Columbus, Ohio Attorney Blog - Robert W. Kerpsack Co., L.P.A.

Toyota and its critics are deeply divided over the root cause of unintended acceleration problems. Toyota claims that the problems are mechanical, and has issued numerous recalls on the basis of mechanical problems, like the most recent recall of 2.3 million Toyotas for sticking gas pedals. Critics, however, cite problems with the electronics and claim that Toyota is concealing these problems. For its part, the National Highway Traffic Safety Administration (NHTSA) has largely supported Toyota's claims, but some have charged that the agency lacks adequate technical knowledge to investigate the potential for defects in Toyota's sophisticated electronics. In response, Transportation Secretary Ray LaHood has recruited electronics experts from National Aeronautics and Space Administration (NASA) to help track down the problem. The NASA scientists will use their experience designing and troubleshooting electronics subjected to a variety of electromagnetic conditions to help the NHTSA study the potential link between defective electronics and the cars' sudden acceleration problems.

In addition, LaHood as enlisted the National Academy of Sciences (NAS) to conduct a detailed review of electronic vehicle controls in all cars to determine if a systematic or widespread problem exists. The NAS review is intended to provide an in-depth analysis of the possibility for widespread problems in the use of electronic throttle controls in cars.

The claim that the electronic throttle control is to blame in unexplained acceleration events has been forwarded primarily by product liability lawyers representing people injured in car accidents caused by defective vehicles. They have enlisted experts who claim to have overridden the Toyota's safety systems, which, they say, are less strict than those used on other cars. The claim is that once the safety systems have failed there is a possibility that any external stimulus, like a transient magnetic field from the radio or other nearby electronic components, could cause a spontaneous acceleration event. Currently, neither the NHTSA nor Toyota has been able to reproduce spontaneous acceleration using electromagnetic fields.

Hopefully, the addition of outside experts can clear up this ongoing controversy and either confirm Toyota's claims or identify the true source of problems so that we can all feel safer on the road.

If you have been hurt by a car accident due to a defective vehicle, please call or email Robert W. Kerpsack, CO, LPA today for a free case evaluation.

On Tuesday, I talked about how noneconomic damage caps deny us our constitutional right as members of juries to make socially-contexted judgments about the price of the priceless. However, the other side of the question is: does tort reform work to control costs? If it does, then it may be one of the many circumstances in which we are asked to sacrifice some rights in order to get a social benefit. Namely, we forego the right of a jury trial in order to make health care more affordable for more people.

The argument is that by limiting payouts in medical malpractice lawsuits, doctors will see a reduction in medical malpractice liability costs and therefore more doctors will be able to charge less for their services, reducing the cost of healthcare.

However, this has not proven to be the case. In a survey of national healthcare costs, the Kaiser Family Foundation found that the average cost of an employer-based family health plan had increased by 19 percent in Ohio since the medical malpractice damage caps were put in place, less than the nationwide average of 22 percent. But in contrast, nearby Kentucky, which has enacted no tort reforms, saw an even slower growth in premiums. And, actually, this is a turnaround from the period before Ohio enacted tort reforms, when Kentucky's insurance costs rose faster than those in Ohio. That's right, although tort reform, including the cap on noneconomic damages, was supposed to control costs, it actually accelerated them in Ohio.

This is partly because tort reform actually has nothing to do with healthcare costs. A statistical analysis shows no correlation between the cost of medical malpractice insurance premiums and health insurance premiums. Ohio, for example, has the 16th highest medical malpractice insurance premiums, but is blessed with the 8th lowest health insurance premiums. In contrast, Kentucky has the 27th highest medical malpractice insurance premiums, but the fourth lowest health insurance premiums. Florida has the highest medical malpractice insurance premiums (and is considered the US' number one "Judicial Hellhole"), but is ranked 16th in health insurance premiums. Alaska has the highest health insurance premiums, but is ranked 37th in medical malpractice insurance. In fact, on average, medical malpractice premiums are HIGHER in states that have enacted tort reforms than in states with no reform ($44,799 vs. $43,709).

Although there is no correlation between tort reform and healthcare costs, tort reform is correlated with higher profits for insurance companies. In states with no damage caps, profitability for insurance companies rose by 25% from 2004-2008, but in states with damage caps, profitability rose by 45%.

In other words, with noneconomic damage caps, we have given away the right of an injured person to receive full compensation for their injuries and our constitutional right as citizens to determine the value of those injuries, not for lower healthcare costs, but for insurance company profits.

If you have been hurt by a doctor's negligence, the medical malpractice lawyers of Robert W. Kerpsack & CO., LPA, will fight for your rights to the full extent allowed by the law. Please call or email us today for a free initial consultation.

Yesterday, the Georgia Supreme Court struck down the state's legislative cap on noneconomic damages in medical malpractice lawsuits. The Supreme Court relied on not only the authority of the Georgia Constitution, but on pre-Constitutional precedents that the Georgia Constitution recognized as standing law to say that the right to a jury trial includes the right to damages decided by a jury. Because the noneconomic damages cap explicitly, unilaterally, and categorically limits noneconomic damages, the Court said that it interfered with a jury's ability to decide the actual damages. And, since the finding of damages is considered to be a finding of fact, the Court said the cap was tantamount to telling a jury what verdict it had to deliver.

The Court did its homework on this one, attempting not only to establish the Constitutionality, but to demonstrate the fundamental values and deeply-established roots of personal injury lawsuits like medical malpractice. The first case referenced was in fact the first recorded medical malpractice case in England, dating from 1374, and the Court noted that "mala praxis" was established as one of the five categories of "private wrongs" in Blackstone's 1765-1769 Commentaries on English Law: "mala praxis is a great misdemeanor and offence at common law, whether it be for curiosity and experiment or by neglect; because it breaks the trust which the party has placed in his physician and tends to the patient's destruction" (Book 3, Ch. 8, Sec 4, some spelling modernized).

In addition, the court pointed out that for some injuries, the noneconomic damages are the most important part of a jury's verdict. For this, it relied on the 1860 birth injury case of Smith v. Overby, a birth injury lawsuit where the justice explained the value of nonphysical damages using the example of a man who is spit on in public: "what, I ask, is the actual injury. The mere bodily suffering? That is nothing. Men have a moral as well as a physical nature. Here the injury is done to his feelings, his honor, his pride, his social position. Suffer these to go unprotected, unredressed, and life is no longer tolerable. Hence the jury in such a case should render large damages, not as punishment, but to compensate the actual injury. They must put a price on the manhood of a free man, and mulct the defendant accordingly." In other words, it is the jury's job to somehow try to put a price on the priceless.

Putting a price on the priceless has been a central tenet of tort law since at least the Laws of Ur-Nammu (c. 2112-2050(?) BCE)--which puts prices on a man's eye, his foot, his nose, his tooth and other priceless treasures. In ancient times, this power rested in the king, who could say, "this is the value of your eye, your arm, your unborn child." When we removed the king from government, we rested that power in the people, specifically "the enlightened conscience of impartial jurors." Noneconomic damage caps wrest that power back, replacing the voice of the people with a Sumerian edict, "This much for your deprivation of life, this much for your liberty, this much for your pursuit of happiness."

Unfortunately, since noneconomic damage caps were upheld by Ohio's cuneiform Court, we can only look in envy on those in other states who have been restored the full measure of Constitutional rights, Illinois last year, and now Georgia.

But if you have been hurt by the negligence of a doctor, the lawyers of Robert W. Kerpsack, CO., LPA stand ready to get you the full measure of justice permitted by law. Please call or email us today for a free consultation.

Last week, a California man described how his Toyota Prius experienced spontaneous acceleration, sending him on a harrowing ride on a winding California highway at speeds up to 90 mph. Although the event didn't cause an accident or injuries, the implications were nonetheless serious. The Prius is not part of Toyota's recall of defective vehicles for mechanical sticking of the accelerator pedal. If the Prius turns out to be defective, it could have the consequences could be far-reaching. Not only would the approximately one million Priora in the model years 2004 to 2008 be considered for a new car recall, but every new model implicated in unexplained acceleration events raises the possibility that Toyota's newest recall, like its earlier ones, does not fully encompass the problem. This would continue the impression that Toyota's problems are spiraling out of control.

Perhaps to control this impression, Toyota is aggressively investigating the problem. After hearing of the event Toyota took his car, and thoroughly investigated the problem in the presence of an investigator from the National Highway Transportation Safety Administration (NHTSA) and a California congressman. After finishing its investigations Toyota issued a statement that the man's "account of the event is inconsistent with the findings of the preliminary analysis." Namely, Toyota claims:

The accelerator pedal was in working order, with no sign of mechanical entrapment

The brake override system, which shuts off the engine when the brakes are applied, even if the gas pedal is depressed, was working

The shift lever and power button were functioning as they should and could have been used to stop Prius

The brakes showed wear and damage from overheating

Computer records showed the brakes and accelerator had been applied in an on-and-off fashion

No diagnostic trouble codes in the computer

At this point, no one is claiming these results are final, and investigations are ongoing. Although one spokesman attributed wear on the brakes to "intentional misuse," Toyota has stopped short of accusing the man of fabricating the story, although it has strongly implied it. Instead, it is focusing on the message that the Prius has safeguards that prevent it from being subject to the same defects as Camrys, Corollas, and others.

Although it does not now seem that the Prius is defective, we should note that the initial reports of Camry's unexplained acceleration were met with a similar response from Toyota.

If you or a loved one has been injured in a vehicle accident caused by a defective car, please contact the Columbus, Ohio product liability lawyers at Robert W. Kerpsack CO. LPA for a free case evaluation.

When you drive with your kids and others in the car, it is your worst nightmare: a distracted driver causes a serious car accident, putting your children at risk. This is what happened on Saturday in Clark County, Ohio. A local woman, driving a minivan with six children inside, including her own daughter, was struck in the front passenger side by a station wagon that, according to investigators, ran the red light at the intersection of Ohio 235 and Ohio 41. Police believe distracted driving, rather than drugs, alcohol, or the weather, is to blame for the accident.

Both cars suffered serious damage, and the minivan rolled over off the road. All passengers were injured, and one of the children had to be extracted from the mangled wreck by emergency response personnel. However, all the passengers in the minivan have been treated, but are now recovering from their injuries.

The driver of the station wagon was not so lucky. He suffered critical injuries and died Sunday at Miami Valley Hospital.

The difference, according to the Ohio State Highway Patrol: seat belts. The driver of the station wagon was not wearing his seat belt and though his airbag inflated, the secondary restraint system was insufficient to save his life.

If you have been hurt or lost a loved one in a car accident caused by a distracted driver, you may need the help of a car accident attorney. Please contact the attorneys of Robert W. Kerpsack, CO, LPA today for a free initial consultation.