Personal Injury

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Today’s Amtrak disaster near Olympia, WA has stunned the region along with the entire country.

Our heart goes out to these families and first responders.  The horror depicted in the picture above pales in comparison to the inside of those trains, and the path forward after an event like today’s Amtrak 501 disaster involving multiple fatalities and dozens of injuries.

News is starting to break about potential causes.  Amtrak President and Co-CEO Richard Anderson said Positive Train Control (“PTC”) was not activated on the tracks at the time of the derailment.  PTC automatically slows the train if it senses the train is going too fast or may crash.  Railroad investigator John Hiatt told CNN, “If there was no Positive Train Control in effect there, then shame on them.”

Responsibility for this tragedy is likely to be complicated.  The train that derailed this morning was owned by both Washington State and Oregon Departments of Transportation.  Amtrak is responsible for service and daily operations. The tracks are owned by Sound Transit.  Because this was the “inaugural” trip, independent engineering and transit firms are also in the mix.

Our firm represents 39 victims–a substantial majority–of the Ride the Ducks crash, believed to be the worst mass transit disaster in Seattle history.   It involves many of the same issues likely to be investigated in the Amtrak 501 disaster: product design and failure, maintenance or operator failure, and fatal public transportation flaws.  With numerous parties and distinct legal theories, this is as complex as litigation gets.  These  cases require dozens of depositions, ten or more forensic experts, lab and engineering testing on an enormous scale, and hundreds of thousands of pages in documentary evidence.

In the Amtrak 501 disaster,  the NTSB will most likely release a preliminary statement concerning potential causes in the coming days or weeks.  The full NTSB investigation can take months or years.  The NTSB will ultimately hold a hearing regarding the information gathered and its conclusions as to the causes and responsibility for the disaster.  NTSB conclusions are not directly admissible in court, however, so the victims of a mass transit disaster still must investigate on their own.

A lot can be learned through comprehensive public disclosure requests and extensive fact-finding investigations in litigation.  First responders will likely conduct a review of the crash and their response to a mass casualty incident (“MCI”).  Although there are several definitions of MCI, it typically refers to an incident where the scope of the injuries and circumstances on scene force first responders to abandon the ordinary standard of care that would apply to one-to-one (or similar ratio) medical response.  An incident will often be declared an MCI during the initial response on scene, which signals to medics and other authorities that they need to triage patients and coordinate the scene.  From that point forward, first responders employ a chain of command with assigned groups such as Rescue Group and Operations.

In an MCI, documentation and immediate identification of victims can be impossible.  We took 19 depositions of first responders in the Ride the Ducks disaster to piece together the carnage of the scene and swift MCI response by the Seattle Fire Department.  After 30 more depositions, the truth reveals itself.

That is, after all, the main goal victims have–what happened to me and my family, and why?  I hope the victims of the Amtrak 501 disaster get the answers they deserve.

NOTE: This blog post is excerpted from AndrewAckley.com

Attention Seattle Drivers: New, lower speed limits in effect!

sdot-lowers-arterial-speed-limitHopefully making the most out of the extra hour yesterday, transportation workers were busy at work around Seattle yesterday. Why? They were installing 145 signs announcing the new 25 mph arterial-speed limit. The policy behind lowering the arterial speed limit is to reduce traffic related injuries and fatalities.

So…. take note:

The residential speed limit of 25 mph falls to 20 mph throughout the city, including hundreds of unmarked roads — in many cases, too narrow for drivers to exceed 20 anyway.

• The default speed limit of 30 mph for arterials drops to 25 mph citywide,“unless otherwise posted,” according to new signs at the city entrances.

This last point may confuse drivers because some outlying streets that were historically 30 mph have sporadic signs, due to abuse and neglect. The City Council unanimously approved the changes Sept. 26 and is looking to extend the program next year.

Friends at Seattle Greenways were big proponents of this change. Kudos to Cathy Tuttle and Gordon Padelford!

Cities: Listen up! Bicycles = “ordinary travel” & you must provide safe roadways.

Last week Division II Court of Appeals ruled that cities must provide safe roadways for all traffic, including bicycles. The three-judge panel found that cycling is a mode of “ordinary travel,” not just a sport. This means, Div II says, that cities must maintain roads for safe bicycle travel. What’s the big deal about calling bicycles “ordinary travel?” A lot.

In 2012, a Seattle judge dismissed the consolidated cases for injured cyclists. who argued that the South Lake Union Trolley tracks on Westlake were unsafe for cyclists because of the trolley tracks. Their bike tires too easily got trapped in the flangeways, where the trolleys’ wheels travel. However, the court in that case did not address whether bicycling was considered “ordinary travel” for the purposes of Washington Pattern Jury Instruction (WPI) 140.01. WPI 140.01 says that a municipality “has a  duty to exercise ordinary care in the design/construction of its public roads to keep them in a reasonably safe condition for ordinary travel. The judge focused on the fact that the plaintiffs’ attorney in that case (not from our firm) has not provided any expert to testify to the standard of care. In other words, not expert argued that the City of Seattle failed to design and construct the road that was reasonably safe for ordinary travel. Thus, the City was let off the hook.

Plaintiff Pamela O’Neill was seriously injured while commuting home on her bike from work in Port Orchard. When her bike hit a patch of road  with gaps in the concrete, her body flew onto the road. O’Neill sued the city, claiming it was negligent in maintaining  the road, when it should have provided safe travel for bicycles. A Superior Court judge granted the city’s motion to dismiss the case. The appeals court overturned that dismissal and sent the case back to the lower court “for further proceedings consistent with this opinion.”

“Bicycles are an integral part of Washington’s ‘statewide multimodal transportation plan,” so cities must make roads safe for bicycles, the judges said.

O’Neill is an experienced cyclist who regularly commuted by bike to and from work and often took new routes to challenge her abilities, the court ruling said. Before July 18, 2009, she had never ridden down Sidney Avenue, the record said. As she headed down the hill, the road conditions changed from smooth to uneven. Photographs of the site of the accident showed “gaps between concrete slabs of up to 4 inches and height differentials of more than 1 inch,” the court said. At one point, Pamela’s handlebars jerked to the right, throwing her to the ground. She landed on her head and right shoulder and suffered serious injuries.

A city public works director said in his deposition that the city fixes roadways on a “complaint-based system” and the city had not received complaints about that stretch of road.

To challenge that claim, O’Neill offered testimony from an expert witness named James Couch, a U.S. Cycling Federation coach who owned a bicycle store in Tacoma. He said the breaks in the concrete slab were “enough to cause even the most skilled cyclist to lose control of their bike.”

The Superior Court found that Couch did not qualify as an expert witness and excluded his testimony, but the appeals court said Couch’s knowledge, skills and experience qualified him as an expert and the court erred by excluding his statements.

The judges also said the court erred when it said O’Neill “assumed the risk of poor roadway surface conditions” under the doctrine of implied assumption of risk.

“Falling is an inherent and necessary risk of the activity of cycling, and O’Neill assumed the general risk that she would fall off her bicycle and injure herself,” the judges wrote. “She did not, however, assume the enhanced risks associated with the City’s failure to repair an alleged defective roadway of which the City allegedly had constructive notice.”

Self-Driving Cars: Why they need to be at least 2x’s better than humans.

A Tesla-S model with self-driving mode enabled was involved in a fatal crash. Photo: Bloomberg/Jasper Juinen

A Tesla-S model with self-driving mode enabled was involved in a fatal crash. Photo: Bloomberg/Jasper Juinen

True to my technophile self, I’ve embraced all the latest advances in automobile technology. I was driving a few friends back from lunch a few days ago, and they were aghast at how I didn’t even turn my head as my car backed into a tight space. So, the news of the fatal crash involving a Tesla-S in self-driving mode (aka “Autopilot”) broke my heart. I pictured the proud Tesla owner, Joshua Brown (a tech consulting firm owner) who had grown accustomed to trusting his car to drive him in stop and go traffic. That fateful day was sunny, exceptionally bright, when a tractor-trailer turned left in front of the Tesla driver.

The Tesla news release explained:

Neither Autopilot nor the driver noticed the white side of the tractor trailer against a brightly lit sky, so the brake was not applied. The high ride height of the trailer combined with its positioning across the road and the extremely rare circumstances of the impact caused the Model S to pass under the trailer, with the bottom of the trailer impacting the windshield of the Model S. Had the Model S impacted the front or rear of the trailer, even at high speed, its advanced crash safety system would likely have prevented serious injury as it has in numerous other similar incidents.

While my enthusiasm for autonomous cars remains in high gear, this tragedy highlights the fact that the engineers need to reexamine their algorithms to uncover any other possible scenarios where sensors may not react quickly enough to keep all of the passengers safe.

Tesla states:

Autopilot is getting better all the time, but it is not perfect and still requires the driver to remain alert. Nonetheless, when used in conjunction with driver oversight, the data is unequivocal that Autopilot reduces driver workload and results in a statistically significant improvement in safety when compared to purely manual driving.

This begs the question: Why have an Autopilot function if an alert driver is constantly required to oversee the Autopilot? Human nature will result in drivers allowing themselves to get distracted, once putting their cars into self-driving mode. What’s the purpose of an autonomous car, if the human behind the steering wheel cannot let her mind wander for even a moment?

Another cyclist crash on the First Hill Streetcar tracks demands change

(Above KOMO News story aired June 20, 2016)

What does it take to make this treacherous stretch of the First Hill Streetcar tracks safer for cyclists?  A few weeks ago, we mourned the tragic death of cyclist Desiree McCloud, who crashed her bike only a few blocks away from where our client, cyclist Daniel Ahrendt, crashed his bike and survived after a Metro bus ran over him. Now, we have Jessica Hicks, who crashed on her scooter a few weeks after Denise Chew, a Tukwila nurse, crashed in the same area. To add insult to injury, Denise’s scooter was auctioned off, while she was unconscious and on a ventilator at Harborview. Really. I’m not making this up.

There are a number of ways that we can make this area safer for those riding two wheels. Bicycle advocates have frequently pointed to flange-fillers (used in a less trafficked area of the First Hill Streetcar line in the International District) or a covered-track system such as VeloStrail (currently used in Europe for curved tram tracks that intersect cyclist/pedestrian paths). As much as I would love to see solutions like those embraced, we also have a number of other less dramatic options. Let’s look at what the City has done on the Second Avenue corridor, soon after the horrific death of young attorney and friend Sher Kung.

We should look at options that keep cyclists away from the tracks with bollards, signalization, bright paint, and education–among other ways. In a future post here, I will share more insights with a transportation engineer, who is well versed in the area of cyclist safety along light rail lines.

How many cyclist deaths/injuries along First Hill Streetcar Tracks does City need to make changes?

Desiree McCloud, 27 year old, got her tire caught in the curved First Hill Street Car tracks, close to where my client Daniel Ahrendt crashed his bike and was run over by a bus.

In the far right corner of photo is where the First Hill Streetcar tracks curve into the cyclist lane. Desiree McCloud, 27 year old, got her tire caught in the curved First Hill Street Car tracks, close to where my client Daniel Ahrendt crashed his bike and was run over by a bus.

A little over a year after my client, Daniel Ahrendt, caught his tire at the intersection where First Hill Streetcar tracks curved onto the bike lane. I’m saddened, but not surprised to learn about 27 year old Desiree McCloud’s death. She too crashed along the same tracks, close to where Ahrendt was run over by a Metro bus. Witnesses apparently saw her flip over her handlebars and hit the pavement.

The South Lake Union cyclist crash cases were dismissed because the City argued that bicycles were not considered “ordinary travel” along the South Lake Union route. In fact, the City had planned to ban bicycles there.

Top red arrow shows where Desiree crashed her bike. Lower red arrow shows where Daniel crashed his bike. Notice any similarities?

Top red arrow shows where Desiree crashed her bike. Lower red arrow shows where Daniel crashed his bike. Notice any similarities?

However, in Daniel’s and Desiree McCloud’s cases, the City included bike lanes along the First Hill Streetcar line. The argument that bicycling is not considered “ordinary travel” cannot pass muster for our injured/killed cyclists who were invited to ride their bikes on this hazardous portion of the streetcar line. We must not blame cyclists, when the City developed this new streetcar line with eyes wide open regarding the extraordinary hazard that the curved tracks pose to cyclists and those on wheelchairs.

Note, there are rubber flangeway fillers along this streetcar line in the International District by 8th Avenue. Why there aren’t flangeway fillers or something else that will prevent cyclists from unintentionally falling into these curved tracks escapes me. Excuses about the cost in replacing the rubber or maintaining them is absurd. How many lives and serious injuries does the City need to see, before it does something like it did in response to the injuries and deaths from cyclist crashes on Second Avenue?

Please visit the donation page that Desiree’s family put up, which will go to cover medical costs, etc.

Johnson & Johnson: We have a problem

Countless women believe that baby powder is safe enough for babies and for them. (Photo: Silroby80 via Shutterstock)

Unaware of decades of studies linking talc powder to ovarian cancer, countless women believe that baby powder is safe enough for babies and for them. (Photo: Silroby80 via Shutterstock)

The scent of baby powder is more evocative than that of coconut, chocolate or mothballs, according to Johnson and Johnson’s findings from blind tests. The multibillion dollar behomoth has apparently kept under raps any scientific studies that connect ovarian cancer with its baby powder. Instead, it persists with its marketing of the powder, which is considered “cosmetic,” and thus escapes FDA regulatory approval:

At Johnson’s®, we love babies.  And we understand how to soothe and relieve baby soft skin.  That’s why Johnson’s baby powder is designed to gently absorb excess moisture helping skin feel comfortable.  Our incredibly soft, hypoallergenic, dermatologist and allergy-tested formula glides over skin to leave it feeling delicately soft and dry while providing soothing relief…

In the meantime, in the past several months we have seen some large verdicts against Johnson & Johnson for ovarian cancer cases. Just today, the NY Times Well blog discusses recent baby powder-ovarian cancer cases against Johnson & Johnson. Our firm is actively representing a client who has been an ovarian cancer patient for a few years, and who only realized that her decades’ long ritual of using Shower-to-Shower is linked to ovarian cancer. If you or someone you care about has ovarian cancer and has also had the routine of using talc powder, I would like to speak with you about your possible case. Email me at Catherine@Stritmatter.com or call me at 206.448.1777.

Johnson & Johnson: We have a problem. And you need to inform the public about it, rather than sweeping it under the rug.

Driverless cars have a “driver” says NHTSA

Uber's driverless cars are doing real world testing already.

Uber’s driverless cars are doing real world testing already.

In my hometown of Pittsburgh, Uber is working with my alma mater, Carnegie Mellon, to test its driverless cars. A little over a year ago, Uber’s Advanced Technologies Center opened in partnership with Carnegie Mellon University. Since then, Uber has been revving up its autonomous car testing team. Now, you can find its Self Driving Vehicle (SDV, a.k.a fully autonomous vehicles, i.e. driverless cars) out on the roads of the Steel City to test its real world capabilities.

While driverless cars seems like a solution for Uber, legal issues remain. Sure – SDVs may omit all of the driver-related legal issues that continues to haunt Uber. Bur new and not fully resolved issues emerge. For one, NHTSA has considers the “driver” of SDVs to be the system itself. Thus, in response to Google’s own inquiry (a different project than Uber’s) NHTSA indicated that for Google’s SDVs, the system is deemed the “driver”. This leads us back to the question of who or what is the driver of an SDV.

How might this get parsed for insurance coverage? Good question. The insurance industry will get back to us on that.

According to a McKinsey & Company report suggested how they might do so:

Car insurers have always provided consumer coverage in the event of accidents caused by human error. With driverless vehicles, auto insurers might shift the core of their business model, focusing mainly on insuring car manufacturers from liabilities from technical failure of their AVs, as opposed to protecting private customers from risks associated with human error in accidents. This change could transform the insurance industry from its current focus on millions of private consumers to one that involves a few OEMs [original equipment manufacturers] and infrastructure operators, similar to insurance for cruise lines and shipping companies.

In all probability, liability arising from a car crash with a driverless system will trace back to the manufacturer. This concern may discourage a lot of potential manufacturers from leading the race to develop the best autonomous systems. But, Google, Uber and GM–among other companies–are certainly investing a lot of time and money into developing SDVs.

Remember, too, that Google’s self-driving cars have already gotten into a few minor accidents. As we all know, technology is not perfect. And when technology fails, the SDV manufacturers will be the ones burdened with huge liabilities. Time for them to start getting more insurance, while perhaps not so much for individual consumers.

How do we make roads safer for cyclists & drivers?

Last week was National Protected Bike Lane week. Just a few hours south of us, in Portland, a coalition of businesses and residents conducted a one-week test that redesigned nearly a mile with marked crosswalks, a hand built floating bus stop and extra sidewalk space for cafe seating. On the block with the bus stop, the design included a parking-protected bike lane.  Protected Bike Lane Infographic (2)The interesting point is that, by slowing traffic down a bit, not only does this increase pedestrian and cyclist safety, but it also benefits the local businesses. Freeway-style roads do not encourage people to look around them.

Understanding that protected bike lanes aren’t always feasible, there are a number of other options. Take, for example, timing the traffic so that bikes and other vehicles can alternate on the same roadway. SKW client Daniel Ahrendt is a seasoned cyclist commuter. But last year in May, his bike tire hit a portion of the First Hill Streetcar tracks, causing him to fall. That morning was clear, dry and partly sunny. The issue was not slick roads/tracks, but that he had to compete with the Metro bus that was “sharing” the lane with him and other cyclists headed in the same direction. I cannot help but imagine the difference that a timed light, which would have allowed Daniel to proceed before the bus, allowing him ample time to cross the intersection and avoid the fall that resulted in nearby bus to run over him.

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