was also inducted into the Verdicts Hall of Fame by Texas Lawyer magazine for winning a $43.32 million judgment against East Texas Medical Center in 2018, the largest medical malpractice verdict in the state for that year.

“We take this recognition very seriously,” said Mr. Walker. “For us, it’s a constant reminder to do more, to go a little further, and work harder for those we represent.”

Attorneys selected to The Best Lawyers in America are chosen by peers practicing in the same area and geographic region. The Best Lawyers research team then puts each nominee through a vigorous review process before making its final selections. For the full list, visit https://www.bestlawyers.com/.


Who Is Responsible When Computers Make Medical Errors?

With more and more advanced technology supplementing and, in some cases, supplanting traditional medical staff, one has to wonder just who is responsible when a high tech medical machine or computer program malfunctions.

The answer is somewhat complicated. In some cases, harm is caused by errors or negligence on the part of the medical staff. In other cases, as demonstrated in a string of radiation therapy accidents, the tools medical professionals use can be the root cause of injuries or deaths. In such incidents, the fault would lie with the manufacturer of the medical device. But now, with computer programs and Artificial Intelligence algorithms taking the place of traditional medical staff, finding the correct answer has become more difficult.

Another difficult to answer question is: who is even responsible for regulating the increased usage of software in medical treatments? According to an article at legalexaminer.com, the FDA will likely ultimately have the power to regulate AI usage in medical devices, but even then there are challenges and difficult classifications that will have to be made. Certain rules, like how to even track the reliability of AI software have yet to be written or finalized.

Whatever happens, the next few years will be interesting as rules and laws catch up to rapidly advancing high tech healthcare treatments.


Drug Overdoes Deaths Rose Sharply During The Pandemic

Overdoses deaths rose by nearly 30% last year amid the uncertainty of the COVID-19 pandemic and the ongoing opioid epidemic says the Centers for Disease Control. Their records indicate that more than 93,000 died from drug overdoses in 2020 compared to 72,151. They note that opioid deaths led the way with 69,710 of those deaths. The CDC attributed the rise to both the stresses of the last year and the increased difficulty in seeking treatment thanks to the pandemic.

These rises come even as major producers of opioids like Purdue Pharma who introduced Oxycontin have caught scrutiny and federal lawsuits for their role in the wide overuse of their drugs. Recently, the Sackler family who own Purdue Pharma were forced into a $4.5 billion settlement with several states as they dismantle their company after several high profile cases against them.

Officials hope that lessons learned while fighting the spread of COVID-19 can help battle back these large increases in yearly drug overdoses. The thought is that a more national strategy along with stricter FDA guidance could help dramatically lower dangerous prescriptions of opioids and better police their misuse.


Amazon.com In Trouble For Selling Products That Are Defective Or Dangerous

Amazon.com is one of the world's most popular online stores. From bandaids to yachts, they sell just about anything and everything you might want to buy. They are helpful, too, with top selling products marked with labels like "Amazon's Choice" seeming to point out the creme of the crop in any given category. Amazon even maintains it's own in house "Amazon Basics" line of many types of popular products. There's just one problem says The Wall Street Journal, the Wirecutter, The Verge, CNBC and others: Amazon's idilic store is jam packed full of dangerous fakes and counterfeits. Even customers who try and stick to Amazon's own brands and products listed as top sellers aren't safe from fakes.

What are the risks? The Wall Street Journal founds thousands of products that had been marked as unsafe or had been banned from sale in the US. The Verge found that resellers that offer products on Amazon's marketplace had taken to making fake version of Amazon Basics products. They would resurrect old listings by changing their text and images to mirror popular Amazon Basics products like video cables when they were actually offloading unrelated products. CNBC found that some resellers on Amazon.com were shipping expired food products like baby formula to customers.

Now, after a mountain of complaints, the U.S. Consumer Product Safety Commission has stepped in. They have sued Amazon over some 24,000 products that they say are faulty, non-functional, or dangerous. The list ranges from carbon monoxide detectors that don't work to children's pajamas that don't meet important fire safety requirements. The CPSC notes that it can be very difficult for shoppers to tell who they are buying these products from. In some cases Amazon itself acts as the warehouse and distributor for 3rd party sellers making it confusing as to who is at fault if a product turns out to be defective or dangerous. Frustratingly, Amazon has a great deal of protection even when it directs consumers to dangerous products. Since they are only acting as a listing service they can often escape liability as long as they are responsive to complaints and stop listing bad products when they are made aware of the dangers.

Amazon claims it has done just that. The company says it has delisted, blocked, and even destroyed millions of dangerous and counterfeit products. The CPSC, for its part, says that the current laws surrounding recalls are too restrictive as each recall has to be negotiated separately. That might work for a single company that only sells a few products. But it makes it almost impossible to protect consumers who use the Internet's largest superstore.


2020 Saw A Worrying Increase In Pedestrian Accidents

It is, of course, an understatement to say that the COVID-19 pandemic has affected many, many aspects of our lives. One of the more unexpected impacts of the pandemic is the effects it has had on driving and driving accidents. There have already been reports and studies showing that the number of vehicle related deaths rose sharply in 2020 even as many of us stayed home and avoided crowded restaurants and entertainment venues.

Unfortunately, the same sharp rise in deaths appears to be true of pedestrians accidents during the pandemic, as well. A new report from the Governors Highway Safety Association shows a worrying trend. In 2020, some 2,957 pedestrians were struck and killed. Similar to general vehicle on vehicle traffic deaths, this number isn't vastly changed from its 2019 version. The problem, once again, is that there were far fewer cars on the road and far fewer miles driven in 2020 vs 2019. Working the math, we see that there was actually a 20% increase in pedestrian deaths in 2020.

The root cause seems to be the same as what spurred a rise in vehicle deaths: With far less drivers on the roads, the mix of good drivers to bad ones swung in the wrong direction. Additionally, reckless drivers may have taken the emptier roads as an open playground for faster, more dangerous driving with the predictable end results far outweighing the fewer miles driven.