Our clients, as well as other investors, were given the false impression that the funds were a safe and stable investment. The reality is neither fund disclosed in their common prospectus that the bonds were exposed to a risk of heavy concentration in one sector. The prospectus did not disclose that the investors were exposed to an untested, thin market subject to constant instability. Further, the funds violated the investment restriction against investing more than 25% in the same industry (in this case, mortgage backed securities). As a result of such investment practices, Morgan Keegan’s select funds lost a substantial amount of their value, especially when compared to other funds in the same market. More specifically, the Select Intermediate Bond lost 47% of its value while the Select High Income Fund lost 56% of its value.

Our firm is reviewing cases concerning the Morgan Keegan funds, including the Morgan Keegan Select High Income Fund and the Morgan Keegan Select Intermediate Fund. If you have any questions concerning these funds please contact either Roman Shaul or Scarlette Tuley, who are the lawyers in our firm handling these cases. You can either send your inquires to one of the lawyers at P.O. Box 4160, Montgomery, AL 36103 or call our firm toll-free at 800-898-2034.

In March 2007, Medtronic reported two primary locations where chronic conductor fractures have occurred on Sprint Fidelis leads. Those are at: the distal portion of the lead, affecting the ring electrode and near the anchoring sleeve tie-down, affecting the helix tip electrode, and occasionally the high voltage conductor. High voltage conductor fractures could result in the ability to deliver defibrillation therapy. Anode or cathode conductor fractures may present increased impedance, oversensing, increased interval counts, multiple inappropriate shocks, and/or loss of pacing output. The potential for defibrillation lead fracture to result in or contribute to inappropriate shocks or death has been reported. As of October 4, 2007, there have been approximately 268,000 Sprint Fidelis leads implanted worldwide. Based on current information regarding the 268,000 implanted leads, Medtronic has identified five patient deaths in which a Sprint Fidelis lead fracture may have been a possible or likely contributing factor. We are currently investigating claims involving the particular recalled leads. Ted Meadows and Russ Abney are the primary lawyers handling Medtronic Heart Device Lead Wire cases for the Section.

There are five Gadolinium-based contrast agents which are FDA-approved. One is the Omniscan Contrast Dye, manufactured by GE Healthcare. It is designed for intravenous use in MRI for the brain and the spine. In a recent study, five of the nine patients diagnosed with NSF received an MRI involving Omniscan Contrast Dye. Other studies have shown similar results. The other Gadolinium-based agents include OptiMARK, Magnevist, MultiHance and Prohance. Manufacturers of these products include Bayer Schering Pharma, GE Healthcare, Tyco Healthcare and Bracco Diagnostic, Inc. We are currently evaluating these Gadolinium-based contrast agents involving patients who have developed nephrogenic systemic fibrosis or Nephrogenic Fibrosing Dermopathy. Ben Locklar and Russ Abney are the primary lawyers handling Gadolinium cases for the Section.

“While the Rhino has been a reliable and versatile vehicle, some operators have engaged in aggressive driving (such as sliding, skidding, fishtailing, or doing donuts) or made abrupt maneuvers (such as turning the steering wheel too far or too fast) that have resulted in side rollovers – even on flat, open areas. Unfortunately, some occupants have been seriously injured during such rollovers when they put their arms or legs outside the vehicle, resulting in crushing or other injuries.”

Yet, without admitting that the Rhino’s design is defective, Yamaha recently developed doors and passenger handholds for the Rhino and is offering them to owners of the 2004-2007 ATV models free of charge. The company claims that these features will help people keep their limbs inside the vehicle during a rollover. While these features may indeed offer extra protection in the case of a rollover, the rollovers should not be happening in the first place. Yamaha is making the offer of these features sound as though they are a “special offer,” rather than the installation of safety features that should have been present from the beginning. Furthermore, Yamaha should admit that the core design of the Rhino is defective. Instead, the company has dealt with the safety problems by doing things such as pasting a sticker to the dashboard of the Rhino encouraging “responsible use” of the vehicle. The sticker contains statements that admit the vehicle’s propensity to roll over, such as:

If you think or feel the Rhino may tip or roll:

Do not put your hands or feet outside of the vehicle for any reason.

These warnings put the blame for defective design of the Rhino on the driver and passenger of the vehicle and assume that the occupants have time to prepare for a rollover in advance of such an accident. A sticker cannot overcome the defective vehicle design.

Brace yourself by pressing your feet firmly on the floorboards and keep a firm grip on the steering wheel or handholds.

These warnings put the blame for defective design of the Rhino on the driver and passenger of the vehicle and assume that the occupants have time to prepare for a rollover in advance of such an accident. A sticker cannot overcome the defective vehicle design.

Last November, the government released a partial list of 54 nursing homes that ranked among the worst in their states, balking at releasing the full list of homes with the “special focus” designation. After a group of Democratic lawmakers began pushing for full disclosure, CMS agreed to publish the names. CMS will update its list of troubled nursing homes on a quarterly basis, with its next release scheduled for April.

The list shows 52 nursing homes as not showing improvement after they were cited as a higher-risk nursing home, while another 52 did show some improvement. Twenty-seven nursing homes were added to the list in the last six months. Out of the 54 nursing homes initially disclosed as poor performers last November, 21 have shown improvement, CMS said, adding that publicity about the problems might have played a factor. There are about 16,400 nursing homes nationwide, and taxpayers spend about $72.5 billion annually to subsidize nursing home care.

Most nursing homes have some deficiencies, with the average being six to seven deficiencies per survey. But, the special focus facilities typically have about twice that number, and continue to have problems over a long period of time. The states determine which nursing homes should get the designation, and inspection standards vary among the states. The offenses typically involve unnecessary use of medication for elderly residents, or inadequate safeguards to protect residents such as those with Alzheimer’s from day-to-day hazards in the nursing home. Americans should have access to as much information about a nursing home as possible, and making information like this known to the public is necessary.

Source: Associated Press

Source: Baltimore Sun

One of the most dangerous ATVs on the market is the Yamaha Rhino. Since the Yamaha Rhino All Terrain Vehicle was introduced to the market in the United States in 2003, it has caused a large number of devastating rollover accidents that left adults and a number of children seriously injured, permanently maimed and in some instances dead. With the popularity of ATVs, the number of accidents occurring has risen over the years, and in most instances these accidents are attributed to driver error and/or dangerous riding. But, in the case of the Yamaha Rhino ATV, these injuries can be directly linked to Yamaha’s defective design of this ATV. These design defects include:

• High center of gravity
• Small wheels
• Narrow wheelbase / frame

When these design defects are coupled with a powerful engine, fast acceleration ,and quick turning radius, the Rhino can become very unstable, even at slow speeds. In addition to the aforementioned design defects, the Yamaha Rhino provides inadequate protection for driver’s and passenger’s limbs in the event of an accident. The original design was manufactured without doors of any kind. The design resulted in arms, legs, and bodies being crushed when the defectively designed ATV rolled over. Consumers need to be very concerned if they have purchased a Rhino, especially if children ride in it. We are currently looking at a number of potential claims involving these ATVs.

Source: CPSC

What we discovered during our investigation of this vehicle was tragic. First, we were disappointed to learn that Ford has not conducted a rollover test on any vehicle, including the Taurus, since 1974. In contrast, companies like Volvo, Mercedes, and Saab routinely conduct rollover testing, drop testing, and even large animal impact testing in an effort to determine how the roof structures in their vehicles perform with respect to occupant injury potential.

Then, we learned that our client’s case was not unique. Ford has previously been sued because other innocent victims were seriously injured or killed when a Ford roof collapsed after striking an animal. On one occasion, an eleven-year-old girl died while traveling as a passenger in a 1992 Ford Taurus. While the child was being taken to school, her mother was unable to avoid a horse. Upon impact, Ford’s weak roof collapsed, killing the young girl.

Because Ford had not conducted one single roof crush test on the Taurus, other than slowly pressing downward on a roof with a plate in order to meet the minimum federal requirement, we authorized our roof crush expert to conduct testing. It should be noted that the minimum federal requirement does not in any way represent what occurs in real world crashes. In an effort to recreate the forces involved in our accident, our roof crush expert constructed a cow dummy weighing 1800 pounds and impacted several different Ford Taurus roofs at various speeds until the damage profile in the accident vehicle was recreated. This enabled us to determine the amount of force experienced by the accident vehicle. Our roof crush expert then took a production Taurus and internally strengthened the existing roof support structures. He then impacted the reinforced vehicle with the cow dummy at the same speed and force that caused the damage to the accident vehicle. The results of his tests were astonishing. The cow dummy literally bounced off the reinforced vehicle. The roof crush in the accident vehicle was in excess of 16 inches. The roof crush in the reinforced Taurus was approximately one inch. Our client would have walked away from the accident had he been in the Taurus with a properly designed roof.

We were able to establish that strengthening the roof would have cost Ford approximately $22 per vehicle. Our roof crush expert pointed out this was much cheaper in cost and in weight than a luxury item such as a sun roof. We learned that the Ford Taurus did not meet Ford’s internal requirements for roof strength. We discovered that after the accident vehicle was manufactured, Ford further reduced its internal roof crush requirements. This too was surprising until we discovered an internal Ford memorandum. In that memo, the Chairman of the Board and Chief Executive Officer at Ford urged Ford engineers “to reduce costs related to items designed to achieve or exceed compliance with regulatory requirements to as low a level as possible.” In essence, he was urging Ford engineers to design down to the lowest possible safety level which would still allow Ford to legally sell vehicles. This is another classic example of a company placing profits over safety. The case was settled just before jury selection for a confidential amount.Graham Esdale and Cole Portis from our firm and Robert Thompson from Tuskegee handled the case and did a very good job.

The proposal is still a static test - one based on mathematical calculations, rather than a dynamic physical test - and it still is at 2.5 times the weight of the vehicle.

The agency has played games with the regulation since the first NHTSA revision of the roof strength rule came about. Everybody knows the current rule is very weak. The existing standard mandates that just one side support at least one and a half of the weight of a vehicle weight. The initial revision of the roof strength rule from NHTSA required support of two and a half times vehicle weight but would have continued testing on one side only. NHTSA Administrator Nicole Nason now says that double-sided testing is a viable alternative approach.

Safety activists have demanded a “dynamic” rollover test, which would require rolling a moving vehicle to gather data. Automakers insist that such a test will be costly, and that accidents involving rollovers include too many variables to design a reliable test. Each year, nearly 10,000 people die in rollover crashes, but government data suggest that only a small percentage of vehicle occupants are killed by collapsing roofs. Public Citizen President Joan Claybrook had this to say about the proposed rule:

The proposal absolutely ignores ejection and containment in the vehicle during rollovers, in which 10,500 people die each year and another 17,000 are seriously injured. To justify a strong rollover protection standard, the agency should address roof crush, ejection and containment as one standard.

Congress most recently directed NHTSA to adopt a new roof standard by April 2009. NHTSA plans to issue a new rollover rule later this year. I hope the agency will put the safety and welfare of people first and foremost and get the job done.

The first study, published by the NHTSA in October 2007, studied thousands of accidents from 1997 — 2005. Twenty-four different statistical models were used to evaluate the relationship between injury severity and roof crush. The study concluded that the relationship between roof crush and injury severity remained, regardless of the statistical model used. The other study was conducted by the Insurance Institute for Highway Safety (IIHS). It was released in March 2008. This study looked at the relationship between roof strengths of eleven mid-size SUVs and the rate of fatal or incapacitating injury in single vehicle rollover crashes. This study concluded that in all cases, increased measures of roof strength resulted in significantly reduced rates of fatal or incapacitating injury. IIHS President, Adrian Lund, observed: “What we do know from this study is that strengthening a vehicle’s roof reduces injury risk and reduces it a lot.”

The IIHS estimates that people in SUVs with roofs as strong as the top-rated Nissan Xterra face up to 57% less risk of serious injury or death in a single vehicle rollover as those in the 1999-2004 Jeep Grand Cherokee or 1996-2004 Chevrolet Blazer. The 1996-2001 Ford Explorer was also among the SUVs that the IIHS said had the weakest roofs. The Alliance of Automobile Manufacturers, which represents major auto makers, calls the IIHS report “flawed.” Unfortunately, there remains no definitive answer as to what effect roof strength has on injury risk and rollover crashes.

About 35% of deaths to occupants in car crashes involve rollovers. This amounted to more than 10,500 people in 2006, federal data showed. The 212 deaths that the IIHS said could have been prevented that year with stronger roofs would have reduced fatalities in those 11 SUV models that year by about one-third. Few issues are more contentious in auto safety than what is known as “roof crush.” The problem first gained attention in the early 1980s after the Ford Pinto in which 20-year old Kelly Sue Green was riding hit a horse near Portland, Oregon. The animal was thrown onto the roof of the damaged car. The roof then collapsed onto Green’s head and she was killed. A jury ordered Ford Motor Company to pay Mrs. Green’s husband $1.475 million. Since then, automakers and consumer advocates have debated the likely role that auto roofs play in deaths and injuries in rollovers. The acrimony has risen along with the popularity of SUVs. The advocacy group Public Citizen has led the attacks on automakers about the issue and has long urged NHTSA to upgrade its 37-year-old standard.

NHTSA first proposed upgrading its roof strength rule in 2005. After pressure from safety advocates and victims’ families, NHTSA requested comments on a tougher plan. It would involve testing both sides of a vehicle’s roof. The government has required since 1971 that roofs on cars be able to hold more than 1.5 times the vehicle’s weight. The standard was extended to cover SUVs and pickups in 1991. In 2005, NHTSA proposed raising that figure to two times the car’s weight. Now, it is considering up to three times the car’s weight, something safety advocates have urged.

Robert Shull, deputy director for auto safety at Public Citizen, says NHTSA under-estimates the effects stronger roofs would have. For example, he notes, the agency doesn’t attribute fatalities to roof crush if the deaths occur after a door opens or a window smashes during a rollover and the passenger is totally or partially ejected. Shull argues, though, that a weak roof can also lead indirectly to rollover deaths and injuries. When a vehicle rolls, it causes the whole system to be compromised, Shull says. When a roof can’t handle the weight of a car, he notes, the side pillars alongside the windshields and between the doors must bear the car’s weight and can begin to crumble. Lund, of the IIHS, agrees and says: “Stronger roofs keep doors and windows from opening.” As a result, he disputes the NHTSA’s suggestion that people not using seatbelts are not likely to be helped much by stronger roofs.

Still unclear is the role of seatbelt use in rollover accidents. Two-thirds of those killed in rollover crashes aren’t belted. Automakers contend that crushing roofs aren’t the cause of injuries to unbelted occupants. Victims and advocates reject that assertion. They argue that the issue is simple: No matter how a motorist comes into contact with a car roof, everyone would be safer if the roofs were less likely to crush. Paula Lawlor, a roof crush consultant who works with plaintiffs, says stronger roofs would aid both belted and unbelted motorists. “You could save thousands of lives a year,” says Lawlor, who founded the advocacy group People Safe in Rollovers. “People are dying totally unnecessarily.”

Source: USA Today

Medtronic Sofamor is a subsidiary of Minneapolis-based implantable biomedical device manufacturer Medtronic Inc. Massachusetts-based DePuy makes spinal surgery devices and equipment. DePuy alleged that several Medtronic Sofamor products used during spinal surgery infringed on a patent DePuy licensed from another party. In his February order, Judge Harrington wrote that the defendants “demonstrated a failure to accept the claim construction governing this case” throughout the trial. He also said medtronic Sofamor’s infringement defense was apparently based “on an attempt to obscure, evade, or minimize” the Federal Circuit’s construction of the patent in question. Judge Harrington also wrote that the defendants “sought to take advantage of the technical and legal complexities inherent in this case,” and that the defendants “prolonged the proceedings unnecessarily (thus unduly imposing upon the jury’s time),” “sought to mislead both the jury and the Court,” and “flouted the governing claim construction as set forth by the Federal Circuit.” That is some pretty strong language from a judge, and one would have to believe it was justified.

Judge Harrington denied the plaintiffs’ requests for enhanced damages because of insufficient evidence of willfulness. Following the verdict, the Judge issued a permanent injunction order barring Medtronic Sofamor from making, using or selling the infringing devices. The court’s unwillingness to allow a party to openly flout the law and rules of evidence and conduct is quite refreshing. it will be interesting to see how all of this plays out given that this case will likely go up on appeal.

Source: National Law Journal

This recall includes all feeding seats except those with an “R” stamped inside a raised circle located on the far left and right of the back of the seatback or those with waist strap slots that are nine inches apart. Various retailers nationwide from November 2006 through October 2007 for about $30. Consumers should stop using the feeding seat immediately and contact RC2 to obtain free replacement straps. For additional information, contact RC2 toll-free at (866) 725-4407 or visit the firm’s Web site at www.recalls.rc2.com.

The results indicate that the crash tests held by NHTSA and the IIHS are successful in predicting real-world crash outcomes for passenger cars — the ratings NHTSA and IIHS bestowed on passenger cars generally matched the cars’ safety record on the road. But, the ratings for trucks did not match real-world outcomes. For example, in the case of both NHTSA and IIHS, trucks that received the worst possible crash-test rating had on average lower driver fatality rates than trucks that received the best possible crash-test rating. Study co-author David Harless, professor of economics in the VCU School of Business, observed:

If you’re thinking about buying a passenger car, then the crash test scores can be useful to you. But if you are thinking of buying a truck, we have no evidence that the tests are meaningful in terms of real-world performance in serious crashes.

The study was published in the September issue of Accident Analysis & Prevention. The research was limited to instances of multiple crash tests in a given vehicle line, controlling for the differences in driver behavior in different lines of vehicles. The study examined the testing of vehicles in the 1987-2001 model years. It was pointed out that IIHS had fewer vehicle lines to review, because it did not begin its testing program until 1995. The study authors urged caution concerning their findings regarding the IIHS tests, particularly for trucks, because of the small sample of vehicle lines they were able to include in their research.

Questions have persisted over the years about the value of NHTSA’s frontal crash test ratings because of the difficulty of simulating a real-world crash in a laboratory setting. A very small percentage of automobile accidents mirror the circumstances of a direct head-to-head collision between vehicles of similar size – the scenario NHTSA creates in its lab tests. It’s said by most safety experts, however, that the government does as good a job as the private sector does at predicting the relative death rate for passenger cars.

An example of how these myths orginate is this year’s runaway First Place Stella Award winner. Mrs. Merv Grazinski, of Oklahoma City, Oklahoma, who supposedly purchased a new 32-foot Winnebago motor home, was the winner. On her first trip home, from a football game, having driven on to the freeway, she set the cruise control at 70 mph and calmly left the driver’s seat to go to the back of the Winnebago to make herself a sandwich. Not surprisingly, the motor home left the freeway, crashed and overturned. Also not surprisingly, Mrs. Grazinski was supposed to have sued Winnebago for not putting in the owner’s manual that she couldn’t actually leave the driver’s seat while the cruise control was set. It was reported that an Oklahoma jury had awarded the woman $1,750,000 plus a new motor home. It was also said that Winnebago actually changed their manuals as a result of this suit, just in case Mrs. Grazinski has any relatives who might also buy a motor home. The e-mail that announced the award concludes: “Are we, as a society, getting more stupid?”

The truth is that this sort of nonsense relating to a Winnebago lawsuit never even happened. But, the media bought the story hook, line, and sinker, and never even bothered to check it out. Scores of articles – the vast majority buying the Winnebago story as gospel truth – resulted across the country. Apparently, few journalists bothered to do any research to determine whether they were true. Among outlets falling for the hoax were the New York Daily News, CNN and U.S. News & World Report. In fact, the story actually spread around the world. Readers in Canada, England, Australia, Ireland, New Zealand and even Vietnam heard about this fictitious lawsuit that never happened. To his credit, Los Angeles Times reporter Myron Levin, who wanted to learn more about the lawsuit, called Winnebago and found out there was no Grazinski lawsuit. He also learned that the company had not changed the owner’s manual to avoid a swarm of copycat claims as claimed by the Stella awards.

The next time an “Internet tale” makes you believe things are even worse than you thought, check it out. Especially when the story suggests that the American court system is stacked against wealthy Corporate America. If you want to check out the “Stella Awards” and decide for yourself whether they are on the level, a good place to go is www.snopes.com, an excellent site that investigates urban myths. Simply search for “Stella Awards” and find out if the lawsuit stories are true or false.

Source: Associated Press

The judging consisted of various criteria, including design, usability, innovative technical features, standards compliance and content. In order to win this award, the site had to meet strict guidelines in each of these areas — an achievement only a fraction of sites in the IMA competition earn each quarter. Scott Thomas, Director of Internet Services at the firm correctly says that, “It’s an honor to have our work recognized by the Interactive Media Awards. We feel strongly that our websites are world-class examples of how the Internet can be used to enhance a company’s message. This accolade is further proof of this fact.”

The firm’s first website was registered in April 2001 and launched shortly after as a 20 page online business card. Today, our folks manage 13 websites comprising over 15,000 pages of legal information on a broad range of topics ranging from auto accidents to consumer fraud to pharmaceutical litigation. During an average week, our websites receive 150,000 combined hits and are viewed by over 18,000 visitors.

Several years ago, Tom Methvin, who is the managing shareholder at the firm, realized the potential of the Internet. His foresight has allowed us to position ourselves at an early date as a leader in the Internet legal space. With the continual support of the lawyers and dedicated staff who work so hard on the websites, we will continue remain at the forefront of legal technology.

For the most part, accident reconstruction requires the retention of an expert. But, there are some basic steps anyone can take in looking at an accident that will give an individual a general idea about how the accident happened. First and foremost is to get a copy of the accident report as soon as possible. The accident report contains vital information that can lay the foundation for a determination as to whether a case exists. Although all accident reports differ in each state (some states’ reports are more thorough than others), most reports will contain speed estimates, information about the occupants’ seatbelt usage, a narrative from the investigating police officer as to how he believes the accident happened, and a conclusion regarding who was at fault. The report will also contain eyewitness information and whether any accident scene photographs were taken. The accident report is the engine that drives the initial investigation into a case.

The next step to take is to secure the vehicle involved in the accident. The vehicle is the most critical piece of evidence in reconstructing an accident. By inspecting the vehicle, you can get an idea of the angle of impact, an estimate of the speeds involved, and determine if there is any evidence on the seatbelt to suggest the occupant was using it at the time of the accident. These are just a few of the many pieces of evidence the vehicle holds. Thus, it is vitally important to secure the vehicle. Typically, the accident report has information on where the vehicle is being stored and the insurance company involved. I suggest sending a preservation letter to both the storage location and the insurance company. The preservation letter should explain that you are investigating the accident and that the vehicle is a key piece of evidence that should not be altered, amended, or destroyed in any way. It should also contain instructions for them to call upon receipt of your letter.

Another reason to preserve the vehicle as quickly as possible is that the vehicle probably contains an event data recorder, more commonly referred to as the black box. These black boxes were introduced in automobiles as a by-product of airbags. A variety of sensors collect information that is processed by the black box. The box ultimately decides whether to deploy the airbag in an accident. The black box is designed to retain portions of the data from the accident. Afterwards, the data can be downloaded. The type of information stored by these black boxes depends upon the vehicle module and the nature of the accident. Certain boxes store information on engine speed, vehicle speed, brake status, throttle position, and seatbelt usage. The equipment to download the data from the black box is commercially available for certain model vehicles, including some General Motors and Ford vehicles. The black box data contain valuable information that can be useful to the reconstruction of the accident.

The next step is get to the accident scene as soon as possible and photograph it. The accident scene may contain skid marks, yaw marks, gouges, divots, vehicle tracks, and the like, which are vital tools necessary for any reconstruction. Unfortunately, a lot of these pieces of evidence are lost over time. If the police did not take scene photographs, it is especially critical to document the accident scene as soon as possible after the accident, before vital physical evidence is lost. Of course, if the police did take photographs at the scene, it may not be as important to document the scene yourself. The great thing about the police photos is that the vehicles are typically shown in their final resting position and, for the most part, the photos attempt to document the path of travel of the vehicle. Experts really like police photographs. It is amazing the technology that is available to experts. For example, using technology known as photogrammetry, the experts can measure objects from photographs. It’s most important feature is the fact that objects can be measured without being touched. The technique is extremely useful to experts in situations where all the physical marks on the roadway are gone. The police photographs can be used, along with photogrammetry, to reconstruct the accident.

Finally, it is crucial to talk with the investigating police officer, as well as any eyewitnesses to the accident. The problem with eyewitness testimony is its reliability. There have been times when three witnesses will give three different versions of how a single accident occurred. Some witnesses try to be too helpful. They will tell you what they think they saw, not what actually happened. Or, they will hear a noise, look up, and see cars spinning around, then quickly theorize what must have happened. Then there is that time-lapse memory thing when, two years after the accident, they simply have forgotten the details of the accident. Yet, you cannot overlook the importance of getting either recorded or written statements from eyewitnesses as soon as possible after the accident. Although you do not want to completely rely upon the eyewitnesses, it certainly helps a case when, as you are putting the pieces back together, some of the things the witnesses told you now make sense in the context of the accident reconstruction.

In conclusion, the above pieces of evidence form the foundation of any accident reconstruction. The information should be gathered as soon as possible after an accident occurs. Information is much more reliable the closer in time to the accident. These items are the nuts and bolts of the field of accident reconstruction. I appreciate very much Dana Taunton, who is in our Personal Injury Section, providing this information for our readers. Hopefully, it will prove to be both educational and helpful.

To compile what they refer to as “The Top 100 Corporate Criminals of the 1990s,” the report used the most narrow and conservative of definitions – corporations that have pled guilty or no contest to crimes and have been criminally fined. The activities of the 100 corporations that apparently label them as “corporate criminals” fell into 14 categories: Environmental, antitrust, fraud, campaign finance, food and drug, financial crimes, false statements, illegal exports, illegal boycott, worker death, bribery, obstruction of justice, public corruption, and tax evasion. It was said that there was no attempt to assess and compare the damage committed by these corporations or by other corporate wrongdoers. Although there are millions of Americans who care about morality in the marketplace, few Americans realize how many large corporations have actually violated criminal or quasi-criminal laws in the past. Many of the violations involved governmental contracts.

Six corporations that made the list of the Top 100 Corporate Criminals were criminal recidivist companies during the 1990s. In addition to Exxon and Royal Caribbean, Rockwell International, Warner-Lambert, Teledyne, and United Technologies each pled guilty to more than one crime during the 1990s. A few caveats were set out by Corporate Crime Reporter relating to the report and those are set out below:

• Caveat one: Big companies that are criminally prosecuted represent only the tip of a very large iceberg of corporate wrongdoing.

• Caveat two: Corporations define the laws under which they live.

• Caveat three: Because of their immense political power, big corporations have the resources to defend themselves in courts of law and in the court of public opinion.

It was the opinion of the authors of the report that “corporate crime and violence inflicts far more damage on society than all street crime combined.” According to the authors of the report, the FBI estimates that burglary and robbery – street crimes – costs the nation $3.8 billion a year. The report compares this to the hundreds of billions of dollars, that resulted from corporate and white-collar fraud, and that tells the story. For example, health care fraud alone costs Americans between $100 billion to $400 billion a year. The savings and loan fraud — which former Attorney General Dick Thornburgh called “the biggest white collar swindle in history” – cost American citizens between $300 billion to $500 billion.

The following are the first 10 of “The Top 100 Corporate Criminals of the 1990s,” as reported by Corporate Crime Reporter:

1. F. Hoffmann-La Roche Ltd.: after pleading guilty, paid a $500 million fine in an antitrust case.

2. Daiwa Bank Ltd.: paid a criminal fine of $340 million in a fraud case.

3. BASF Aktiengesellschaft: paid a criminal fine in an antitrust case.

4. SGL Carbon Aktiengesellschaft (SGL AG): paid a criminal fine in an antitrust case.

5. Exxon Corporation and Exxon Shipping: paid a $125 million criminal fine in the Valdez case. Attorney General Dick Thornburgh called the fine “the largest single environmental criminal recovery ever enacted.” The companies pled guilty to misdemeanor violations of federal environmental laws.

6. UCAR International, Inc.: paid a criminal fine in an antitrust case.

7. Archer Daniels Midland: paid a criminal fine in an antitrust case.

8. Banker’s Trust: paid a criminal fine of $60 million in a financial fraud case.

9. Sears Bankruptcy Recovery Management Services: paid a criminal fine of $60 million in a fraud case.

10. Haarman & Reimer Corp.: paid a criminal fine of $50 million in an antitrust case.

We are simply reporting in this issue the results of the survey performed by the Corporate Crime Reporter. Even though guilty pleas entered by the 100 corporations are a matter of record, we are not taking any position on guilt or innocence of those corporations. Although the amounts of the fines might seem to be large, in reality the corporations’ profits and benefits were much larger in each case, according to reports. While I wouldn’t go so far as to label all of these corporations as “criminals,” the documentation set out by the Corporate Crime Reporter in its report is pretty compelling. You can draw your own conclusions.

Source: Corporate Crime Reporter

The Committee wants to know whether anyone pressured McNulty or his successor, Chuck Rosenberg, the current U.S. Attorney, to close down the investigation. The letter asked McNulty a direct question and one that deserves an answer:

Did you, or to your knowledge, did any other Department of Justice employee, discuss these cases with any individuals associated with or speaking for General Reinsurance, Berkshire Hathaway, or (Berkshire CEO) Mr. Warren Buffett?

The case was also looked at by the Justice Department’s Inspector General, Glenn Fine. It has been reported that evidence was presented the Inspector General’s office indicating that federal officials may have destroyed more than 100 boxes of grand jury information in April 2007. That was just days after the Virginia Lawyer’s Weekly published an article titled “Further Federal Indictments In Reciprocal Case Unlikely.”

It appears that the driving force behind the criminal investigation of Gen Re was David Maguire, the Assistant U.S. Attorney in Alexandria who was charged by McNulty with handling the case. Maguire had worked on the criminal prosecution of the top executives at Reciprocal of America (ROA), a major Virginia insurance company that was declared insolvent in January 2003. As we have written about in previous issues, the collapse of ROA resulted in unpaid liabilities totaling more than $500 million. It was reported that the work of Maguire, his experts, and a handful of FBI agents led to the February 2003 guilty pleas of former ROA President Kenneth Patterson and former ROA CFO Carolyn Hudgins. Patterson was sentenced by a federal judge to 12 years in prison and Hudgins to 5 years in prison. They are both currently serving their sentences in federal prisons in Texas.

Gen Re company – a unit of the Omaha, Nebraska-based Berkshire Hathaway – was also involved in the ROA case. While a case was being built against Gen Re, it seems there were powerful folks working against this effort. It was reported that lawyers for the giant reinsurer were pressuring the government to drop the case or settle it as part of an overall global settlement with other matters the government was looking at involving Gen Re. The investigation was derailed shortly after McNulty left in March 2006 to become the Deputy Attorney General at the Justice Department.

Our firm has been involved in some massive and extremely significant civil litigation that involved Gen Re and the ROA matter. This case is still pending in a Tennessee court. We know a fraudulent scheme that included, but was not limited to, the execution of “side letter agreements” between the reinsurer and ROA, resulted in a misleading balance sheet impression for the insurance regulators. Gen Re was permitting the insurer to literally “‘rent” reinsurance certification, but there was no true shifting back of risk. The case involves the largest single insurance collapse in the history of Virginia. That collapse cost more than $500 million and has left more than 80,000 policyholders with an insolvent and liquidated insurer. The case exposed a serious problem existing in the reinsurance industry.

From the mid 1980s until approximately 2001, ROA grew from a small marginally capitalized Virginia reciprocal insurer of approximately 100 hospitals and a few hundred doctors and lawyers into four commonly managed reciprocal insurers of more than 80,000 insureds in many different states across the country. This phenomenal growth would never have happened without everybody involved believing that ROA was fully reinsured by Gen Re and without ROA receiving consistently high ratings from A.M. Best, a national respected ratings service of insurance companies, which also believed ROA was truly backed by Gen Re.

Unfortunately, for more than eighteen years, material facts about the true nature of ROA’s reinsurance relationship with Gen Re were falsely represented and concealed from Best, the insurance commissioners, state legal and medical societies and hospital associations that endorsed ROA to its members, and the insureds themselves. The losses that drove ROA into insolvency were the very losses that were supposedly covered by reinsurance contracts with Gen Re. I hope that the House Committee gets some real answers. In the meanwhile, we are continuing our efforts in the civil case on behalf of the State of Tennessee. Because we are involved in this most important civil case, we are staying out of the congressional inquiry. Our goal is to get a good result for our client in the civil litigation. The criminal aspects should be handled by the appropriate prosecutors and we are not involved in that effort.

Source: Corporate Crime Reporter

After more than five years of litigation, Merck has agreed to settle some 27,000 Vioxx lawsuits for a record $4.85 billion.

The litigation involving thousands of Vioxx lawsuits consolidated in U.S. District Court, under Judge Fallon related to the pain reliever, Vioxx, is going to be announced by Merck shortly, at a formal status conference.

The Vioxx settlement is larger than the $3.75 billion Fen-Phen settlement.

An official Vioxx Settlement Calculator has been developed to help individuals understand the complicated settlement criteria.

For more information on the landmark vioxx settlement, visit www.beasleyallen.com.

A 16-year-old lifeguard, who had been on the job for three weeks, was on duty when the child was found floating in the country club’s outdoor pool about 4:30 p.m. June 22, 2006. He had been swimming at the pool with an adult family friend and two other children. It’s significant that the parents have set up a foundation to honor their son. They are also working with lawmakers to create uniformity in safety requirements at public pools. They would also like to see more stringent rules because, for example, in Anne Arundel County, where the club was located, only one lifeguard is required for every 50 swimmers. They are calling for legislation that would decrease that ratio to one lifeguard per 25 swimmers.

Source: Baltimore Sun Reporter

Recently, Cole Portis of our firm, along with attorney Michael Slocumb of Opelika, resolved a case on behalf of a mother who lost her son after he died from drowning in an apartment pool located in Phenix City, Alabama. The pool was not equipped with a lock on the entry gate, a personal floatation device (life preserver), or a rope that divided the shallow end from the deep end. The pool was not marked to note the various depths of the pool, was not properly lighted and was not properly maintained, which resulted in cloudy water that hindered the ability to locate and rescue the swimmer.

Safety violations by this apartment complex are troubling. Sadly, such violations are occurring every day in public pools across our state. In spite of the numerous drownings occurring in our state, there is not a comprehensive state statute that outlines the responsibilities of an apartment or hotel owner that provides a pool as an amenity for its guests and visitors.

In spite of the lack of a comprehensive state law, there are established safety principles and guidelines for pools. One of these guidelines is that non-residential pools should always provide lifeguards. A lifeguard’s primary function is to prevent accidents. They do this by enforcing the pool rules, supervising those who are using the pool, and ensuring the pool is safe for swimming. However, instead of spending the nominal amount of money needed to employ lifeguards, management will post a sign which says:

• NO LIFEGUARD ON DUTY
• SWIM AT YOUR OWN RICK

It should be noted that putting up such a sign does not relieve the owner of the pool of any responsibility. I am convinced that no apartment, condominium or hotel pool should be operated without a lifeguard. That is what should be required to assure that pools are safe for swimmers and especially for children.

Additionally, tenants, renters and owners must be fully informed about the proper use of the pool. Comprehensive rules should be provided when one initially rents an apartment and at the beginning of the pool season. One of the specific rules that is rarely enforced are the pool’s operating hours. Apartments, condominiums and hotels must ensure that everyone is out of the pool area when it is time for the pool to close. While the pool is closed, there should be a means of providing surveillance of the pool. Either a television monitor or a security guard will help keep people out of the pool area when it is closed.

I hope and pray that the number of swimming pool cases that our firm handles will decrease. That will depend on whether swimming pool safety is given a higher priority. Unfortunately, pool owners continue to fail to protect the health and safety of the people who use their pools. Sadly, the trend we are seeing is a laissez faire attitude toward pool safety. In fact, since we resolved the case in Phenix City, two other drowning incidents have been investigated and lawsuits filed by our firm. We will continue to fight for safer pools by educating the public and by litigating against those entities that choose to have an unsafe pool that causes someone’s death or brain injury.

In 2005, the Graves Amendment was hidden in a 900-page transportation appropriations bill without any review from relevant congressional committees. The amendment intentionally pre-empted state laws that imposed vicarious liability on rental car companies. It was the prized lobbying success of the politically active rental car industry, which invested a substantial sum in campaign contributions in the effort, and then called in their chips.

The Florida ruling holding the Graves Amendment unconstitutional came in a declaratory judgment action brought by a group of rental car companies against a person who had been injured in a collision with a rental car. Interestingly, the United States government intervened to defend the statute’s constitutionality. But, U.S. District Judge K. Michael Moore found the amendment to be “an unconstitutional overreaching of Congress’ power under the Commerce Clause.” In the ruling it was stated: “Under the rationale set forth (by the rental car companies and the United States) this Court is hard pressed to think of any type of state legislation which could not be pre-empted by Congress, including state taxes.”

Simply put, the court’s ruling gives rental car companies a powerful incentive to assure that their customers are adequately insured. Striking down the Graves Amendment also helps ensure that victims of car accidents with rented or leased vehicles will be adequately compensated for their injuries. However, the ruling could ultimately have wide repercussions regarding the federal government’s preemption powers. In recent years, Congress has shown little reluctance to legislate in areas of traditional state concern. Courts, led by the U.S. Supreme Court, have found such overreaching legislation to violate the Constitution. The CCL entered the case at the request of the lawyers for the victims, Patricia M. Kennedy and Thomas Scolaro of Leesfield Leighton and Partners in Miami, Florida, to address the constitutional issues and they were successful. John Vail, CCL Vice-President and Senior Litigation Counsel, and Andre Mura, CCL Litigation Counsel, handled the briefing on the constitutional issues, with Mura arguing the case.

Currently, the Bush Administration is conducting an unprecedented campaign to usurp state authority, weaken regulatory scrutiny and protect corporate wrongdoing through a coordinated strategy of what is referred to as “preemption.” For the uninformed among us, which includes most lawyers, preemption means that Americans are denied the right to hold companies accountable under the laws of their own states for the harm those corporations cause. This harm to citizens in the states comes about because of the providing of dangerous drugs, cars, toys, and food by corporations both domestic and foreign.

Preemption is being pushed on people as a result of federal regulation and standards promulgated by federal regulatory agencies. Over the years, GOP office holders were generally advocates of states rights and local control, and that applied to our system of courts. Now we see a complete turnabout by the Bush Administration, and the Administration’s goal is clearly not to protect people. Instead it is to pay back campaign debts to powerful interests by giving them a shield from liability in state lawsuits.

The Bush Administration’s campaign to advance corporate irresponsibility threatens the health and safety of American citizens. Preemption must be stopped because it affects millions of Americans. A recent report by the Center for Progressive Reform exposes the campaign by powerful corporate interests, aided and abetted by the President’s advisors, which if successful will bar states from enforcing laws that punish corporate abuse and wrongdoing. It’s actually a stealth plan utilizing federal regulatory agencies that should be protecting consumers and not hurting them. But, it doesn’t come as a surprise because it’s typical of the Bush Administration, and that’s most unfortunate. Preempting state laws through the regulatory rule making process is wrong and can’t be justified. It must be stopped in its tracks without delay. The report referred to above reveals some significant happenings:

• The Food and Drug Administration declared that a rule regarding drug labeling preempted state tort laws even though the agency had long held to the contrary – a drastic change in policy undertaken without benefit of public comment.

• The National Highway and Traffic Safety Administration adopted a rule on roof-crush resistance with similar language seeking to preempt state common law despite earlier determinations that adopted a diametrically opposed view.

• The Department of Homeland Security adopted preemption provisions even though the Senate Homeland Security and Governmental Affairs Committee had specifically rejected the approach. The DHS language places states that want to take more stringent actions regarding homeland security in a straight-jacket and that’s wrong.

The issue of preemption will be decided in the courts and if established legal principles are followed, the American people will be the winners. However, Congress should step in and let the Bush Administration know that the federal regulatory agencies must follow the law. I don’t believe the powerful interests will be successful because the American people – once they realize how badly preemption hurts them – will demand that the state courts are protected and their rights preserved. That’s why its important for folks to contact their elected representatives and let them know that preemption is wrong and won’t be tolerated.