Massachusetts House Approves Texting While Driving Ban

Beacon Hill.jpgWith this week’s approval of a bill in the Massachusetts House that would ban texting while driving, Massachusetts is poised to become the twenty-ninth state to impose such a ban.
Why it took Massachusetts so long to get a texting ban passed is almost beyond comprehension. The cell phone companies are not lobbying against these laws, nor are cell phone users banding together to oppose them. Practically no other safety measure out there can do so much to reduce car accidents as a texting ban. Just another example of the inertia on Beacon Hill, I guess.

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Study Shows That Massachusetts Personal Injury Plaintiffs Are Losing Vast Majority Of Trials: Is That A Problem, And What’s The Solution?

Massachusetts counties.gifMassachusetts Lawyers Weekly reports in its June 14, 2010 issue that personal injury plaintiffs lost in the vast majority of cases tried in Massachusetts courts in 2009. Under Mass Lawyers Weekly’s rather generous methodology, a “win” for a plaintiff was defined as a case in which the plaintiff received any money at all, even if it was only one dollar, and that dollar was less than what the defendants had previously offered to settle the case. Lawyers Weekly defined a “loss” as a case in which the jury awarded zilch to the plaintiff.
Using these definitions of a “win” and a “loss,” Massachusetts Lawyers Weekly broke the data down by county and found the following percentages of plaintiff’s wins in Massachusetts state courts in 2009:

  • Suffolk County (Boston, Chelsea, Revere and Winthrop) – Plaintiffs won in twenty-five percent of the trials.
  • Norfolk County – Plaintiffs won in fourteen percent of personal injury trials.
  • Middlesex County – Plaintiffs won only twenty-seven percent of personal injury trials.
  • Bristol County – Personal injury plaintiffs won only thirty-two percent of trials.
  • Essex County – Plaintiffs won thirty-six percent of jury verdicts.
  • Hampden, Berkshire, Franklin, and Hampshire counties – the percentages of jury verdicts for plaintiffs in these counties ranged from twenty-nine to thirty-three percent.

The data are even worse for Massachusetts personal injury plaintiffs if you revise the definitions of a “win” and a “loss” to fit what most lawyers mean by those terms. Superior Court Judge Brady has kept a personal log of all the negligence trials he’s presided over since being appointed to the bench in 1993. Judge Brady scores a case a “win” for the plaintiff only if the amount the jury awards the plaintiff is greater than the last settlement offer made by the defense. In the 151 negligence trials that Judge Brady has heard in his nearly twenty years on the bench, only 16 have resulted in wins for the plaintiff.
The odds of prevailing at trial may seem pretty dismal for Massachusetts personal injury plaintiffs but there are a few things that should be said about this data. First, there’s an obvious selection bias at work in this study. About ninety-eight percent of cases are resolved by either pre-trial settlement or some form of pre-trial motion to dismiss.
The game theorists tell us that the two percent of cases that make it to trial are cases where at least one party is overestimating the strength of its hand. If you assume a rational defendant in a case, once the defendant is convinced of his legal liability and the dollar value of damages that a jury would force him to pay, the defendant will settle the case, simply to avoid the time and expense he would have to pay to defend the case through trial. The cases that don’t settle tend to be troubled cases where there is vast disagreement about either the defendant’s legal liability or the amount of damages. So the vast majority of personal injury plaintiffs in Massachusetts fare better than the trial data would suggest because the trial data represent the outlier cases that make it to trial.
Nevertheless, I don’t think Massachusetts personal injury lawyers should be happy with those numbers. I think they reflect a certain level of complacency by some Massachusetts personal injury lawyers about how cases should be investigated and tried to a jury. I’ve previously blogged about how Massachusetts’ largest medical malpractice verdict of 2009 – a $15 million case – was turned down by a number of Massachusetts medical malpractice law firms before being taken by a California attorney who was much more aggressive than most Massachusetts medical malpractice attorneys in terms of the number of depositions that he took and the theories that he pursued.
I sensed a lot of defeatism in the Massachusetts Lawyers Weekly article about trying cases in certain counties, especially Norfolk County. I’ve lived the better part of my life in Norfolk County and I have no compunction about trying a case to a Norfolk County jury. You simply need to know who your jurors are and frame the issue properly for them.

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Consumer Product Safety Commission Warns Of Memorial Day Weekend Dangers To ATV Riders

ATV Accidents.jpgLast year, over Memorial Day Weekend, twenty-seven people died in All Terrain Vehicle (ATV) accidents, including two riders under the age of sixteen.
This year, the Consumer Product Safety Commission (CPSC) is issuing a warning to ATV riders to be mindful of the dangers of off-roading.
It is easy to understand why Memorial Day weekend might be especially dangerous to ATV riders. Since it’s the unofficial beginning of the summer season, you probably have a greater number of riders who have just “come of age,” and are riding an ATV for the first time. Couple that with the “rust” that more experienced drivers accumulate over the winter months when they are not riding, and throw in some alcohol, and you have a perfect storm for ATV accidents.
If you own an ATV, you should know that, in April 2009, CPSC began mandating that ATV manufacturers offer free hands-on training for ATV purchasers through dealerships. So you can go to your dealer for a free course on how to operate your ATV safely.

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Do We Tolerate Too Many Traffic Deaths?

That’s the title of an excellent online symposium running in The New York Times’ Room For Debate page.
And the answer of all the esteemed thinkers assembled by The Times is: yes, the carnage on America’s roadways – the 37,000 fatalities a year caused by car accidents – is excessive and reducible.
The different writers’ explanations for why we have so many traffic deaths are fascinating. Tom Vanderbilt, the author of “Traffic: Why We Drive The Way We Do (And What It Says About Us),” points to Canada and a 50 percent decline that it experienced in car accident fatalities between 1979 and 2004. During the same period, the number of American traffic deaths declined by a much smaller percentage. If Canada can do it, why can’t we? Vanderbilt urges us to take an epidemiological approach to car accidents. Rather than seeing them as isolated tragedies, we need to address them as a public health crisis, emphasizing the “three Es” – education, enforcement and engineering.
Adrian K. Lund, from the Insurance Institute of Highway Safety, thinks the answer lies in only one of the “Es” – enforcement. He believes the problem is speeding and we’ll have fewer car crashes only when we begin to meaningfully enforce our speeding laws.
Dan Burden, from the Walkable and Livable Communities Institute, thinks the problem is too many driver-miles. We’d have fewer car accidents, he says, if we redesigned our communities to make them more pedestrian and mass transit-friendly.
When the US leads the Western world in the number of people killed each year in car crashes, and car accidents are the leading cause of deaths for Americans aged 1-34 years old, something needs to be done. And we need to take a look at all the different tacks available to us.

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Study Says Newer Airbags May Be Inferior To Older Model

A new study by the Insurance Institute For Highway Safety, to be published this year in the peer-reviewed journal The Annals of Epidemiology, suggests that the latest model of airbags, available in some cars since 2004 and mandated since 2008, may be reducing crash survivability for belted drivers.
The researchers found that belted drivers had a twenty-one percent greater chance of dying in cars equipped with the newer airbags, compared to belted drivers in cars equipped with the older model airbag. The auto accident fatality statistics were unchanged for drivers who weren’t wearing seat belts.
The researchers did not offer a definitive explanation for their findings. Instead, they conclude that there could be a multitude of explanations for their results, including the possibility that the newer airbag systems, which take into account a number of factors before determining whether to deploy, may not be responding as anticipated in real-life car crashes.
While researchers sort out whether the new airbag design is suboptimal in terms of saving lives, drivers should continue to wear seatbelts and should not deactivate their airbags. These tentative findings suggest only that the newer airbag design may be inferior to the older one, not that drivers and passengers should go unbelted or without airbags. The perennial wisdom that airbags and seat belts save lives in accidents continues to hold true.

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Massachusetts Lags While Movement To Curb Texting While Driving Gains Steam

Today, as you probably know, was “No Phone Zone” pledge day, a day when Oprah Winfrey dedicated her show to the dangers of using a cell phone while driving and urged Americans to pledge not to use their cell phones in their cars.
The day prior to Oprah’s “No Phone Zone” day, Michigan became the twenty-fourth state to ban texting while driving.
In 2008, nearly 6,000 Americans died as a result of distracted driving and more than 500,000 were injured in accidents caused by distracted driving. Studies show that using a cell phone while driving impairs your driving as much as having a few drinks and increases your risk of causing a car accident by more than 500 percent.
Will more than half the states adopting texting bans before Massachusetts gets around to it?
For a vivid illustration of how texting while driving can cause an accident, watch this illuminating (slight profanely) video of Meredith Viera from the Today Show in a driving simulator:

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Back Surgeries Overprescribed?

For once, the tort reform blog admits that the costs of healthcare might be driven by doctors’ incentives, rather than greedy medical malpractice lawyers, but, even in this moment of rare insight, Overlawyered can’t resist a slap at the plaintiff’s bar.
In this post, Walter Olson entertains the idea that some orthopedic surgeons might recommend spinal fusion surgeries whose cost approaches $100,000 because the procedures are so lucrative. However, Olson also claims that personal injury lawyers are in collusion with this phenomenon, by referring their clients to surgery-happy doctors.
I, for one, always let the real medical professionals recommend specialists like orthopedic surgeons. And most lawyers are no different.
Scoring this one is difficult. I’d award Olson a point for taking off the ideological blinders and acknowledging, even indirectly, that doctors are not always blameless. However, I have to deduct half a point for the ending of the blog post, with Olson’s attribution of sinister motives to personal injury lawyers.
That means Olson finishes with half a point. The Manhattan Institute is coming up!
PS – Can anyone send me the Journal of the American Medical Association article that Olson references? I was unable to find it.

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On Uncontrolled Acceleration And Black Boxes

Last week, big business shill Theodore H. Frank wrote an op-ed drawing on data from a Los Angeles Times article reviewing the fifty-six fatalities attributed to sudden uncontrolled acceleration problems with Toyotas. Frank noted that, in about half of the car crashes, the driver’s age could be ascertained from the LAT‘s compilation and the ages of the drivers skewed to the elderly.
The next day, blogger Megan McArdle tracked down the ages of “all but a couple” of the drivers involved in the Toyota crashes and revealed that the “overwhelming majority” were over fifty-five years old.
A lot of people have hypothesized that the sudden uncontrolled acceleration accidents involving Toyota might be caused by a computer or electronic bug in the cars’ throttle. Since there’s no reason to believe that Toyotas with a computer bugs would discriminate against older drivers, Frank and a host of other bloggers* trumpeted the results as proof that there is no electronic problem with Toyota’s computerized engines and that, in fact, the blame lay with older drivers’ driving skills (or lack thereof). (Question(s): McArdle used a cutoff age of 55 and up. Are 55 year olds, in today’s world, frail or senescent? Most research does not show a significant decline in driving ability until a couple of decades after 55 and I know many people in their sixties who are in far better physical shape than I am. What would her findings have been if she included only drivers 70 and up?).
Ted Frank and a bunch of his colleagues from the (shallow end of the) think tank business used the findings to question the honesty of drivers who reported uncontrolled acceleration problems, likening them to frauds like “balloon boy.”
So what should we conclude? Should we conclude that the whole “Toyota panic” is merely a media-driven phenomenon about routine errors committed by all elderly drivers?
I don’t think so. As I blogged over a month ago, in 2009 forty-one percent of complaints of sudden uncontrolled acceleration involved Toyotas, while Toyota only held sixteen percent market share – a fact that was lost on a lot of people. Since the time I posted that blog, NPR’s Robert Benincasa did something that the government does not do – track reports of sudden uncontrolled acceleration by make and model – and found that, since 2002, Toyota has seen a troubling rise in complaints of sudden uncontrolled acceleration. The problem doesn’t seem to be old people and driving; the problem seems, if anything, to be old people and Toyotas specifically.
In addition, the “older driving theory” doesn’t account for the most spectacular Toyota crash of all – the (physically fit) California state trooper whose recorded conversation with a 911 operator details his efforts to get his Lexus to brake.
Ultimately, I think we – whether as consumers or jurors or simply concerned citizens – need to come to grips with the fact that there may be a problem with Toyotas that we may never directly explain. A lot of people have theorized that Toyota’s problems may lie with a computer bug inside its engines. (Competing explanations – floor mats, driver error, etc. – don’t seem to account for the disproportionate number of Toyotas involved in these crashes). If it’s the case that there’s a computer bug that plagues Toyotas, we may never find out precisely what it is and why, in some cases, it caused crashes. Toyota’s engines may forever remain to us a bit of a “black box” – a computerized system that we can’t see inside or fully understand.
People tend to assume that, if there’s a computer programming error, we can simply pore over the code and figure out if there’s an error. After all, computer programming is just logic and logic is supposed to be completely transparent. But, as science fiction writers like Isaac Asimov have shown us, you can start with a few logical principles that dictate the behavior of computers or robots and wind up with some completely unintended consequences.
We are all familiar with real life examples of this. One dramatic, and fairly recent example, was the Great Northeast Blackout of 2003 (which was caused in part by computers behaving in unexpected ways). Giant companies like Microsoft come out with products like Windows Vista that are so ridden with programming problems that they become unsalable.
Sometimes the bugs are never figured out. When a program that you’re running crashes, often the product’s designer has no reason why it crashed – that’s why, after the program returns to life, it asks you for permission to send a report to the manufacturer for analysis. My friends in computer programming tell me that, very often, software engineers are unable to untangle the reasons for these errors.
We may never get to the bottom of Toyota’s uncontrolled acceleration car crashes. But that does not mean the problem is not real. Or that Toyota should not be held accountable for its failure to investigate and address these issues.

NHTSA Investigators To Probe Massachusetts Toyota Crash

The Boston Globe reports today that experts from the National Highway Traffic Safety Administration will soon descend upon Cape Code to investigate a car accident where a Harwich woman’s 2010 RAV4 drove through the wall of a doctor’s office in Yarmouth.
The woman reported that her car accelerated after she depressed the brake. The woman said that, after driving through the wall, she looked down and her foot was on the brake.
The 2010 RAV-4 is one of the models recalled by Toyota in January.
It will be interesting to see what the NHTSA investigators determine.

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Just Be Glad You Live In Massachusetts

OK, so unless you’ve been living under a rock, you’ve heard countless stories about the massive global Toyota recall for problems with sudden uncontrolled acceleration. Millions of cars have been recalled in the US and Europe.
Now guess how many Toyota cars have been recalled in the company’s home country of Japan. Just try and guess.
If you guessed zero, it’s too bad there’s no prize for the right answer. Because you’d be spot on.
Why haven’t any Toyotas been recalled in Japan? Is it because Japanese Toyotas are somehow immune to the accelerator problems that have led to horrific car crashes elsewhere?
Nope, it’s because Japanese consumer protection and products liability laws are astoundingly weak. (The country only has one full-time auto recall investigator, who is augmented by about a dozen temp workers).
In the 1970s, Fumio Matsudo, sometimes referred to as the “Ralph Nader of Japan,” tried to blow the whistle on some unsafe Nissans. He was rewarded for his actions with his arrest and criminal blackmail charges.
Maybe the tort reform crowd from think tanks like the Manhattan Institute can move to Japan. It sounds sort of like their version of utopia. The rest of us can be glad that we live in Massachusetts, in the good old United States, where our legal system at least makes some effort to protect us from unsafe products.

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