June 19th, 2019

Are Personal Injury Cases Plummeting?

Harvard Law introduced today something called the Caselaw Access Project. All they did was take 360 years worth of American jurisprudence until 2018 and make it easily searchable by terms. Then you can see trends.

How extensive is the CAP web site?

Our scope includes all state courts, federal courts, and territorial courts for American Samoa, Dakota Territory, Guam, Native American Courts, Navajo Nation, and the Northern Mariana Islands. Our earliest case is from 1658, and our most recent cases are from 2018.

Just that. Pretty cool, right?

Given all the noise that gets made in the press about personal injury cases I decided to pop the phrase “personal injury” into the search bar to see how much of an impact my little corner of the law is having on the courts.

Two fast observations: First, as you can see from this graph for the years 1900-2019, the number of personal injury cases has been plummeting for the past 20 years:

On the vertical axis to the left is the overall percent of cases in which the term comes up. On the bottom horizontal axis are the years, and you can set whatever years you want in order to find the trends. I used 1900 as my start date because I’m a sucker for round numbers. You can noodle with it and pick other years if you like.

When you go to the live site you get more data than mere screen grabs and can fine tune a bit. And for this we find that the peak year was 1996 when the term was mentioned in 3.4% of the cases. And that was at the peak.

Currently, personal injury is mentioned in just 1.9% of cases, a stunning drop of 44% in just 23 years.

You can also, if you like, look at the data in absolute numbers as opposed to percentages. You’ll find a similar drop looking at it that way.

The drop is even more stunning when you use the word negligence (which obviously would be used more often due to a greater variety of circumstances). This time I ran the chart from 1800 until today so that you see an even longer term trend, from 14% to 6.4%, with peak use of the word in 1907:

What are the reasons for the drop? I’ll probably write more on that another day. But safer products, safer cars and safety laws such as mandatory seatbelts are likely to be contributing factors.

I speculated back in 2014 that the rapidly advancing tech that’s being designed for self-driving cars would have that effect, as some of the tech finds its way into “regular” cars. I described how that happens earlier this year in discussing the death of the stick shift, in part due to safety technology.

One more graph for you, this showing how the number of injuries from car collision has also dropped — from its peak also in 1996. This from the National Highway Transportation Board:

Expect a wealth of analysis to come out of this new website as policy wonks look more intensely as to the trends in our courts. It would be easy to spend hours looking at this stuff. I spent only 30 minutes, but will return.

Quick pro tip for law students: Don’t go into personal injury law.

 

May 14th, 2019

Dear Media: Can you stop using the word “accident”?

I think I need a “Leaving Accident” sign.

It’s a funny place to find a story on personal injury law — inside the pages of Outside Magazine. But when a good point is made, it makes no difference where that point is found.

Outside gets involved because the article is called: How We Talk About Drivers Hitting Cyclists. It seems that bicycle riders aren’t too keen on getting hit by vehicles that are much bigger than they are, and getting squashed or worse. And so, an outdoors magazine hits a junction with personal injury law.

Their story starts with a triathlete out for a spin getting bounced off the grill of a Ford F-150 and soaring through the air to an unhappy landing that was, thankfully, survived, albeit with significant injuries.

But the story isn’t really about that one rider, or the many other bicycle riders that have been hit and injured or killed by cars and trucks.

The story is about how the media writes about those crashes, with the subtle (mis)use of language leading to a shifting of blame, or a minimizing of the significance on how the crash took place:

News stories often play a key role in shaping public understanding of traffic safety. And when news stories victim-blame or fail to convey the larger context in which these crashes take place, they do deep injustice to the victims and the conversation about road safety in general.

In the past, I’ve noted that the word “accident” is a poor language choice to describe a motor vehicle collision or other mishap, as that word is the same one used for a deer that bolts into the road. Why use the same word for an unavoidable crash as you would for one that is avoidable with reasonable care?

Even the NYC Police Department noted this problem in 2013 when it changed its Accident Investigation Squad to the Collision Investigation Squad.

Sometimes, of course, this misuse of language is intentional. Such was the case when Senator Rand Paul decided to excuse the negligence of BP during the Deep Water Horizon blowout in 2010 that polluted the Gulf of Mexico:

“And I think it’s part of this sort of blame-game society in the sense that it’s always got to be somebody’s fault instead of the fact that maybe sometimes accidents happen,”

Well, yeah. It wasn’t Mother Nature at fault there. It was humans. And the question was who to hold accountable for the disaster. That assumes, of course, that Senator Paul actually cared about accountability.

OK, I digressed. Let’s return to the unintentional biases of language that gets used to whitewash responsibility.

Outside writer Joe Lindsey breaks it down further that I simplistically had on prior occasions, with these points that come from two studies on the use of language in media:

Two new studies on inaccuracy and subtle bias in mainstream-media reporting about driver-cyclist crashes highlight the extent of these issues. What they show make clear just how deeply rooted the problem is—and how difficult it will be to fix.

Those studies fixed on three issues related to language: First, words that indicated whether the cyclist or the driver was assigned blame for the crash; Second, the use of passive, clinical language that reduced the human role; and Third, whether the stories framed the crash as a one-off episode or put in a larger context of road safety.

In reviewing 200 serious crashes, researchers found that in 80% of them, news writers described the main actor in the crash as a vehicle —- not as a person:

“Sometimes the story would say that the person was hit by a car, which is passive,” says Tara Goddard, an assistant professor of urban planning at Texas A&M, who was involved in the study. This language distances the driver’s actions from the crash. 

Cars, of course, don’t generally get up out of the driveway on their own to run someone down. A driver needs to be involved.

And then there’s the use of the word “Accident.” The other of the two studies found that in 189 news reports of cyclist fatalities in crashes in a Florida county over a ten-year period, that “accident” appeared in 48 of them; another 12 used the word “incident.” In 55 of the stories, no mention was made of a human driver.

Of course, except for those cases where nature has intervened (the deer bolting into the road example) virtually every crash involves human error of some kind. But the stories, oft times, simply don’t reflect that.

And third, there was the victim blaming. While this may be an age-old staple of both criminal and civil defense trial lawyers, the objective media writer doesn’t stand in the shoes of an advocate.

Why, for example, would a news writer mention that a cyclist who was hit by a truck moving 60 mph note that the rider wasn’t wearing a helmet? It wouldn’t matter, so why skew the reader toward a narrative that is utterly irrelevant?

Presenting factoids, the Outside piece argues, takes the light off of significant safety factors (for example, road design) to make the crash seem like a one-off instead of part of a larger community safety problem.

This factoid presentation is then compounded, sometimes, by bias, or simple sloppiness of an investigator who provides initial thoughts to the press — thoughts that are often wrong, as the Gothamist has pointed out.

The desperate need for speed in reporting these days, with news cycles that have evaporated, means that initial information (often from anonymous police sources) is often both wrong and repeated.

But the limitations and problems of the need to file stories quickly are, by now, well appreciated by the press. And it means that they need to be doubly careful in that choice of words: Careful that crashes are not downgraded to mere accidents; that drivers/riders are held to blame instead of vehicles; that collisions are seen within the broader context of community safety; and that victims are not chastised as blameworthy based solely on irrelevant factoids.

 

April 30th, 2019

Covering Up the “Accident”: Cops and Pols Edition

Mayor de Blasio emerges from a car. Source: Daily News

I knew I’d seen this act before. A routine car collision gets covered up. Why? Because a politician was in the car.

When I first wrote about it 10 years ago it was Jeanine Pirro in the back seat with her then-husband Al Pirro. Their vehicle, owned by Al, sideswiped a motorcycle and the rider was injured.

After seeing who was in the car, the original accident report (more properly called a collision report) was deep-sixed and the Pirro vehicle magically disappeared from the second accident report. The cops called the Harley rider a fraud and listed it as a one-vehicle accident.

Except that someone already had a copy of that first report, and the cops were caught covering up the crash.

Fast forward to this week, and it is Mayor de Blasio in the car with his wife that is involved in a collision, and the story hits the Daily News — four years after it happened.

Apparently, a car veered into his lane and hit the mayoral SUV. I say apparently because that was the lede in the story:

On a Saturday morning in August 2015, Mayor de Blasio was in the back seat of a black NYPD Chevy Tahoe bound for an event in Harlem when a driver changing lanes slammed into his ride.No one was hurt. No big deal, right?

Except that the police decided to cover it up. Instinct perhaps?

Back to the story:


No one was hurt, but the commanding officer of the mayor’s executive protection unit, Howard Redmond, was furious. Text messages obtained by the Daily News show he immediately ordered the incident be covered up to protect de Blasio’s image.


“As per CO [the commanding officer] no one is to know about this,” Sgt. Jerry Ioveno texted members of the unit, referring to Redmond. “Not even the other teams.”


“No one is to know,” he repeated.

Why this would reflect badly on the Mayor is beyond me, even if the Mayor’s driver was at fault. He, after all, was a passenger.

But the NYPD was worried about optics. If there are bad optics, then yeah, maybe it does reflect badly. On the NYPD. And its driver. If the NYPD driver was actually the one at fault.

But the story just gets weirder:

Redmond allegedly ordered that the cop behind the wheel, Detective Edgar Robles, be officially listed as the driver of a backup SUV, text messages show. That way, the unit could more plausibly claim the mayor wasn’t in the vehicle involved in the collision, a source close to the executive protection unit said.

Then, buried down further in the article, it hits: It was the NYPD at fault. Not the other driver:

NYPD spokesman Phil Walzak told The News that the NYPD investigated the accident involving de Blasio’s SUV “and determined the NYPD was at fault. Far from a coverup, this in fact shows the exact opposite – the NYPD took this incident seriously.”

The text messages are almost comical in their ham-handed way of covering up the crash — successfully for years. Some of the texts:

“Is Eagle p—-d?” Ioveno asked in a text message, using de Blasio’s code name.
“Not really,” a detective wrote.

“Redmond hell-bent that this doesn’t get out to anyone, we need to kill the story,” executive protection unit cop Jorge Bravo wrote.

“He went off on OPTICS of this detail – the little things (double-parking and crosswalk s–t),” Bravo added…

“No one is to know; also, Eagle was not in the limo … are we clear guys please?” Ioveno said, using the code word limo for the NYPD Chevy Tahoe.

And then came a second crash, this one involving city First Lady Chirlane McCray, multiple vehicles and disappearing witnesses. And in this crash, someone was hurt.

The NYPD went all in, it seems, on trying to cover this one up also. As per one of the attorneys involved:

“The way the police report is written, you can kind of tell they’re covering something up,” Grossman said. “If you see the diagram — it doesn’t make sense. … They seemed to whisk everybody away without anybody saying anything.”

And so it goes. Negligence happens and those who are supposed to document what happens decide to come up with “alternative facts” and hide the witnesses so that innocent victims are frustrated in their ability to find out what actually happened.

The more the world changes, the more it stays the same. Except that sometimes emails and texts help with the Big Reveal.

 

January 21st, 2019

The Death of the Stick Shift (Blame Safety)

My first car looked a bit like this. Loved it.

My first car was a 1982 Honda Accord hatchback. Five-speed stick. Roll down windows. Manual locks. No A/C.

I learned to drive stick when my older brother needed me to drive his manual transmission car back from Philadelphia to Long Island. I got a lesson on Saturday. And drove it solo out of Center City Philly to New York on Sunday. Only stalled once.

My theory in buying my no-frills Honda was simple: The fewer things that were automated the fewer things there were to break. And nothing ever broke in that car. It was a great car and I took many a trip back in it back and forth to Buffalo during law school.

But cars and Manhattan are not a good match and when I moved there in 1986 it was time to kiss it good bye. When I needed a car I would rent one and those rentals were far cheaper than the cost of garaging it.

(Hang with me a bit here and I’ll get to the safety and personal injury stuff.)

When I moved to the suburbs after 13 years of city living it was time to motor up again. But I had a problem, and part of that problem was a pipestem driveway. And Mrs. NYPILB (she loves that acronym!) didn’t drive stick, didn’t know from clutches, and didn’t want to learn the three-pedal two-step. In twenty years of marriage that’s the worst I can say about her so I figure I’m pretty far ahead of the game.

Having a two-car family and a pipestem driveway would mean constant car shuffling. I let the fun of driving stick slip away since my car was mostly going to the train station anyway. And that’s just the way it was.

When Dear Daughter was old enough to drive, she followed in her mother’s footsteps.

But Dear Son thinks differently. He’s a car guy. Want to know what that car in front of you is? He’ll tell you in two seconds based on the tail lights. At night. Ask him what he wants to be when he gets older and he’ll tell you a McLaren owner. But he’ll settle for a Lambo if he has to.

Until he started talking car stuff, I had no idea that tail lights could be an art. Or that there really was much difference. I was simply oblivious since I’m not a car guy.

So with the lease being up on my Subaru Impreza hatchback, I needed to go car shopping. But I confess that I love this vehicle because of its all wheel drive and the car’s many safety features, which you can’t dismiss when you’re looking at teenagers coming of driving age. Dollar-for-dollar you get a lot of bang for the buck.

I took Dear Son with me to look at a couple of cars, including the next gen Impreza. Guess who wants to drive stick? Yeah.

But the salesman I spoke with let me know the deal: If I want the stick and clutch, I can’t get the Eye Sight Driver Assist. What’s Eye Sight? That’s the computer that not only beeps when you change lanes without signaling, but more importantly will automatically brake when a car or pedestrian is too close in front.

So if a car coming at you in the opposing lane suddenly makes the dreaded left turn in front of you, or a drunk pedestrian steps off the curb in front, the computer might well react before you. Split seconds can make a difference. Literally.

As you might assume from the bear bones ’82 Honda I started with, I’ve never been one for tech features in a car — I’m the type that never uses the cruise control. Digital doodads don’t light my fire. I want to drive a car, not be driven. And I think self driving features are dangerous because they promote inattention.

That’s one of the things about driving stick — you can’t be inattentive. Unless you are cruising on the highway you are constantly engaged. You’ll never see someone driving stick and texting, or eating a hamburger, or even drinking coffee. Not in local traffic, anyway.

Most collisions (not accidents) happen due to driver inattention, and driving stick is the opposite of inattention.

But there’s no getting around the fact that the Eye Sight Driver Assist is not only good tech, but tech that remains invisible until called into play. It’s part of the wave of advanced safety features that are coming as car companies automate their vehicles.

It’s part that same tech wave that will decrease traffic into emergency rooms, and the offices of personal injury lawyers. If you’re in law school thinking this is what you want to do, I strongly suggest you make a sharp turn sooner rather than later.

That tech, however, is incompatible with a manual transmission. You can choose between a valuable safety feature — one that will become far more ubiquitous as the years roll by — or the fun and engagement of driving stick. But you can’t have both.

Last year Motor Trend wrote that Subaru might kill the stick altogether in the name of safety. And Motor Trend wasn’t the only one reporting the news of the likely demise of the company’s stick.

(Another tech development that will help drive a stake through the stick is an app on your phone that allows you to remotely start your car minutes before you get there. When it’s 100 degrees outside, or 10 degrees, that’s going to be a valuable and desired feature. But manual transmissions get parked in gear, not neutral, and you can’t remotely start a car that’s in gear.)

Driving a manual transmission is not only fun, but a valuable skill. It allows you to feel how the car works, and be more engaged with your surroundings, even if you are clueless under the hood.

Manual transmissions have, of course, been declining in the United States for several decades, due to ease of use for the automatic. They used to at least have the advantage of being cheaper engines and better on gas, but even that has changed. The computers on the automatic can nowget better mileage that you can with the clutch.

When you add up the long term decline of stick due to ease of use of the automatic, with the breakneck speed of technological safety improvement, you get a recipe for stick-the-fork-in-its-done.

In ten years the manual transmission, beloved by a decreasing percentage of car drivers, will be little more than a specialty item that needs to be custom ordered. It pains me to say it, but the stick is dead. Ultimately killed by safety.

 

October 23rd, 2017

Court: Junk Science Tossed Into Junker

Fun in Hollywood, not so much in the courtroom.

Most people when they hear about “junk science” assume that plaintiffs’ attorneys are trying to fabricate some pseudo-science to make out a case, usually in the context of a novel class action theory.

But those of us in the trenches know otherwise, that this isn’t the main problem. Junk science, on a day-to-day basis, is far more likely to spill from the mouths of defense experts in routine cases. I showed this a few years ago in a multi-part series dedicated to quickie medical exams by doctors hired by the defense. A three minute exam and presto!  — a finding that the plaintiff either isn’t injured, or that any injuries s/he has were pre-existing.

Some doctors are doing 1,000+ exams per year like this in the service of the insurance defense industry, which is quite the living if you don’t mind sacrificing your conscience.

Today I turn my sights on the biomechanical engineer. This is the person that will generally look at the vehicles in a crash (not an accident), and deconstruct it in such a way to determine that the victim wasn’t really injured by it. Four years ago Justice Arlene Bluth deconstructed that collision deconstruction for one such engineer, essentially showing the bogusosity of it all. (Is bogusosity a word? It should be.)

Last week the Appellate Division (Second Department) weighed in on that subject. And they were no more kind to the defense “expert” than Justice Bluth was.

Dovberg v Laubach was a hit-in-the-rear collision on the Long Island Expressway that pushed the plaintiff’s car into a tow truck in front of her:

The accident occurred when [the defendants’ vehicle] struck a vehicle operated by Scott Ramunni in the rear, propelling it into the rear of the plaintiff’s vehicle. The plaintiff’s vehicle was then propelled into a tow truck in front of her.

The key part of the story was how the plaintiff said that the injuries to her knees occurred — by striking the steering wheel or dashboard.

Dr. Alfred P. Bowles, II

So far, nothing out of the ordinary, right? But then the defendants said they would produce Dr. Alfred Bowles as an expert, he being a biomechanical engineer and board-certified surgeon. And he would testify “that the force generated by the accident could not have caused any of the plaintiff’s alleged knee injuries, and that those alleged injuries were the result of wear and tear from athletic activities.”

And how would Dr. Bowles do that? By looking at the medical records and the depositions.

Really. According to the decision of the appellate court, that was what he would rely upon. Not even an analysis of the damage to the vehicles themselves? Or the position of the body? This is science?

Oh, and some books. As per the decision, Dr. Bowles would also rely upon:

scholarly works that were published in the fields of medicine and biomedical engineering, and had gained general acceptance in those fields. In support of this claim, the defendants listed the names of three works, which, according to their titles, involved head, neck, and mandible injuries. The authors, years of publication, and contents of these works were not set forth. [emphasis added]

The trial court permitted this dubious testimony to go forward, allowing him to testify “with a reasonable degree of engineering certainty, [that] the force generated by a low speed rear-end collision that propelled a vehicle into a 2000 Ford Taurus would not have caused the driver of the Ford Taurus to hit her knees against the dashboard.”

A defense verdict resulted on the issue of causation.

But on appeal the Second Department was, shall we say, less than impressed with this testimony. And this was likely the reason:

Although Bowles did not know how close the plaintiff’s seat was positioned to the steering wheel and dashboard at the time of the accident, he maintained that moving the seat up would not increase the likelihood of a driver’s knees hitting the dashboard in a rear-end collision.

So no one asked the plaintiff how far forward the seat was — which is to say the actual position of the injured driver  — and then the expert testified that it didn’t matter? Distance to the dashboard didn’t matter? One inch and twelve inches are the same? Can you say bogusosity?

After a brief discussion of the long-recognized rule of Frye v United States — in that expert testimony must be based on scientific principles or procedures and is admissible only after a principle or procedure has gained general acceptance in its specified field — the court swiftly deconstructed Dr. Bowles’ testimony.

The court noted that the

“expert disclosure notice simply stated that Bowles analyzed the medical and engineering aspects of the accident. While the defendants cited to three works in opposition to the motion in limine, they did not identify the authors, years of publication, and contents of those works, or any explanation as to their relevance in evaluating the cause of knee injuries. Moreover, the defendants provided no description of the methodology Bowles utilized to determine the force of the accident, and the biomechanical engineering principles he relied upon in reaching his conclusion that the force generated by the accident could not have caused the plaintiff’s knees to come into contact with the vehicle dashboard.

The court didn’t use the phrase “junk science,” or bogusosity, but I will. Because that’s the way I read this opinion.  Your mileage may vary but, frankly, I don’t see how.

So the next time you hear about junk science, you should understand and appreciate that, on a day to day basis, this is not some plaintiffs’-side invention.

The essential business model of insurance companies is to collect as much as possible in premiums and pay out as little as possible (while investing the money in the interim). Many insurance companies, and adjusters, and their syncofantic witnesses who profit from this form of testimony, don’t seem to particularly care how that preservation of premiums is accomplished. Or who gets screwed by their process.