Houston Personal Injury Attorneys – Smith & Hassler

The driver of the Ford Explorer above was killed in a collision on West Road caused by a suspected drunk driver

Drunk driving appears to have claimed yet another life on Houston’s roads after a man was killed in a wreck on West Road early morning, Sunday July 10, 2011. A pickup truck driven by a man speeding on West Road around 2:15am ran a red light and smashed into the side of a Ford Explorer that was making a left turn onto Deer Trail. Sadly the Explorer driver died at the scene and his female passenger was taken to the hospital. The driver of the speeding pickup was taken to hospital in serious condition: deputies say the man appeared to be intoxicated and he may face intoxication manslaughter charges if his blood sample indicates he was legally drunk. ABC News’ story is here.

If you or a loved on have been victimized in an automobile accident, motorcycle accident, pedestrian accident, bicycle accident or truck accident caused by a drunk driver, call the experienced Houston personal injury attorneys at Smith & Hassler for a free consultation. The earlier in your case you call, the better: theinsurance company will want you to settle for a small amount as early as possible and have you sign a release. This will limit the insurance company’s liability and prevent them from having to pay more later. Smith & Hassler’s personal injury attorneys have aggressively represented injured people in the Houston area and throughout Texas for more than 20-years, including bereaved family members bringing wrongful death lawsuits.

The Casey Anthony trial and her acquittal has highlighted a problem. In many states it is either not a crime, or is only a misdemeanor, to not promptly report one’s child to authorities as being missing. Outraged lawmakers are responding to the verdict by proposing Caylee’s Laws that would allow prosecutors to bring felony charges against parents who do not promptly notify law enforcement their children are missing.

Four days after Caylee Anthony went missing, her mother Casey Anthony entered a hot body contest at a Florida nightclub. For the thirty days or so after Caylee was last seen, Casey Anthony spent her time shopping, hanging out with her friends and going to parties. It was Caylee’s grandmother (Casey’s mother) who called investigators when Casey could not produce her daughter, after which Casey lied to investigators and said Caylee had been kidnapped by an imaginary nanny, and Casey was conducting her own search for her child.

Casey Anthony participating in a hot body contest at a club 4 days after her 2-year old went missing

By Friday July 8, 2011 an online petition at Change.org boasted an incredible 700,000 signatures of people calling for changes to states’ laws on reporting missing children. Lawmakers in at least 16 states have proposed new laws to address the problem, including Texas lawmaker State Senator Chris Harris who says he will introduce a new law for Texas making it a felony to not report a child missing within 48 hours. Under current Texas law it is a misdemeanor only for failing to report abuse or neglect. Senator Harris has said he will introduce a version of Caylee’s Law for Texas during the next legislative session in Spring 2013.

You should support the passage of Caylee’s Law in Texas and when it is proposed call or email your legislative representative and tell them you think Caylee’s Law should be passed in Texas.

The last known picture of Caylee Marie Anthony

Casey Anthony smirks as she speaks with one of her lawyers after her acquittal on murder charges

A very sad day today for the Beaumont, Texas police department who lost one of their officer last night to a motor vehicle collision with a fleeing suspect. Beaumont P.D. Officer Bryan Mitchell Hebert, aged-36, was getting stop-sticks from the trunk of his patrol car last night when the 30-year old suspect, whose name has not been released, crashed a 2008 Dodge Nitro into the front of Officer Hebert’s patrol car pushing it backward into the officer. Officer Hebert had been with the Beaumont Police Department for 10-years; he passed away at Christus St. Elizabeth Hospital. Police say the suspect had assaulted his elderly grandmother and mother prior to the crash. The suspect will be facing a capital murder charge and if convicted may receive the death penalty. Beaumont P.D.’s press release is here. The last officer from Beaumont P.D. who was killed in the line of duty was patrol officer Lisa Beaulieu, killed by a drunk driver April 27, 2007 while directing traffic at the scene of a freeway accident.

Police were able to quickly identify the year, make and model of a hit-and-run vehicle that struck and killed a female pedestrian trying to cross FM1960 near Aldine Westfield Road around 3:00am Friday July 8, 2011. 52-year old Rosie Mitchell of New Waverly, Texas was struck by a 2008 Nissan Armada that sustained damage to the SUV’s passenger side headlight, which broke off in the collision. Rose was found in cardiac arrest in the roadway and passed away at the scene. Harris County Precinct 4 Constables investigators are working with a Nissan dealership and using part numbers to identify the owner of the vehicle involved and are also checking area businesses to see if the collision was caught on any surveillance cameras.

Click2Houston.com’s report is here and includes video. While Nissan is a popular manufacturer and there are a lot of Nissan vehicles on Houston’s roads, the Nissan Armada doesn’t appear to be a particularly big seller as compared to other full-size SUVs such as the Chevrolet Tahoe and Suburban or the Ford Expedition. Put another way, there’s not many Nissan Armadas on the road so this one could be easy to spot. Everyone should be on the lookout for a Nissan Armada with damage to the passenger side headlight: if you think you have identified a vehicle matching that description you can call Crime Stoppers at 713 222 TIPS.

With the vehicle owner not yet being identified it is unknown if alcohol was involved, but given that the accident was at 3:00am on a Friday, and that it would be next to impossible for a sober driver to be involved in this accident and not know it had happened, it certainly looks like drunk driving may have played a role.  Either way, any decent person with nothing to hide wouldn’t run down a pedestrian and flee.

A 2008 Nissan Armada - the make and model of vehicle that sustained a broken front passenger side headlight in the hit-and-run collision that killed Rosie Mitchell.

Our sympathies to Rosie Mitchell’s family and friends for this tragic loss. If you, a friend or a family member have been the victim of a motor vehicle accident, Smith & Hassler can help you.

Tragedy struck early morning Wednesday July 6, 2011 when two teenagers from The Woodlands were killed in a collision in Grimes County with an 18-wheeler. Anisha Patel (age 17) and her passenger Robert Gollnick (age 18) were traveling in a Chrysler PT Cruiser when they collided with a big rig around 1:00am. According to police Ms. Patel was heading east of FM2 when she struck the big rig heading southbound on Highway 6. Robert Gollnick was transported from the scene via EMS to College Station Medical Center where he passed away.  Ms. Patel was pronounced deceased at the scene. Both teenagers were properly restrained with seat belts at the time of the wreck: the 18-wheeler driver was taken to the hospital with unknown injuries.

As personal injury trial lawyers we are thankful for the hard work and dedication of ALL the incumbent Harris County Civil District Court Judges and their dedication to the administration of speedy and fair justice. Judge Larry Weiman of the 80th Civil District Court is particularly deserving of a pat on the back for the speed at which he gets cases on his court’s docket to trial.

Harris County, Texas has a very busy civil district court system. For example, yesterday (Wednesday July 6, 2011) there were 67 new civil lawsuits filed in Harris County District Court. Assuming that is a fairly typical number, that’s 24,445 new suits filed in a year. There are currently 24 civil district judges in Harris County, so that’s just over 1,000 new lawsuits annually for each judge.

In civil litigation delay doesn’t do anybody any good. Lawyers want to move their clients’ cases toward resolution and the parties involved typically want to get the case over and done with so they can have some closure and put it behind them. Judge Larry Weiman is a standout in making that happen. Using the one year period beginning June 1, 2010 and ending June 1, 2011 as a sample, statistics on the Harris County District Clerk’s web site show that Judge Weiman tried more jury trials in his courtroom than any of the other civil district judges.  Judge Weiman had 23 jury trial in his courtroom in that time period, as compared to the average number of jury trials across all courts of 12 trials, nearly twice the average.

Judge Weiman also uses a novel method to set cases for trial. After a lawsuit is filed, courts issue what is called a Docket Control Order (DCO) that notifies the Plaintiff and Defendant of important deadlines in the lawsuit, including the trial setting for the case. The parties have no input into when their case is initially set for trial. What Judge Larry Weiman does when a new suit is filed is informs both sides of the lawsuit in writing that they are to work together and create their own Docket Control Order, then present it to the court by a certain date. This gives the parties to the lawsuit the chance to set deadlines and choose a trial date appropriate to the case. For example: in a simple automobile accident case less time for discovery and an earlier trial date would probably be appropriate and would benefit both sides in getting the case resolved sooner. On the other hand a complex commercial dispute with multiple parties will need more discovery time and a trial date that is further out to allow an opportunity to fully develop the case before trial.

Thanks are due to Judge “Flyin” Larry Weiman of the 80th Civil District Court for his hard work and innovations in making the civil justice system in Harris County better for lawyers and parties alike.

Judge Larry Weiman of the 80th Civil District Court, Harris County, Texas

Last week the Texas Supreme Court issued an opinion in the case Aaron Glenn Haygood v Margarita Garza De Escabedo that will have a profound effect on many personal injury lawsuits in Texas.  The opinion is available online here. Before we discuss the Escabedo opinion, here is a little background to set the stage…

In 2003 the Texas legislature, as part of a sweeping round of tort reform, enacted a new statute: section 41.0105 of the Texas Civil Practice & Remedies Code. The statute reads as follows: “In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.” Since taking effect September 1, 2003 that one sentence long statute has caused all manner of confusion in the area of personal injury litigation in Texas.

The way the statute came to be interpreted by the majority of Texas courts was that in a personal injury lawsuit where the injured person’s medical bills were paid (in whole or in part) by health insurance, the defendant who caused the plaintiff’s injury was only required to pay the plaintiff the amount paid by health insurance, plus any co-pays and outstanding balance, and was NOT required to pay the plaintiff the amount the plaintiff was billed by her medical provider.  Here are two examples:

Scenario A, prior to CPRC Sec. 41.0105 being enacted: Dan Defendant rear-ends Paul Plaintiff at a red light. Paul goes to the hospital for treatment and the hospital bills Paul $1,000. Paul has private health insurance. The health insurance company pays the hospital $500. Paul has a co-pay of $100. The remaining $400 of Paul’s bill is written-off by the hospital as a discount to Paul’s health insurer, who has a pre-negotiated rate with the hospital. Dan owes Paul the $1,000 that the hospital billed Paul. If Paul has to repay his health insurer the $500 they paid on his behalf (as commonly happens), and Paul is reimbursed the $100 co-pay he paid, then there is a $400 upside. That upside goes to Paul.  Prior to CPRC 41.0105 the reasoning was, if an upside should go to anyone it should go to the injured plaintiff, rather than allowing the negligent defendant to benefit from the plaintiff’s private health insurance.

Scenario B, after CPRC Sec. 41.0105 was enacted: Dan Defendant rear-ends Paul Plaintiff at a red light. Paul goes to the hospital for treatment and the hospital bills Paul $1,000. Paul has private health insurance. The health insurance company pays the hospital $500. Paul has a co-pay of $100. The remaining $400 of Paul’s bill is written-off by the hospital as a discount to Paul’s health insurer, who has a pre-negotiated rate with the hospital. Dan owes Paul $600: the $500 paid by Paul’s health insurance company plus Paul’s $100 co-pay. After CPRC 41.0105 was enacted the ultimate effect of the statute was to allow a defendant to benefit financially from having the good fortune to hit a Plaintiff who had private health insurance.

So….CPRC 41.0105 (often referred to as “paid versus incurred”) limited the amount of money a plaintiff could recover for past medical bills when the plaintiff’s health insurance paid their bills. But: did the statute limit what evidence of medical bills the plaintiff could present to the jury? Could the plaintiff present the jury evidence of the full amount the hospital billed, or could the plaintiff only present the jury with the amount paid by health insurance, plus co-pays and balances owed? Prior to the Texas Supreme Court issuing the Escabedo decision last week, the answer was “We’re not sure.”  After the Escabedo decision, the answer is: a plaintiff may only present a jury with the amount paid by health insurance, plus co-pays, plus balances owed, and MAY NOT present the jury with evidence of the amount that was originally billed by the hospital (or other medical provider).

Prior to Escabedo what most civil trial judges in Texas did was to allow the plaintiff to present the jury with evidence of the full amount billed by medical providers, and if the jury awarded the past medical bills in full, the defendant could make a motion with the court post-verdict to reduce the award of past medicals to the amount paid by health insurance, plus co-pays, plus balances owed. After Escabedo however, personal injury Plaintiffs must now redact their medical bills to remove evidence of the full amount charged by the medical provider, and also (presumably) remove evidence of any health insurance write-offs or discounts.

If you have followed along this far you may be thinking: so what? If all the plaintiff can recover is the amount paid by health insurance, plus co-pays, plus balances owed, what does it matter if that is all the jury hears evidence of?  Well it actually does matter, and here’s why.  Firstly Escabedo sets up a bizarre situation where two plaintiffs sitting next to one another in the back seat of a car rear-ended by a defendant get to put on significantly different evidence of past medical expenses at trial if one plaintiff has health insurance and the other does not. Here’s an example to illustrate:

Plaintiff Alpha is sitting in the right hand side rear seat of a car. Dan Defendant rear-ends the car. Plaintiff Alpha is taken to Memorial Hermann who bills Plaintiff Alpha $1,000 for their services.  Alpha has health insurance with Blue Cross Blue Shield.  BCBS pays Memorial Hermann $400. Alpha has a $150 co-pay. The remaining $450 is written off by Memorial Hermann as an HMO discount per Memorial’s agreement with BCBS. Alpha gets to present the jury with evidence of $550 of past medical bills at trial.

Plaintiff Bravo is sitting in the left hand side rear seat of the same car. Dan Defendant rear-ends the car. Plaintiff Bravo is taken to Memorial Hermann who bills Plaintiff Bravo $1,000 for their services; by coincidence Bravo gets the very same treatment and diagnostic tests Alpha gets.  Bravo has no private health insurance so his bill remains unpaid until the lawsuit over the car accident goes to trial. Alpha gets to present the jury with evidence of $1,000 of past medical bills.

Same accident, same hospital, same treatment, same original billed amount, same jury, same trial, but Alpha and Bravo get to present different evidence of damages for past medical expenses to the jury. When it comes to presenting evidence of past medical bills, the Escabedo decision creates two classes of Plaintiffs: those with health insurance and those without.

Here is another reason this matters: rightly or wrongly, juries are known to use the amount of a personal injury plaintiff’s medical expenses as an index or guide when trying to decide how much to award for “general damages.”  General damages include what are commonly referred to as “pain and suffering” damages, which would include physical pain, mental anguish, physical impairment and disfigurement.

Say a personal injury plaintiff sustained a severe back injury after being rear-ended by an overloaded 18-wheeler and had to have a lumbar fusion procedure. Factoring in the cost of hospital admission, anesthesia, hardware and surgeon’s fees, a major procedure such as a lumbar fusion can routinely cost in excess of $100,000.  However, due to pre-negotiated rates health insurers have with hospitals, surgeons, anesthesiologists and other medical providers, the amount ultimately paid for a $100,000 back surgery, factoring in patient co-pays and the amount paid by health insurance, may be closer to $30,000.

If a jury is presented with $100,000 or more in past medical bills for a plaintiff who had a major back surgery and whose spine will never, ever be the same again, and who cannot pursue the hobbies or family activities he or she once enjoyed pain-free, it is a less daunting task to ask that jury to award $100,000 for pain and suffering than if the jury heard evidence of $30,000 in past medical bills.

If the jury heard evidence of the $100,000 the plaintiff was billed by his doctors for the back surgery (as the jury would have pre-Escabedo) an award of $100,000 for pain and suffering would be an award that was the same amount as the past medical bills. If on the other hand the jury heard evidence of $30,000 in past medical bills (as the jury will after Escabedo) an award of $100,000 for pain and suffering would be more than three times the amount of past medical bills (at least, that’s how it would appear to the jury).

Escabedo was a 7-2 decision by the Texas Supreme Court.  The opinion was written by Justice Nathan Hecht and upends long-standing Texas jurisprudence that a negligent defendant who injures a plaintiff should not benefit from that plaintiff’s private health insurance.  Escabedo is a big win for liability insurance companies in Texas and it will undoubtedly save them millions of dollars annually that would otherwise have gone to injured Texans and their families.

So if a drunk driver slams into you and your family late one night in Houston and you’re rushed to the hospital, go ahead and turn over your health insurance card as soon as you get to the emergency room. Just think about all the money you can save the drunk driver or his insurance company, not just on past medical bills, but also on your pain and suffering damages at trial when the jury is presented with evidence of a fraction of the amount the hospital charged to treat you and your family.

A two car crash over the 4th of July weekend has tragically claimed the lives of Houston area parents Josh Berry (41) and Robin Berry (40) and has left their three children Peter, Aaron and Willa in a Lubbock Hospital. Josh and Robin died in the Saturday July 2nd collision as the family drove back home from Colorado. A Toyota sedan carrying two people veered into the opposite lane of Highway 285 in Fort Stockton and collided with the Berry family’s 2003 Chrysler minivan. 28-year old Colleen Doyle of Phoenix Arizona, a passenger in the Toyota car, also died in the accident. Michael Scott Doyle (also from Phoenix) the 31-year old driver of the Toyota, is in hospital in serious condition. 9-year old Peter Berry and 8-year old Aaron Berry were in critical but stable condition at Covenant Hospital in Lubbock, while their 6-year old sister Willa Berry was conscious on Monday afternoon but remained in serious condition.  KHOU’s story indicates 8-year old Aaron underwent abdominal surgery on July 2nd to repair lacerations to his internal organs and on Sunday doctor performed a spinal surgery, installing hardware to stabilize his spine. 9-year old Peter also underwent a spinal surgery. A family friend named Jennifer Deutsch was quoted as saying it is unknown is the boys will regain use of their legs, and they will require significant rehabilitative therapy when they return to Houston. A fund has been established to help Peter, Aaron and Willa.  The fund is called the Perlo-Berry Family Fund and donations can be made online through the Congregation Beth Yeshurun web site here.

Our hearts go out to Aaron, Peter and Willa and their extended family. It is a tragedy for a child to lose a parent at any age, but for these children to lose both parents at once while they are so young is devastating. God bless them.

Josh Berry (41) and Robin Berry (40) with Peter (9), Aaron (8) and Willa (6). Mr. and Mrs. Berry were lost in an automobile accident on Saturday July 2nd, 2011.

Update: On Thursday July 7th KHOU and other local media outlets reported that the Berry children have been returned to the Houston area and are in a hospital in the Houston Medical Center. The funeral service for Josh and Robin Berry was held at Beth Yeshurun synagogue in Houston on Wednesday July 6th, was attended by approximately 1,000 mourners and lasted for three hours. The Perlo-Berry Family Fund remains open and is accepting donations: you can donate as little as $10. Everything will help.

Channel 13 Eyewitness news is reporting a major collision between two 18-wheelers on Interstate 10 eastbound in Sealy, Texas. There is no word on whether anyone was injured, and the entire eastbound side of I-10 has been closed. At least one of the 18-wheeler appears to have burned up.

Police are working to determine what caused a serious head-on crash last night on FM 1960 and Oak Timbers.  Three people were injured in the car accident and it is through that alcohol may have contributed to the wreck. According to deputies the female driver of a Pontiac Grand Am was swerving when she drifted across the center line and struck an oncoming car (which based on the photograph was a Chrysler PT Cruiser or a Chevrolet HHR). Both drivers involved were transported to the hospital and reportedly were in stable condition, but a passenger in the Pontiac Grand Am is in serious condition. The driver of the Pontiac was to be tested for possible alcohol consumption. ABC Channel 13’s coverage is here.

Three were injured, one seriously, in this head-on crash at FM 1960 and Oak Timbers

If you or a loved on have been victimized by an automobile accident, motorcycle accident, pedestrian accident, bicycle accident or truck accident caused by a drunk driver, call the experienced Houston personal injury attorneys at Smith & Hassler for a free consultation. The earlier in your case you call, the better: the insurance company will want you to settle for a small amount as early as possible and have you sign a release. This will limit the insurance company’s liability and prevent them from having to pay more later. Smith & Hassler’s personal injury attorneys have aggressively represented injured people in the Houston area and throughout Texas for more than 20-years, including bereaved family members bringing wrongful death lawsuits.