Monthly Archives: September 2015

Smart Strategies for Maximizing Insurance Claims in Road Accidents

Insurance-claim-form-1-article-2Take the case of the Cardona family from Palmdale, California. They asked the R. Rex Parris Law Firm for help after Jose Cardona, his wife Irene and their son Eduardo were seriously injured when a drunk driver crossed the center line and collided head-on with their vehicle.

Like many people injured in motor vehicle accidents in California, the Cardonas stood to get very little in the way of compensation from the offending driver.

The offending driver was insured, but most Californians carry only the minimum amount of insurance. Known as the 15-30 policy, it offers a single victim of an accident only $15,000 and an aggregate amount of only $30,000 if more than one person is injured or even killed.

“The Cardonas are in their 60s,” says Fowler. “Jose Cardona suffered serious injuries to his legs and knees. Prior to this he was a healthy man, but he now uses a walker to get around. His wife suffered a complex fracture to her wrist and has pain so excruciating in the upper part of her body that she sometimes passes out from the pain. And their son had to drop out of trade school until his abdominal injuries were sufficiently healed.”

He spends all his available time now caring for his parents. And Jose and Irene Cardona can no longer provide daily care for their grandchildren as they once did.

It takes a skilled lawyer with an in-depth understanding of how the insurance industry works in order to make accident victims whole again when there are serious injuries and only a 15-30 insurance policy to cover the costs.

Since it is unlikely that the defendant in these kinds of cases has large pools of money available to fairly compensate the victims of the accident, attorney Fowler looks for opportunities to pursue the insurance company for additional compensation.

In this case, Fowler wrote to the insurance company on behalf of the Cardonas and offered to settle for the $30,000, if the company would pay out in a reasonable period of time.

Insurers have an obligation to do due diligence on behalf of their client and make sure the policy payout is appropriate.

However, when the drunk driver’s insurer defaulted and failed to pay out on behalf of its client in a timely fashion, Fowler advised the Cardonas to sue the driver directly for an amount that was commensurate with their injuries and the change in lifestyle the family suffered.

“There are other strategies that go along with that,” says Fowler. “But we are simply advocating for our clients to put them in the best position to get fair value for the damages they have suffered. The insurer could have paid out when we asked but they failed to do that.”

The firm obtained a verdict in favor of the Cardona family, and Los Angeles Superior Court (Cardona v. Cortes, Case No. MC023925) ordered that they be compensated in the amount of $20,968,903 for pain, suffering, loss of income and future medical care as required.

Under the California Insurance Code, the company has an obligation to the people they insure. The driver admitted to being drunk at trial but disputed the extent of the Cardona family injuries. He will now have to sue his insurance company to get the money.

And since the court has delivered a verdict that clearly indicates the Cardonas deserve compensation well in excess of the 15-30 policy, there is reason to believe the insurance company will ultimately foot the bill.

7th Circuit Grants Standing to Neiman Marcus Data Breach Plaintiffs

Identity-theft-hacker-2The Seventh Circuit ruled that the risk of future harm in a data breach is sufficient to take major companies to court. Plaintiffs, such as the Neiman Marcus Group LLC customers, now have standing to hold companies liable for a data breach, regardless of whether the actual harm of identity theft ever occurs.

The U.S. Court of Appeals reinstated the 2013 cyber attack case that had been dismissed by the district court, holding the likelihood of personal data exposure following a system breach is “immediate and very real.” Neiman Marcus never even investigated the nearly 60,000 software alerts its software system received during the data breach.

Implications for All

As the first federal appellate decision on the issue of standing to assert data breach claims for years, the Neiman Marcus decision will be cited frequently in creating the legal framework for data breach class actions. As one of the first federal appellate decisions on the issue of standing to assert data breach claims, Neiman Marcus will likely cast implications upon other currently pending data breach cases, such as Lewert v. P.F. Chang’s China Bistro, Inc., No. 14-cv-4787 (N.D. Ill. Dec. 10, 2014), a case also before the Seventh Circuit.

The precedent-setting ruling means that companies will likely have to contend with more lawsuits after security breaches that have affected millions of consumers in recent years. The opinion noted that the Neiman Marcus plaintiffs’ allegations go far beyond those at issue in Spokeo v. Robins, a case expected to have wide-ranging federal consumer protections implications.

Plaintiffs’ counsel, Robert Ahdoot, told Law360 the decision means “data breach victims, who carry the burden of protecting themselves against the imminent risk of identify theft and fraud, can now have their day in court against companies who fail to secure consumers’ personal information against hackers.” The plaintiffs are seeking a minimum of $5 million in damages.

Standing to Sue

The court granted the standing to the plaintiffs, based on the uncontested fact that the data breach exposed 350,000 consumers’ personal data. Neiman Marcus admitted in 2014 that of the 350,000 people whose information was stolen, 9,200 individuals’ credit card data had since been used fraudulently, but the number of potential or actual thefts is now irrelevant. The Seventh Circuit determined the Neiman Marcus victims “should not have to wait until hackers commit identity theft or credit-card fraud in order to give the class standing, because there is an ‘objectively reasonable likelihood’ that such an injury will occur.”

According to Bloomberg, the company’s centralized computer system flagged the anomalous behavior of a malicious software program while the data breach occurred. However, the 59,746 alerts set off by the malware were never investigated. Using a different strategy and set of tools than the Target hackers, the Neiman Marcus hackers used custom hacking software and sent the data out through a virtual private network (VPN).

The Neiman Marcus hack was made easy by the point-of-sales system arrangement among the stores’ payment registers. Store registries are connected to the central computer that processes transactions, so the hackers were able to upload their software on multiple registers quickly, after carefully deleting the software at the end of each day.

In finding the plaintiffs suffered a substantial risk of harm, the Court asked rhetorically, “Why else would hackers break into a store’s database and steal consumers’ private information?”

The case is Remijas et al. v. The Neiman Marcus Group LLC, case number 14-3122, in the U.S. Court of Appeals for the Seventh Circuit.

New Herbal Supplement Targeted by Investigation

Herbal-supplements-pills-bottles-articleNew York, NY: The herbal supplement industry faces an additional crackdown, after New York Attorney General Eric Schneiderman announced he was targeting the makers of an arthritis supplement. This is the latest move in a crackdown on herbal supplement makers for allegedly misleading customers by not using proper ingredients in their products.

In February 2015, Eric Schneiderman sent letters to four major retailers requesting they stop selling certain herbal supplements because the ingredients found in the supplements did not match those on the ingredient label. The letters were sent after DNA testing on 78 bottles of herbal supplements suggested that only 21 percent of the herbal supplements were accurate, while 79 percent either did not have the ingredients mentioned on the label or were contaminated with other materials.

One such herbal supplement, St. John’s Wort, reportedly found no St. John’s Wort in the bottle. Other supplements were allegedly contaminated with rice, pine, primrose and other ingredients.

Now, cease and desist letters have been sent to a variety of companies that sell, market or distribute devil’s claw, taken for arthritis and other chronic pain. Thirteen letters were sent, after advanced DNA barcoding conducted by the New York Botanical Garden found that the devil’s claw supplements were made with a plant species that is related to devil’s claw, but less desirable. Companies were asked to propose ways to recall contaminated products and compensate consumers who bought the herbal supplements.

A fourteenth manufacturer, Nature’s Way, agreed to improve the manufacturing of its devil’s claw supplements, refund affected consumers and extend its barcode testing across its product line.

“When a scientific study tests numerous herbal supplements manufactured by more than a dozen companies and finds the wrong plant in just about every one, it raises more troubling questions about whether people who buy dietary supplements are getting what they pay for,” Attorney General Schneiderman said in a news release. “This is yet another sign that weaknesses in the supplements industry’s approach to quality control are having real-world consequences for consumers.”

Devil’s claw is the commercial name for Harpagophytum procumbens and is marketed as a treatment for arthritis and other joint pain. Some products were found to contain Harpagophytum zeyheri, which is similar but not identical to devil’s claw.

In all, 18 devil’s claw supplements were tested by the New York Botanical Garden. For the 16 supplements for which DNA was identified, all contained either the zeyheri itself or zeyheri mixed with procumbens, according to the news release. Among the manufacturers to receive the cease and desist letters were Now Foods, NBTY, Inc., and Shine Supplements.

Nature’s Way, which already reached an agreement with the attorney general’s office, had marketed its devil’s claw products as a combination of zeyheri and procumbens.

Can I Sue a Foreign Doctor for Malpractice in an American Court

Unfortunately, the answer is only maybe, and it may take a long time. American patients that opt to leave the United States to have procedures done overseas probably do not realize that they may be foregoing the legal protection of the American court system. This is part of the reason why procedures performed overseas are so much cheaper: other nations do not have the stringent legal and administrative protections required of American doctors. This could leave a patient bearing most of the brunt of any legal risks associated with such a procedure because it can be very difficult to successfully sue foreign doctors in the US or to bring an action as a foreign citizen overseas.

In the United States, there are many jurisdictional issues that could bar bringing a claim in an American court. Litigants would have to establish that the doctor had sufficient contacts with the United States for it to exert jurisdiction over him or her. Even if the court does find that it can take jurisdiction over the case, it has to determine which nation and state’s laws would apply.

Of course, these questions get even more murky when talking about the legal system of a foreign country. Some nations may not recognize rights to sue by foreigners. Others may bog down in administrative red tape far thicker than anything found in an American court. Some estimate cases for malpractice brought in foreign nations could take 20 years or more to resolve. Worse yet, some nations may try to transfer jurisdiction back to the United States and the US may refuse to accept it, creating a legal back and forth leaving the parties in limbo.

Even if one manages to get a court to take jurisdiction, enforcing a judgment may be nearly impossible. If the judgment is obtained in America, enforcing the judgment in a foreign nation may require filing an entirely new lawsuit to domesticate the judgment, which could take nearly as long as pursuing the case in that country in the first place. If the judgment is domestic, or if the nation agrees to domesticate the judgment of a US court, foreign laws regarding collection of judgments usually differ greatly from American laws and may interfere with seizing or levying on assets and accounts.

Generally speaking, from a legal standpoint, you may need to evaluate whether the risk of being left without legal redress in the event of a medical mistake is worth the potential cost savings of having your procedure performed overseas. With such limited remedies available to patients, and the often lower standards of care in nations offering substantially cheaper medical treatment rates, the risks of medical tourism may far exceed the benefits.

If you are considering medical tourism, discuss the possible risks with your American general practitioner and, if possible, a local attorney. If you have already undertaken to receive treatment from a foreign doctor, and have suffered an injury, you should discuss the particular details of your case with a qualified, experienced attorney. You will need to find an attorney that has experience not just with medical malpractice, but also with international legal disputes. Before undertaking any legal action against a foreign doctor, you should ask your attorney whether your claim will be worth the trouble of fighting an international legal battle. You may find that you do not have the same entitlements that you would when bringing a claim against an American doctor, and this might make a victory a hollow exercise and a waste of time and money.

To find an attorney in your area with the requisite mix of knowledge and experience, use the HG.org lawyer search function. There you will find hundreds of attorneys with a wide array of experience and backgrounds, including ones with the perfect skills for your case.