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Society & Culture

Personal Injury Primer

Updated 7 days ago

Society & Culture
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Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law. Brought to you by the Law Offices Of David W Holub, an Indiana personal injury law firm concentrating on medical malpractice, auto accident, product liability and wrongful death litigation.

Read more

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law. Brought to you by the Law Offices Of David W Holub, an Indiana personal injury law firm concentrating on medical malpractice, auto accident, product liability and wrongful death litigation.

iTunes Ratings

3 Ratings
Average Ratings
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0

Good podcast

By hairbeardown - Jul 10 2019
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I practice law as captive counsel for a large insurance carrier. This pod has been informative and interesting but most of all educational. I really like that it focuses on issues that are pretty universal to both plaintiff and defense.

iTunes Ratings

3 Ratings
Average Ratings
3
0
0
0
0

Good podcast

By hairbeardown - Jul 10 2019
Read more
I practice law as captive counsel for a large insurance carrier. This pod has been informative and interesting but most of all educational. I really like that it focuses on issues that are pretty universal to both plaintiff and defense.
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Personal Injury Primer

Latest release on Feb 19, 2020

All 10 episodes from oldest to newest

Ep 39 – Who is Legally Responsible When a Robotic Car Causes a Crash?

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Who is Legally Responsible When a Robotic Car Causes a Crash?

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I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today’s question comes from a listener who said

“Did you see that Hawaii-5-0 episode with the robot car? Who would be legally responsible if a robotic car caused a Car Crash?

This is an interesting question. Robot cars, or what they call autonomous driving vehicles are supposed to be very common by 2025. In fact, many manufactures expect that 5G wireless networks will make self-driving cars the primary means of transportation.

For now, we are just seeing occasional headlines about self-driving cars. Soon we’ll either have one or know of people who have one.

But will a self-driving car be able to avoid collisions without human intervention, and do so safely and securely without risking injury to passengers in the event of a crash?

Do you really want a robot driving you around in a four wheeled vehicle at highway speeds on a scenic cliffside highway?

Do you want to risk injury to your family because of a crash caused by some algorithm or formula that does not recognize correctly the edge of a cliff? Or, misreads a red traffic signal as green? Or rear-ends you because you forgot to turn on your headlights (and taillights) when you left the grocery store and it could not discern your car on the highway?

When a crash happens, how do you hold a machine responsible for injuring a person?

My educated guess, and that is all it is, is that the law will hold the owners of the vehicle legally responsible for mistakes made in driving by the vehicle. And, the law will hold manufacturers responsible for manufacturing defects that contributed to cause the crash.

Right now, when a car component, such as an airbag malfunctions, the car maker, and the component supplier (for example Takata in the case of Takata airbags) can be held legally responsible.

Which causes me to ask, would you buy a self-driving car system made by Takata?

If you or a loved one has been injured in a motor vehicle collision (whether caused by a person or a robot) please call to speak with one of our attorneys about your situation.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.

Feb 19 2020

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Ep 38 – Legal Options When a Social Media Account is Suspended

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What are my Legal Options if my Social Media Account is Suspended?

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I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today’s question comes from a caller who says “My social media account was suspended, what are my legal options?”

Well, this question is a bit off topic. It does not deal with personal injury law directly. But, since we do often advise people of the hazards of posting to social media while a lawsuit is pending, we’ll address the question anyway.

Freedom of speech is a simple concept.

Modern day social media is little more than an electronic traditional daily newspaper which affords people the opportunity to state their opinions for free. Like a newspaper printing a letter to the editor.

Of course, the social media platform makes money by permitting people to by ads and intersperse those ads along a user’s media time line. Pretty inventive way to make money isn’t it?

Since the social media platform essentially owns the paper, ink and printing press, the law permits the platform owner to decline to publish the opinions of those with whom he or she disagrees.

So, if your social media account is suspended is there nothing you can do?

Maybe not. But, since modern social media publishing piggy backs off of radio signals owned by the public couldn’t the government step in and “regulate” and set strict criteria for blocking ideas not welcomed by the owner of a media site? Sure. But would government end up further restricting free speech?

Though a well-crafted narrow statutory limitation, i.e. “media outlets may only limit speech explicitly calling for physical violence”, might be enacted to throttle social media publisher efforts to limit speech, bureaucratic “regulators” could abuse regulatory power and expand the definition of speech that could be suppressed. That is the slippery slope argument you often hear.

But, what about a law that, instead of regulating social media sites through an unwieldly government regulatory agency, simply permits a person who has their speech blacked out for an illegitimate reason to sue in court for liquidated damages? Liquidated damages are basically predetermined damages that can be obtained so as to eliminate the need to prove specific harm.

A law permitting liquidated damages might be very effective and would read something like:

“… any person who has been restricted in their freedom to post to a social media platforms which utilizes public radio frequencies for any reason other than for speech explicitly calling for physical violence, may sue for an injunction to compel the unrestricted dissemination of such speech, as well as liquidated damages of $50,000.00 per day per violation”.

Such a law would be self-enforcing. The person seeking to enforce the law would have to hire an attorney and spend money to pursue the remedy. But having to pay money to wrongly blocked users might make media sites hesitate to arbitrarily shut down a user’s speech, or shadow ban their account.

But what can people who fear being blocked legally do as a means of self-help right now? Here are some thoughts:

  1. Social media opinion-maker-stars who thrive on posting and who fear being blocked could buy their own modern-day newspaper. They could invest in their own domain name and make sure that name is widely known, and set up a website with a host that will not block them. Then if a block on a social media site occurs a platform exists for their followers to seek them out.
  2. Social media stars could be more social. Follow back all their followers and encourage all followers to follow other followers. This could make it much more difficult to isolate people who are well interconnected. Further, sharing of email addresses could make newsletter dissemination of opinions via email impossible to stop if a media platform gets frozen.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.

Feb 12 2020

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Ep 37 – Legal Options Available When You are Hit by a Train

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What are the Legal Options Available When You are Hit by a Train?

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I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today’s question comes from a listener who asked:

“My son’s SUV was hit by a train, the gates didn’t come down and there was no whistle, my granddaughter’s injury is serious, I’m trying to help them get legal advice, can they sue the train operator?”

When you hear about a car or SUV being struck by a train, you know the outcome is rarely going to be anything but tragic for the occupants of the motor vehicle struck by the train.

Yes, railroad operators can be sued. The sooner we can start investigating a case, the better things will go however.

When we investigate railroad crashes, often we find that the crash could have been prevented, either by the installation of proper safety equipment, such as gates and flashers, or through proper maintenance of existing safety equipment, which we frequently find was neglected and failed to function as intended.

Also, when we are hired for a case involving a railroad we often find that there have been other reported crashes at the same intersection, or close calls that occurred at the same intersection, or complaints that gates and flashers had not been working for a period of time at the intersection, or complaints that the train is routinely not sounding its horn when it approaches the crossing.

The way the law handles a railroad intersection is that the train has the right-of-way when it claims the right-of-way by signaling its intent to cross the intersection by the sounding of its horn or whistle, and/or by triggering crossing lights to flash and/or crossing gates to close.

Horns work well in most rural locations where there is very little traffic.

But in metropolitan areas the most effective safety mechanism is gates that come down when the train approaches the intersection, or at the very least flashers that activate when the train approaches the intersection.

The activation of gates and flashers can be very complex.

First the signaling equipment has to include sensors to reveal when a train approaches an intersection, crosses the intersection, and completes its crossing of the intersection.

All this information has to be known so that the crossing warnings activate when they are supposed to and then deactivate when the train is clear.

You do not want flashers to provide false warnings when there is no train, because then drivers using the roadway will be conditioned to simply ignore those flashers.

Important maintenance has to be routinely completed. For example, sometimes sensors that note the presence of a train will malfunction. Or, lightning may hit a steel rail and burn out a sensor.

Systems should be in place to alert the rail line headquarters of malfunctions.

It could amount to a breach of care if such a warning system is not in place to alert a maintenance crew.

It can be a breach of care if alerts of malfunctions are not promptly addressed.

Often we find that governmental studies have been performed that show that traffic has increased on a rural road (perhaps due to a new subdivision) so as to trigger regulations that require flashers, only to find out that the railroad has delayed or refused to install flashers or gates.

Of course, sometimes we find that the crew operating a train was simply negligent, or using drugs or alcohol, and that crew negligence cause the failure to sound a horn or otherwise caused the crash.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.

Feb 05 2020

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Ep 36 -Work Injuries Due to Defective Product

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“My husband was injured when a chunk of wood flew out from a machine he using, can we sue?”

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I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today’s question comes from a caller whose husband was injured when a chunk of wood flew out from a machine he was using at work and was nearly driven clear through his stomach; he luckily survived, and she wanted to know if she could sue the machine manufacturer as well as her husband’s employer.

This is a common question for us to answer. It is very important in Indiana since workers compensation benefits in Indiana are very minimal.

Workers all across the country suffer serious injuries or are killed on the job as a result of defective industrial products each year. The type of industrial products involved in worker injuries includes manufacturing equipment, farming equipment and construction equipment.

Many times, when our legal team investigates a worker’s compensation case, we discover that a defective industrial product is what lead to the on the job injury. That can be a fortunate discovery because that piece of information allows the injury claim to go beyond the typical bounds of Indiana’s worker’s compensation laws.

What type of product defects are we talking about? You name it. Machinery may lack proper safety guards, or perhaps there were no safety instructions or warnings with the product.

Sometimes we find that the fault lies with the employer for failing to instruct an employee to use the product properly. Sometimes we find that a machine was shipped with a safety guard, but the employer removed it.

Tough to hold the product maker responsible for an employer removing a guard, unless the maker didn’t post a warning instructing that safety guards are not to be removed. Or, maybe the maker could be held liable if it failed to install an interlock that would prevent the machine from starting if the safety guard was removed. This type of interlock is similar to a car not starting unless your foot is on the brake.

When a worker is seriously injured or killed on the job, it is important to look closely at the working environment. Was the machinery involved to blame? Was the worker simply not being careful? All such factors need to be looked at carefully.

The importance of examining third party claims when helping a worker pursue workers’ compensation benefits can’t be overstated. Third party claims permit the recovery of past and future pain and suffering, past and future mental anguish, and loss of income, as well as loss of future income earning capacity. Additionally, spouses of injured employees can file loss of services claims.

These types of damages are not recoverable under workers’ compensation laws, which set forth very limited benefits that an employer must legally pay as a consequence of an employee injury.

Though workers’ compensation benefits are important, and provide a way that employees can hold employers accountable for work-related injuries, lawsuits against manufacturers, distributors, suppliers, and others who make products available that are used in the workplace, are a good means of holding responsible every party that is related to an injury connected with a product.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.

Jan 29 2020

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Ep 35 – Hands Free Phones and Distracted Driving

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“Is hands free phone usage as distracting when driving as putting the phone to your ear?”

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I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today’s question comes from caller who says, “I was in a crash and the other driver seemed distracted at the time. It looked like he was talking to someone when he hit me. When I asked him, he said he was using a hands-free cellphone and that he was driving safely. How can that be if he was distracted when he hit me?”

While we all have been told that it is not safe for drivers to use a hand-held cellphone while they are behind the wheel, does that mean hands-free cellphone driving is safe? Not surprisingly, many drivers have turned to using hands-free cellphones. The companies that sell hands-free devices claim they are a safe alternative to hand-held cellphones, but is that true?

The AAA group published a study not long ago that strongly suggests that using a hands-free cellphone while driving causes a significant amount of cognitive distraction and may lead to a car accident.

During the study, researchers measured participant heart rate, eye movement, and brain activity while operating a car set up with monitoring equipment. The participants were given various tasks to complete during the study to test how their concentration was impacted while they performed the task and operated a motor vehicle.

The results showed that drivers who used a hands-free cellphone were only slightly less distracted than when they used a hand-held cellphone.

It seems that the brain cannot fully focus on two complex tasks simultaneously. The brain allocates competing attention to both tasks on an alternating basis.

In other words, for a discrete amount of time the brain focuses on driving, then for a few seconds focuses on talking and listening and formulating language responses, then switches focus back to driving. This frequent change in focus leaves cognitive gaps where drivers are not concentrating on the road. Thus, the risk of a serious accident is not greatly different between hands free and hand held calling. Both contribute to the problem of distracted driving and can result in more vehicle collisions.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.

Jan 22 2020

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Ep 34 – Can I recover compensation if I was partly at fault?

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“Can I recover compensation for an injury even if I was partly at fault?”

https://personalinjuryprimer.com/wp-content/uploads/2019/10/Podcast-034-Comparative-Fault.mp3

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today’s question comes from a caller who asks: “Can I recover compensation for an injury even if I was partly at fault for it happening?”

The answer is yes, but only as long as you are not more than 50% at fault.

Many times, a motor vehicle crash or other injury incident occurs because of a number of reasons, as opposed to a single reason. Injuries can happen due to shared fault on the part of the several parties involved in the incident, including the person who winds up injured.

If you’re concerned that you cannot be compensated for your injury because you might share some fault for the injury incident, then you need to call an attorney to discuss the matter in detail. Things may not be as cut and dry as you think. Meeting with an attorney and discussing exactly what happened may reveal that, although you may have been partly at fault for your injury occurring, your percentage of fault is not substantial to block legal avenues for compensation for your injury.

Here’s the way the law in Indiana works: if you are mostly at fault, meaning over 50% at fault, then Indiana law says you can’t receive compensation for your injury.

But, that means that you have to be proven by the other party to be mostly at fault. The other party has the burden of proving you share fault. And a lot goes into proving that. What if the other party doesn’t have evidence of your fault, or maybe they don’t even think you share fault.

You might think on the surface that it’s easy to prove who’s at fault for a crash, but a lot of times evidence cuts both ways.

If the other party is mostly at fault, but you are somewhat at fault, you can recover, but you only can recover for the percentage of fault that the other party is found to have contributed to cause the crash or other injury incident.

For example if the other party is 52% at fault, and a jury awards $100,000 in damages, you only recover $52,000.

Let’s say that two cars crash in an intersection where the traffic lights are out because of a power outage. In that situation both cars are supposed to stop and treat the intersection as a four-way stop.

But what if the evidence is that the light went out only seconds before the crash. In that situation, one side of the intersection was looking at a red light, and the other side was seeing a green or a yellow.

Suppose further that your light was green when you last looked up a split second before the crash, and that when you looked back at the road you were never even aware that the power went out before you felt the impact.

Under such a scenario, a jury might well see the other party as mostly responsible for the crash.

There are a whole lot of different scenarios that could be imagined. The bottom line is you need to have an experienced attorney help you sort things out. Until you speak with an attorney you should not assume that your situation is hopeless, even if you think you might be partly at fault.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.

Jan 15 2020

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Ep 33 – Traumatic Brain Injury Claims

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“Do I need a brain injury lawyer?”

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I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today’s question comes from a listener who states “my child suffered a brain injury in a crash, the doctor described it as mild, but the symptoms are not mild, they seem to be terrible, do I need a brain injury lawyer?”

Over the years we have counseled lots of people who have suffered what is often called a TBI or traumatic brain injury. Sometimes doctors describe an injury as a mild TBI. The term mild does not mean minor or inconsequential, but is usually meant to distinguish open head injuries, or closed head injuries with internal bleeding, sometimes called a brain bleed. We have helped people with mild TBI claims and major brain injury claims.

But the question is do I need a brain injury lawyer? While the question seems to suggest that the law is different for brain injury victims, I don’t think the caller really meant that. I think the question better put is do I need a lawyer experienced in dealing with claims involving a brain injury? To that question the answer is a definite YES.

The law for a brain injury or a head injury is the same as it is for other personal injury cases. But brain injury cases can be more costly to pursue. Often specialized expert testimony is needed.

Insurance carriers often fight brain injury cases because they hope they can convince a jury that the injury is not real, or that it is exaggerated. They typically do not want to acknowledge that the damages inflicted are quite serious and even life-changing.

Even a simple rear-end motor vehicle collision can cause a concussion that leaves devastating symptoms. Just ask Clark Elliott, Ph.D., a scientist in the field of artificial intelligence, who wrote a book about his experience living with the debilitating effects of a concussion for 8 years before he finally got help from two Chicago-area researchers-clinicians: one an optometrist using neuro-developmental techniques and the other a cognitive restructuring specialist working on brain plasticity. His book is entitled “The Ghost in My Brain: How a Concussion Stole My Life and How the New Science of Brain Plasticity Helped Me Get it Back.”

Traumatic brain injuries are the result of head trauma, broken down into open head injury (skull fracture), closed head injury (concussions, contusions, or intracranial hemorrhage), and a particular type of closed head injury common in rapid deceleration situations like vehicle crashes or sports injuries called diffuse axonal shearing.

The symptoms of a traumatic brain injury are linked to the seriousness of the injury and how much damage is suffered to brain tissue. There are three main types: mild, moderate, and severe.

A mild TBI usually results in minimal or no loss of consciousness, and the symptoms may include headaches, nausea, difficulty sleeping, dizziness, issues with balance, sensory overload, cognitive deficits (such as inability to concentrate, confusion, memory loss, difficulty with word recall, problems reading or writing), vision problems (including blurred vision, abnormal eye movements, poor eye coordination, sensitivity to light, seeing more in two dimensions rather than three, unable to judge distance very well), hearing issues (including sensitivity to sound, partial hearing loss, or ringing in the ears), changes in smell or taste (either increased or decreased sensitivities), physical changes of appetite, sleep, and hormones, and/or fatigue. Even a so-called “mild” TBI can have profound effects on all aspects of a person’s life, including basic tasks of thinking and moving around in the environment. Once a brain has been switched into a fight-or-flight state of alertness and remains there for a great amount of time, life itself becomes overwhelming—with persistent heightened sensitivities to light, sound, and movement.

In a recent issue of JAMA Psychiatry, a study showed that one in five individuals who have sustained a mild head injury will develop mental health conditions, such as depressive disorder, personality changes, and or behavioral abnormalities.

A moderate TBI has similar symptoms, but may also include a longer period of time being unconscious upon injury, seizures or convulsions, extreme headaches, and/or loss of coordination.

The worst of the symptoms are associated with a severe TBI, which often results in slurred speech, agitation, inability to awaken from sleep, weakness or numbness in extremities, or a coma.

Major brain injuries are not hard to diagnose. But, even if there is an open fracture, or clear evidence of injury, doctors need to rely on an MRI or CT scan to identify an intracranial hematoma, hemorrhage or other abnormalities. The degree of injury, however, whether mild or severe or in between, is often hard to diagnose, and doctors often rely on assessing how a patient performs at solving puzzles and other brain skills tests.

Doctors have learned to quantify symptoms and have developed something called the Glasgow Coma Scale which quantifies eye response, verbal response, and motor response on numerical scales from 1-6. Other tests are used to evaluate a patient’s awareness, cognition, behavior, and interaction with the environment.

Recovery from a brain injury is possible, though even mild traumatic brain injuries can cause permanent damage from which the affected individual never fully recovers. Sometimes the symptoms are such that the brain injury victim is disabled by the injury and qualifies for Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) benefits.

In recent years, we have put together a pamphlet for clients and their families that explain treatment options for TBIs. This is helpful for the injured person, as well as the family, and guides them to the many resources available for TBI victims. For too many years, TBI victims have been left as the walking wounded, with symptoms that are medically unverifiable and therefore untreatable. Now, with more studies and resources coming out about the new science of brain plasticity to rewire and retrain the brain, there is hope for TBI victims.

It is key to have an attorney representing you who understands the intricacies and complexities of brain injuries in order to better advocate for you and plead your case.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.

Jan 08 2020

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Ep 32 – Online Stores Try to Avoid Liability

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“Online stores try to avoid liability for unsafe products.”

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I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today we’ll look at the topic of holding online stores liable for selling products that are banned, unsafe, and/or mislabeled that cause injury or death to consumers.

Unfortunately, there is a growing number of people who are being harmed by products purchased online that are, unbeknownst to the customer, banned, unsafe, and/or mislabeled on the website.

For example, a 2019 investigation by the Wall Street Journal revealed that thousands of items for sale on Amazon.com have been declared unsafe by federal agencies, are deceptively labeled, or are banned by federal regulators to even be on the market. Many online products are listed in the product description as being DOT-compliant, FDA approved, or UL certified, when in fact, they are not. Additionally, some items such as children’s toys, were purchased online and tested for toxicity, and showed that they contained dangerously high levels of lead.

Generally, when people buy goods at a brick-and-mortar store, the law places a responsibility on the store to only sell goods that are deemed safe for consumers. Say, for example, you purchase an item at a big box store and it turns out to be defective and injure you, the law typically allows you, the injured consumer, to hold not only the manufacturer of the item responsible for your injuries, but also the seller of that item—in other words, the big box store.

But what happens in the world of online shopping? Say you purchase a small kitchen appliance online that turns out to be defective and dangerous and injures you. Can you hold the online store responsible for selling you the item the same way you can hold a brick-and-mortar store responsible for selling a defective product? Well, the answer is a bit complicated, and the law appears to be slowly changing.

For example, was the item purchased directly from an online store’s website or was it actually purchased from a third party seller that is hosted on the online store’s website? Some online stores make it clear when a person is buying from a third party seller, but other times, it is anything but clear.

Many online stores, even those that originally started out as selling directly to consumers, have evolved into something more like a flea market where a large percentage of the products for sale are actually sold through third party sellers or vendors—many of whom can be anonymous. When online stores allow third party sellers to sell products on their website, it breaks the direct supply and distribution chain that typical brick-and-mortar stores have over their products. In other words, it breaks the direct chains of supply and distribution which the law has reasoned as an important basis for holding sellers responsible for selling defective and/or dangerous products.

It is important to point out that not all online stores are equal in how they allow third party sellers access to sell through their websites or in how they police third party sellers to only sell safe and genuine products. Some websites really vet their third party sellers, while others grant immediate access.

So why does this all matter? Well, if you or a loved one is injured or even killed by a defective or dangerous product that was purchased online, this may really impact your ability to hold an online retailer or seller liable for the damages. In an effort to avoid liability, many online retailers argue that they can’t be held liable for the defective or dangerous product that harmed someone because they were not the actual seller, but rather, just an online platform hosting third party sellers. Many times, the third party sellers are individuals or small businesses that have no insurance or way to pay for causing harm to customers.

However, some courts, such as the Third Circuit U.S. Court of Appeals, are finding that online retailers may still be held liable even if a defective or dangerous product is sold by a third-party seller because the online retailer has a responsibility to vet and control the third-party sellers it allows to use its website.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.

Jan 01 2020

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Ep 31 – What is an MDL or Multi-District Litigation?

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“What is an MDL or Multi-District Litigation?”

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I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today’s question is one that we received not too long ago from a caller who asked: what is multi-district litigation?

This is an interesting question. There is an area of the law referred to as complex litigation. It is a catch-all umbrella term that encompasses class actions, and includes multi-district litigation.

Multi-district litigation, sometimes referred to by the abbreviation MDL, is a litigation management tool used by the federal courts to streamline the management of complex litigation.

When courts found that they were confronted with class actions popping up in different areas of the country, where large groups of people scattered across a large geographic area have similar claims, the courts had to come up with a way to manage all of those cases.

For example, in an earlier podcast we mentioned talcum powder related litigation which focuses on talcum powder and its link to ovarian cancer. Just imagine the confusion that would ensue if all 4500 claims of the same type could go on simultaneously in courts all across the country.

Maybe this example is a bit easier to picture: Let’s say a company sells a cleaning chemical call Spiffy-Clean. Let’s also say workers who used Spiffy-Clean start showing up to their doctors with cancer. They then get attorneys, and all of the workers who used Spiffy-Clean sue the maker of Spiffy-Clean for product liability claiming a lack of warning.

A key issue of fact in a product liability cleaning chemical case, such as the one involving the make-believe product Spiffy-Clean, will be whether the chemical manufacturer knew that the cleaning chemical product was carcinogenic.

Let’s say Plaintiffs in 150 individual lawsuits across the country wish to question under other the company’s director of research. Without an MDL court to manage everything, the director of research for the maker of Spiffy-Clean will have to be questioned under oath 150 times. Under the management of the MDL court, the director of research will be deposed once.

So how exactly does multi-district litigation work?

Typically, in an MDL the court recognizes committees of attorneys. For example, there will be a plaintiff’s attorney committee dedicated to a particular issue in the case, for example taking the deposition of the head of the Spiffy-Clean manufacturer.

In such a case, a group of plaintiff’s attorneys working together organize the work load and decide what questions to ask, and who is going to ask the questions.

A similar committee might be formed about experts on the health impact of Spiffy-Clean.

So instead of 150 battles about the same issue going on all over the country there’s only one battle, and the MDL court decides how that issue will proceed and whether the experts can testify and what they can say before a jury.

Thus, in multidistrict litigation, the multiple civil cases that share a common issue are transferred to a single district court. That court handles all discovery and pretrial proceedings. If a case does not settle during MDL, it is typically sent back to the original court for trial.

Having one court manage what goes on in multiple similar cases has worked very well in the cases in which our office has been involved.

One such case involved contaminated injections that were provided to multiple patients. The injections were contaminated with a fungus. The injections killed several people and injured many others in multiple states.

Though that particular case functioned like an MDL, it was managed by a bankruptcy judge because the manufacturer of the product filed for bankruptcy court protection as there were far more claims than available assets to pay all claims.

In short, an MDL is a way to manage multiple class actions and simplify the legal process in such cases.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.

Dec 25 2019

5mins

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Ep 30 – Talcum Powder Linked to Ovarian Cancer

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“My wife used talcum powder, and died of ovarian cancer, do I need an attorney?”

https://personalinjuryprimer.com/wp-content/uploads/2019/10/Podcast-030-Talcum-Powder-Linked-to-Ovarian-Cancer.mp3

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss topics related to personal injury law.

Today’s question comes from a caller who said that his wife, who had been a lifelong user of talcum powder, died of ovarian cancer, and he wanted to know if he could sue?

You’ve probably heard about Johnson & Johnson’s baby powder and an apparent link to ovarian cancer.

The story is that women who have routinely used talcum powder for a long time are at risk to develop terminal ovarian cancer. In one suit $417 Million in damages was awarded against Johnson & Johnson.

What is the legal issue involved in cases involving exposure to seemingly safe products, such as talcum powder?

Well, corporations, like Johnson & Johnson, have a duty to consumers to inform them about the risks associated with their products. Consumers rightly trust that a company will not market an unsafe product. But Johnson & Johnson broke this trust by allowing their talcum powder to be sold despite being aware of its dangers.

In the talcum powder trials, lawyers have cited a 1982 study that demonstrated that women who used talcum powder on their genitals had a 92% increase in their risk of ovarian cancer. Moreover, a lead researcher of this study advised Johnson & Johnson to put a warning label on its product. Significantly, internal memos from Johnson & Johnson established that the company was aware of the carcinogenic danger associated with its product. A 1990s era internal memo from a Johnson & Johnson medical consultant noted that denying the link between talcum powder and ovarian cancer is comparable to “denying the obvious in the face of all evidence to the contrary”.

Fortunately, the jury that awarded $417 million held the company liable for failing to warn about the carcinogenic effect of its product. At last count there were over 4,500 similar lawsuits pending against Johnson & Johnson. It is good to see a corporation held accountable for misleading consumers.

If you or loved one has used Johnson & Johnson baby powder and been diagnosed with ovarian cancer, you should consult an attorney about obtaining compensation for your suffering.

I hope you found this information helpful. If you have questions about your legal rights if you get hurt due to the carelessness of another person, or as a result of substandard medical care, or due to a product defect, construction injury, or any other type of personal injury, please give us a call at (219) 736-9700. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there make sure you request a copy of our book “Fighting for Truth”.

Dec 18 2019

3mins

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