Archive for 2010

We want everyone to enjoy this holiday season. To some it means more time with family and friends, to others it has religious significance and to many it means purchasing gifts for loved ones, especially beloved children.

Sadly, the holiday season always brings forth stories of unsafe toys that cause injury, even death, to little ones. Recently, we wrote in the Hausmann-McNally newsletter of a large recall of Fisher Price trikes and other items. The holidays notices also make us aware that some toys are painted with unsafe, lead paints. One thing we should watch out for, and perhaps toy recalls cannot predict, is things that get stuck in a child’s throat. This can range from a popcorn kernel to a small plastic toy that a toddler left under the sofa.

In 2009, more than 250,000 children were treated in hospital emergency rooms nationwide for toy-related injuries, according to the California Public Interest Research Group.

This group has produced a common-sense list which we are happy to share with our readers.

• When buying toys, look for clearly marked age ranges on the packaging.
• Check websites such as www.recalls.gov, www.toysafety.mobi or www.cpsc.gov, to learn of toy recalls.
• When giving bicycles, skateboards, skates or scooters, include a helmet.
• Look for toys labeled “phthalate-free.” Avoid soft-plastic toys or those made of PVC, which often contain phthalates.

When buying toys for kids under 3, avoid:

• Small toys or toys with breakable parts that can fit inside a toilet tissue tube.
• Round objects or small balls that can block a child’s airway. Balls should be at least 1.75 inches in diameter.
• Cylindrical pieces, like toy nails, that can lodge in a child’s throat.
• Never give balloons, which can block the airway.

The full CalPIRG “Trouble in Toyland” report is available at www.calpirg.org.
And if you are so unfortunate to have a child injured as a result of any unsafe toy or object, feel free to call our office. Our attorneys are aware of the hazards in the toy market and willing to help your family recover from injuries suffered by your child. The number to reach a Hausmann-McNally attorney is number is 800-227-6699

Charles Hausmann
President
Hausmann-McNally, S.C.

Hausmann-McNally, S.C. personal injury attorneys often hire expert witnesses to give their evaluation of a situation—especially when the causes and effects of an incident are being debated in court. These expert witnesses are often able to swing a law case one way or another.

In traffic accidents, police reports often document who is at fault. In other types of cases the personal injury attorney must first establish the malfeasance, neglect or negligence of a third party.

In our experience, insurance companies try to minimize the injuries and consequences, using all sorts of tactics. Often they claim that a pre-existing condition was responsible for the client’s pain and loss. They bring in their own experts and responsible law firms have to counteract them. So we often hire doctors and other medical experts to testify as to extent, causes and effects of the client’s injuries.

In one case, we represented a tool-and-die maker who suffered hand injuries in an accident that was not his fault. Initially, it was felt that his damage wasn’t that bad, but after a medical expert pointed out he had to abandon his lucrative profession, the picture changed. A vocational expert was called in to determine what kind of training he needed to begin a new profession, now that his hand was damaged. An economic expert proved useful in calculating the amount of money the client lost over the course of his working life because of his new situation. With the help of these experts, Hausmann-McNally asked for, and obtained, a larger settlement for the client.

Because civil law is able only to “punish” by assessing money damages, judges and juries need specific numbers, facts and projections to help them determine how much money to award an injured party.

In over 35 years fighting for clients’ rights in personal injury cases, Hausmann-McNally, S.C. has learned some critical facts about retaining expert witnesses.

The witness has to be a real expert, one with deep knowledge and passion about the subject. This is not a business for amateurs as the opposing attorneys will tear them to shreds in court if they don’t know their stuff. The expert witnesses are going to be cross-examined in great detail they have to be able to show how they came to their conclusion, show their methodology as well as say when and how they arrived at their decisions. Ideally, their testimony should be so convincing and credible that the opposing attorney will only say, “No further questions, your honor.”

Personal injury law firms have to take the time to interview the prospective expert witness. Although you can contact “experts” via the Web, we have learned there is nothing more important than meeting the individual face to face. We need to make sure the person is personable, articulate, keeps a cool head under close questioning and, most of all, gives a clear, credible explanation for the point(s) we want to make with the jury or judge.

Expert witnesses often come with a high price tag. Hausmann-McNally has made it a policy to hire the most qualified people when necessary. This is a point to consider when hiring a law firm. Some firms simply do not have the resources to hire quality expert witnesses.

The best witnesses are not involved in the case other than to give their testimony. Certainly the firm seeks the best expertise to bolster a client’s case, but we expect the expert witness to evaluate the situation as he or she sees it. A jury or judge would be able to tell if there was something fishy about the testimony. And because expert witnesses have nothing but their reputations to “sell,” they have to be as professional as the attorneys in the case.

Some areas that Hausmann-McNally has retained expert witnesses in areas include:

• car safety
• crash worthiness
• ladders
• appliances
• building construction and safety
• premise security
• accident reconstruction
• speed and braking distance
• seat belts
• economists
• life care planners
• vocational experts

As we become more involved in inadequate security cases , we learned from security experts who were able to demonstrate in court that proper security is a complex process that takes constant monitoring. In one bar shooting case, defendants claimed they had adequate security in their tavern. But they hired people who lacked training or aptitude (as evidenced by the guard shooting one of the patrons in the parking lot).  The expert witness retained by Hausmann-McNally helped convince the court that this tavern’s “security” was not adequate or professional. Our client was awarded a $1.7 million judgment in that case.

There are other examples where we learned much from these people who specialize in details of engineering, safety, economic loss, construction, and psychology.

It takes time and money to interview experts, and we are diligent in vetting their credentials and checking their references. We have found that the right experts with the right knowledge can be a huge asset in a court of law. Although expensive, we find they are worth every penny.

Charles Hausmann
President
Hausmann-McNally, S.C.

Cell phone, texting update: Wisconsin’s ban on text messaging takes effect Wednesday, Dec. 1. Wisconsin was the 25th state to outlaw texting while behind the wheel.

Current prohibitions:
Text messaging outlawed for all drivers. Fines from $20 to $400 with a possible 4 points against the driver’s license.
The state outlaws distracted driving, or “being so engaged or occupied as to interfere with the safe driving of that vehicle.” The fine is $173 and 4 points.

Distracted driving notes:
Wisconsin’s new ban on text messaging while driving specifically prohibits the writing and transmitting of messages while the vehicle is in motion. It does not outlaw the reading of text messages or use of the Internet. Police say they’ll fall back on the inattentive driving law if other activities on handheld electronic devices lead to unsafe behaviors.

State officials say 18 percent of Wisconsin’s vehicle crashes in 2009 were caused by distracted drivers. 

2010 legislation:
Wisconsin Assembly Bill 496: Would outlaw text messaging while driving. Fines from $20 to $400 (formerly $100-$800). The Assembly Transportation Committee voted 12-0 to approve the bill on Nov. 10, 2009. Approved by the full Assembly on Jan. 19, 2010, and sent to Senate, which amended and signed off on the bill April 13. Final approval came in the Assembly on May 4 and AB 496 was sent to the governor, who signed the legislation May 5. (Barca)
Wisconsin Senate Bill 103: Would prohibit use of text messaging devices while driving on state roads and highways. Approved by the state Senate in a 27-5 bipartisan vote on Oct. 20, 2009. The Assembly approved its version, AB 496, above, on Jan. 19. (Lasee)
AB 341: Would prohibit any under age 18 who is driving under an instruction permit or probationary license from using a cell phone of any kind, or other wireless telecommunications devices if they are not installed in the vehicle. Last seen in Assembly Rules Committee. (Pasch)
SB 91: Would ban school bus drivers from using cell phones or other wireless communications devices while transporting students. Approved by the Senate Transportation Committee in a unanimous vote on Sept. 16, 2009, and sent to the Rules Committee. (Carpenter)
SB 355: Seeks to outlaw text messaging while driving. Sent to Senate Transportation Committee on Oct. 16, 2009. (Lehman) 2010 legislation notes:
Rep. Peter Barca, D-Kenosha, saw his anti-text messaging legislation AB 496 approved by the full Assembly in an 89-6 vote on Jan. 19. The Senate passed its version, SB 103, in October. Fines and penalties are the only differences of note between the two bills.

“We don’t foresee a problem with the Barca bill,” a spokeswoman for state Sen. Russ Decker, D-Weston, told the Wisconsin State Journal in a story on the text messaging bill passage.

Assembly Majority Leader Tom Nelson, D-Kaukauna, made it a priority to schedule a vote on the text messaging bill AB 496 when the 2010 session began.
The Wisconsin teen-driving bill, AB 341, would bring fines of up to $40 for a first offense and up to $100 for subsequent violations in the same year. Sponsor Rep. Sandy Pasch, D-Whitefish Bay, is not in favor of expanding the bill to include all drivers. “Many people are still reluctant to give up their cell phones, despite the evidence.” The bill received an Assembly committee hearing on Sept. 10, 2009.

The text messaging bill SB 103 would bring fines of between $100 and $400 for first offenses; between $200 and $400 for subsequent offenses; and between $300 and $2,000 for causing bodily harm while texting. 30-day jail terms could apply for injury accidents. State Sen. Alan Lasee, R-De Pere, is the sponsor. The bill was approved by the transportation committee on July 17, 2009. Lasee agreed to change the bill to include just drivers under 18, but Republicans pushed for the plan to cover all drivers before passage on Oct. 20. The text messaging ban was sent to the Assembly and approved by its Transportation Committee.

A similar bill on driving while text messaging — SB 355 — passed the Senate but ultimately failed last year. “It does not take a rocket scientist to come to the conclusion that text messaging is one of the most dangerous things that one can do while driving,” Lasee has said. “This is no different than writing out Christmas cards to your family while driving down the road, and it is an accident waiting to happen.”
The city of Black Rock is considering a ban on cell phone use for all drivers.

State Rep. Jerry Petrowski, R-Marathon, has three times proposed bans on teenage drivers using cell phones and text-messaging devices.
Here’s a scary one: Two teenage girls in the Town of Rietbrock were both cited for driving while drinking and text messaging. They crashed their car and it rolled over. Apparently the passenger was steering while the driver text messaged.

Regional ordinances
Waupaca County has banned handheld cell phone use by drivers and text messaging, but the sheriff has refused to enforce the mobile phone ordinance. “I think the right way to go about it is statewide,” Sheriff Brad Hardel said. “I would prefer to use it as a warning and educational device at this point.”

The city of Kenosha has banned text messaging while driving. The ordinance was approved in November 2008.