Recently in Injury News Category

Hell's Angel, Kevin Augustiniak, Pleads Guilty to Murder

A member of the world famous Hell's Angels motorcycle club plead guilty to murder in an Arizona court:

Kevin J. Augustiniak, who pleaded guilty last week to second-degree murder, was originally indicted in 2003 on suspicion of murdering Cynthia Garcia in October 2001 with other members of the motorcycle club, then dumping Garcia's body in the desert...  

Augustiniak, 33, and other members of the gang met Garcia, 44, at a party at the gang's Mesa clubhouse in late October 2001. As the party went on, members of the club began to think Garcia was being disrespectful, so they beat her until she was unconscious, "stomping on her head repeatedly," according to court documents.

("Mesa Hells Angel guilty of murder- Plea made in brutal killing of Valley woman in 2001" by JJ Hensley of the Arizona Republic)

As reported in the story, the murder investigation against Mr. Augustiniak was part of a larger investigation by federal agents against the Hell's Angels entire organization. The federal government is essentially treating the Hell's Angels as a organized crime syndicate. 

While this may sound like a standard Hollywood movie about motorcycle riders in Arizona, it is all too real. My hope is that both federal and state law enforcement do not begin to assume anyone who rides a motorcycle is a criminal or prone to violence. 

Arbitration in an Arizona Motorcycle Accident Case

If someone is hurt in an Arizona motorcycle accident case, or any accident case for that matter, and the case is set for arbitration, what does that mean? Does that mean whatever is determined at the arbitration hearing is the end of the case, and that there will not be any trial?

In Arizona, arbitration is a procedure by which the parties can postpone or sometimes avoid litigation in the trial courts. Arbitration can be one of four different combinations: binding, non-binding, mandatory, and non-mandatory. For example, in Maricopa County Superior Court, which includes the metro Phoenix area, if the dispute is for an amount less than $50,000.00 arbitration is mandatory but non-binding. That means an arbitrator must rule on the matter before it can proceed to civil trial.

But even though it is not mandatory, it is not binding. It is not binding because if one party, or both for that matter, disagree with the ruling, can appeal the arbitrator's decision. However, if the appealing party does not do at least 25% better than the arbitrator's ruling, the appealing party is liable for the non-appealing party's fees and costs.

If an arbitration is binding, that means the result of the arbitration is final and there is no appeal. That usually occurs when the parties agree to binding arbitration either in a contract or as a method to resolve the matter.

Many people confuse the word mediation and arbitration. They are not the same thing. Mediation just means a third party will try to help the parties resolve the matter, but he does not have any power to force a decision or enforce any ruling.

How Madman Shows the Good "Bad Guy Trial Lawyers" Do

September 23, 2011


Personal injury attorneys are not very popular. They are blamed for many things wrong in this country. Politicians, particularly the Republican party, loves to blame "trial lawyers" for almost everything wrong with the nation, from the debt crises to EPA regulations. Most media seems to go along with that point of view, and of course, jokes about personal injury attorneys never go out of style.

That is why I find the show AMC show Madman so interesting. I don't really like the show itself. It is slow paced and the story lines tedious. What I am referring to is how the show portrays life in America back before plaintiff's attorneys made progress for the American consumer. If you watch the first couple of episodes of season one, you will see children playing with dry cleaning bags covering their mouths, children playing around in a moving car, pregnant women, and everyone else for that matter, smoking all the time. Before our time, such behavior was considered normal and safe, but now we know better. And the reason we know better is at least in part to the personal injury attorneys.

And while I do not know how accurate it is, the most interesting part is not just the smoking, but the anger and indignation the tobacco industry displayed when the government told them they could no longer advertise that smoking actually made someone healthier! We then get an inside look at how the tobacco industry used modern persuasion and manipulation to convince Americans smoking was perfectly healthy, even though all the available science showed the opposite.

When one considers how much safer the American consumer is now from the days of Madman, maybe trial lawyers aren't so bad after all.

MCSO Deputies Attack Man, Michael T. Wyman, Greeting His Friend and Then Accuse Him of Multiple Felonies

September 16, 2011

The following story is about as sad and disturbing as it gets. During a recent NASCAR event in Phoenix, Michael T. Wyman, saw his friend and gave him a bear hug. Apparently, in the eyes of Maricopa County Sheriff's deputies providing security at the event, that was enough to attack Mr. Wyman, arrest him, and then charge him with multiple felonies.

Fortunately for Mr. Wyman, the Maricopa County Attorneys' Office, responsible for prosecuting this case, dismissed all the charges against Mr. Wyman. Now Mr. Wyman is suing Sheriff Joe Arpaio and the Maricopa County Sheriff's Office (see "Peoria man sues Sheriff's Office, cites abuse by deputies" by JJ Hensley)

Michael T. Wyman, 50, maintains in his lawsuit that he greeted an old friend with a bear hug near the track's Speed Cantina during a NASCAR race last November when, without warning, a deputy put him in a choke hold. The deputy threw him to the ground, Wyman alleges, and another deputy began shooting Wyman in the leg with a stun gun. 

Wyman was charged with resisting arrest, aggravated assault and disorderly conduct for his role in the Nov. 13 incident, but a judge dismissed the charges in March at the request of prosecutors.

The important point about this case is that all the available evidence indicates the deputies overreacted, and then, to protect themselves from sanction, blamed everything on Mr. Wyman, even though he did absolutely nothing wrong. According to the story, "a handful of witnesses acquainted with Wyman, including a firefighter and a 911 operator, could verify Wyman's claims."

According to his personal injury attorney:

Wyman continues to experience nerve damage from the stun-gun shock and has undergone surgeries, including a skin graft, to repair damage from the weapon and broken bones from a deputy stomping on Wyman's foot... 

If it is true that the deputies overreacted, I don't understand why the worst thing that will happen to the deputies is that the department and Sheriff Arpaio getsued.  It does not even seem like they will lose their job.  But imagine if these were not law enforcement but regular citizens who overreacted at a bar fight?  Wouldn't they be facing jail time for aggravated assault with a deadly weapon and charges for false reporting?  Why should deputies get off easy just because they wear a badge

Can the Free Market Reform the Personal Injury System?

September 11, 2011

Every election cycle, with one approaching, both Republicans and Democrats argue about who is responsible for the fact 14% of America's GDP is devoted to health care. Health care is expensive, and getting even more expensive, so who is to blame? Democrats blame insurance companies and say that the Republican party is beholden to insurance interests, while Republicans blame trial lawyers and say they control the Democratic party.

Assuming for the sake of argument that the civil litigation system is out of control, what can be done about it? Notwithstanding the disaster that was Wall Street and the credit default swap fiasco, is there is any reason to think free market reform of the civil litigation system will better evaluate claims and liabilities than juries and judges?

Under English common law, which America follows, a plaintiff does not have the right to sell his claim. In other words, if you are hurt and have the right to sue someone, you do not have the right to sell your claim, collect the money, and let someone else deal with the lawsuit. The rational against allowing this behavior is that it would encourage speculation.

But what if a plaintiff could sell his claim, and in addition, a defendant could buy insurance after the fact, which could be purchased serially by numerous parties? Eventually, the price to buy the claim will equal the price to purchase after the fact insurance, in which case the case will be liquidated by free market pricing.

By way of example, assume Bill hurts John in a car accident. John sells his claim for $15,000 to Greg. Bill purchases after the fact insurance from David for $17,000. A neutral third party observer (the selling of claims and purchasing of after the fact insurance is secret from one another) gives Greg $15,000 and David makes $2,000 for his effort, and thus, the market values the injury at $15,000.

Now assume John sold his claim to Greg for the same $15,000 price, but David only paid Bill $13,000. Because David paid Bill less than Greg paid John, nothing happens and these rounds will continue until eventually the amount paid for after the fact insurance equals or exceeds the current price of the claim. If there is no resolution, let's say for 10 days, then all parties are returned to starting position and they can either try again through this process, or the normal civil litigation process.

For anyone reading this, keep in mind this is not how the personal injury actually works, just a possibility for evaluating and liquidating claims.

Motorcycle Fundraiser for Marine Benjamin Davidson Cancelled

marineharley.jpg

It was such a great story. A Marine veteran from Afghanistan and Iraq comes back home to Arizona and rides a motorcycle. But unfortunately for him, Benjamin Davidson, someone steals his Harley Davidson. So in an effort to alleviate the pain, a local organization, Phoenix Soldiers, decides to have a fundraiser and buy Sgt. Davidson a new Harley Davidson (Motorcycle Reportedly Stolen From Disabled Veteran in Phoenix).

A motorcycle belonging to a disabled veteran who recently returned to the United States after tours in the Middle East has reportedly been stolen.  Ben Davidson, a disabled veteran now living in Arizona, completed three combat tours in Afghanistan and Iraq. But Davidson's only mode of transportation was nowhere to be found when he returned to his north Phoenix apartment

So far so good. But there turns out to be a problem. It seems Sgt. Davidson is facing criminal charges, and not just any charges, but felony charges for aggravated assault (Marine's Mesa fundraiser canceled amid controversy by Alex Ferri of the Arizona Republic

The organizer of a fundraiser for a former Marine who claimed his motorcycle had been stolen has canceled the event after learning that the veteran is facing criminal charges in connection with an assault.

The charges against Davidson stem from a January incident outside his Phoenix apartment complex. According to court records, Davidson is awaiting trial on aggravated assault charges and other counts in connection with the incident.

Mr. Davidson says he never asked for the fundraiser and he says he suffers from Post-Traumatic Stress Syndrome as a result of the combat he witnessed while deployed overseas.   At this point, it is important to remember that the police have only charged Mr. Davidson with a crime and he is not convicted him of anything.  I would have hoped that under the circumstances, Phoenix Soldiers would have given him the benefit of the doubt. 

Carefree Motorcycle Accident and Michael Jakscht


I have already written quite a bit on the Carefree motorcycle accident case, the one that recently resulted in a mistrial.  And while I have already written both about the criminal and DUI aspect and the motorcycle injury aspect of the case, I would to elaborate on a basic point: motorcycle injury cases are very different from car accident cases. 


Of course, that motorcycle and car cases are different from one another is obvious, and that point would hardly need clarification? So what exactly do I mean?  What I mean by it is that the victims of motorcycle accidents are treated very differently from the victims of car accidents. 

As I wrote before, I have the nagging suspicion that if Michael Jakscht had run into a car with four people dying as a result, instead of killing four motorcycle riders, the result of the criminal case would have been quite different. (see "Carefree Motorcycle Mistrial and the Michael Jakscht case")   

I can't help but think that if this case was a car accident instead of a motorcycle accident, the result may have been different. Certainly, as someone who rides a motorcycle myself and has represented motorcycle riders in accident injury cases, I am aware that many people- especially insurance companies- consider motorcycle accidents, even when the motorcycle rider is not at all at fault, the "cost of doing business" and that motorcycle riders have essentially assumed the risk of getting hurt. 

The fact is many people do not like or care for motorcycles and motorcycle riders.  Many people, in fact, assume that anyone who rides a motorcycle is asking for trouble and if they get hurt, well then that is the riders fault even if the rider did not improper.   

In other words, getting hurt even through the fault of another person is just the risk a motorcycle takes, and he should not complain when he does get hurt. That is why it is important for anyone who  is injured in a motorcycle accident that they make sure that any potential jury is screened very well.  

It would be very interesting to find out how carefully the Maricopa County Attorneys' Office screened the jury pool in the Michael Jakscht, and how much effort they put into humanizing the motorcycle victims during opening statements, direct examination, and closing arguments. 

Mistrial in the Michael Jakscht Carefree Motorcycle Death Case

In what turned out be a shocking result, a Maricopa County Superior Court jury could not reach a verdict in Michael Jakscht's case.  He is the truck driver who killed four motorcycle riders in Carefree. Jakscht, 47, was charged with four counts of manslaughter, five counts of aggravated assault and two counts of endangerment. 

Clyde Nachand, 67; Stephen Punch, 52; and Daniel Butler, 35, died at the scene. Dayle Veronica Downs-Totonchi, 47, died a day later.

According to a report in the Arizona Republic by Michael Kiefer

A truck driver for a sanitation company, Jakscht had just delivered a load of manure to a speedway racing track near Lake Pleasant about 1 p.m. and was looking for a place to eat on Carefree Highway.

He told police after the accident that he saw the motorcyclists, then looked away. And when he looked back, he said, he noticed the traffic light had changed but simply couldn't stop in time.

The reason for the mistrial, the jurors were deadlocked 9 to 3 in favor of acquittal, is that the Maricopa County Attorneys' Office did not prove that Mr. Jakscht was actually impaired while driving. And according to news stories, Mr. Jakscht actually passed all field sobriety tests police administered at the time of the accident. 

Because the case was a mistrial as a result of a jury deadlock, double jeopardy does not apply and the Maricopa County Attorneys' Office has the right to charge Mr. Jakscht with the exact same allegations again. 

According to the news stories and from what I could find at the Maricopa County Superior Court website, Mr. Jakscht was not charged with felony or aggravated DUI.  The important thing about a illegal drug DUI is that if someone has an illegal drug in their system, even if it does not impair his ability to drive, that driver is still guilty of a DUI




Arizona Motorcycle Tragedy: The Defendant Truck Driver, Michael Jakscht, Testifies

It is probably the biggest motorcycle injury case of the past decade: in March 2010, a truck driver crashes into a group of stopped motorcycles in North Phoenix and kills 4 motorcycle riders. The driver of the truck, Michael Jakscht, was charged with four counts of manslaughter. In that trial, Mr. Jakscht testified that (as reported by Eric English of ABC 15 Phoenix):

[T]he crash on a mechanical failure with the truck he was driving. "I'd say it was fine throughout the morning, then gradually it just pulled to the left," he said. Jakscht told the jury he conducted a full brake inspection prior to getting behind the wheel that day.

He said through the course of his morning drive, the truck's brakes seemed to fade before giving out. "When I put the brake on, it made a sound," he Jakscht said.

He described the chaos, panic, and growing crowd at the scene and he described his condition after the crash as confused and nervous. "I was in shock, I was numb," he testified.

While Mr. Jakscht passed the field sobriety tests at the scene, he voluntarily submitted to a chemical test, which revealed he had methamphetamine in his system.  With that in mind, Mr. Jakscht is fortunate in that the Maricopa County Attorney could have charged him with 4 counts of second degree murder.  My experience is that when someone is responsible for driving under the influence and that is the proximate cause of a fatality, then prosecutors routinely charge those deaths not as manslaughter, but as second degree murder. 

I think this tragedy demonstrates the need for motorcycle riders to stay in gear while sitting at an intersection.  Staying in gear while waiting for a traffic single is to designed to prevent accidents like this one because if the rider can hear or see an oncoming accident, he can then quickly accelerate and leave the path of the oncoming vehicle.  Of course, if the motorcycle is in neutral, the rider can still leave, but not as quickly. 


What is your favorite Motorcycle Movie?

Great_escape.jpg

Fighter pilots have Top Gun, wrestlers have Vision Quest, boxers have Rocky, and basketball players have Hoosiers. So what do motorcycle riders have? Which is the movie for motorcycle riders?  According to the New Zeland Herald, there is no single motorcycle movie that defines the genre.   

The movies they listed include, of course, Easy Rider, The Wild One, The World's Fastest Indian, Electra Ride in Blue, Girl on a Motorcycle, Viva Knievel, On Any Sunday, and finally, The Great Escape. 

Describing Easy Rider, the article mentioned "Although The Wild One brought motorcycles to the suburban masses it was Easy Rider that captured the essence of the open road - and all the 'stuff' around that." 

I cannot state which movie is the best motorcycle movie of all time for the simple reason that of all these movies listed, I have only seen The Great Escape.  For anyone who has not seen that movie, it is the one in which the great Steve McQueen escapes from a German POW camp and tries to ride his way to freedom.  He does so by trying to jump over Germany Army barricades blocking his entry into neutral Switzerland.  

That scene is probably the best moment of that great movie, and even though I have not seen the other movies, I would have a hard time believing any movie can top Steve McQueen riding his way to freedom. 

My second place would belong to the Marlon Brando movie The Wild One.  I have seen parts of that movie and I know enough of that movie to know the Brando in that movie was the great Brando, not the old and bored Brando we see in other movies. 

So you tell me, what is the greatest motorcycle movie of all time? 


Is the NFL the Most Dangerous Job in the World?

Unless you have been on Mars, or hate sports, you must know that the NFL players and the NFL owners were negotiating a new collective bargaining agreement (CBA). When the previous collective bargaining agreement expired, the NFL owners locked out the players. But the news today is that it looks the players and owners have agreed to a new CBA and that there will be football this season.

gb packers.JPG

I listen to sports radio all the time, and I heard many fans who were upset at players. These fans called the players greedy for wanting even more millions for playing a game. While I certainly understand the sentiment in today's poor economy, I do not think the players are greedy and if they do accept the proposed CBA, then they compromised too much.

The value of the NFL, about $10 billion dollars a year, is the one in a million athletes who play the game. The players are what make the game interesting and fun to watch, not the owners. I don't know why the owners of these teams should reap extraordinary financial benefit when it is the players that make the NFL profitable, not the owners.

Also, the players are taking extremely high health toll to play the game. The average career of 3 years in the NFL costs a few decades in life expectancy. While being a professional athlete certainly is glamorous, that makes the NFL almost, if not more so, as dangerous as other tough jobs such as coal mining or deep water fishing. See "NFL is killing its players, and league doesn't care" by Gregg Doyel

Yet despite the risk to the players, the NFL may have covered up those health risks, in particular the risk of concussions "NFL Sued for Allegedly Concealing Brain Injury Risks":

Seventy-five former professional football players are suing the NFL, claiming it intentionally concealed the harmful effects of game-related concussions for 90 years. According to the lawsuit, filed today in L.A. County Superior Court and obtained by TMZ, the players and their wives claim, "The NFL knew as early as the 1920's of the harmful effects on a player's brain of concussions; however, until June of 2010 they concealed these facts from coaches, trainers, players and the public."

Let's hope that the NFL was not quite this cynical. 

Arizona Fourth and California 42nd for Motorcycle Riding

When it comes to riding motorcycles, one of the things to be considered is the climate of the state in which you live. If you have a lot of rain, snow, and slick roads, maybe riding a motorcycle is not such a good idea.

It would seem by those considerations that California would be a great place to ride motorcycles. Beautiful weather, scenic routes, and a lot of empty road, at least inland, would make California the seemingly ideal place to ride a motorcycles. But that is not the case. In a story in the Silicon Valley Mercury News by Gary Richards called "California's rought roads tough on motorcycles":

The poor condition of California's roads is one reason why the state ranks as one of the worst in the nation for motorcyclists -- 42nd -- according to a survey released recently by Progressive Insurance. That's despite the Golden State's great, almost always sunny, weather and many scenic places to ride, like Big Sur, the wine country and Yosemite National Park.

Interestingly enough, Arizona ranks quite well- 4th- while even snow plagued states rank ahead of the golden state. "Florida ranks as the best state for motorcycles, followed by Georgia, Arizona, South Carolina and Kansas. But California can't even beat out snow-plagued places like Iowa (10), Nebraska (14) or Ohio (19)." 

On the all important point of road conditions, California ranks even worse at 45.  That is certainly bad news for California's staggering 1.2 million motorcyclists.    The fact that California has such difficult road conditions might be one of the reasons that it is legal for motorcyclists in California to split lanes, while no other state in the United States allows it.  

If you decide to go drive through the vast California roadways, be sure to be on the look-out for dangerous road conditions that make motorcycle riding in California especially dangerous. 

PTSD and Arizona's Veterans

Please see my post on www.prisondemocracy.com regarding what I think is a great shame: our government does not seem to care about veterans suffering from Post Traumatic Stress Disorder (PTSD) who have a difficult time adjusting back to civilian life.

My point is not that veterans with PTSD who break the law should get a free pass, just that if you break the law because you suffering from PTSD from combat, you should not be treated like an ordinary criminal. And just maybe, the government ought to give you some consideration for the fact you volunteered for duty and the government sent you into a combat zone without the necessary resources to fully integrate back into civilian life.

Underinsured and Uninsured Insurance: Why you need it.

Before I started doing personal injury and accident cases, and even after I took insurance law in law school, I had absolutely no idea how important underinsured (UIM) and underinsured (UM) insurance were. Now I know.

UIM and UM are called first party insurance. UIM pays you if another at fault driver hurts you but his insurance does not fully cover your loss. UM protects you if the adverse, at-fault driver has no insurance, of if you cannot identify who is the at-fault (hit and run) driver. That is contrasted with third party or liability insurance. Liability insurance is insurance in which you pay insurance premiums to your insurance company, and in the event you are responsible for hurting someone, your insurance company pays the person who you hurt. In Arizona, state law requires you to carry liability insurance in the minimum amount of $15,000/$30,000.

If you have that minimum state policy, which some insurance agencies oddly call "full coverage", that means the $15,000 is the maximum that the insurance carrier will pay to any single injured person, and the $30,000 is the maximum the liability policy will pay out to all injured parties for any single accident, regardless of the number of people injured or extent of injuries.

Of course, even though that is the minimum, you get can get more liability coverage, usually up to $300,000 with your carrier and up to $1,000,000 with umbrella coverage. State law requires insurance carriers to offer first party insurance up to the limit of your liability coverage.

With that in mind, you should definitely buy the maximum amount of first party insurance available, and even consider buying higher liability limits just to have access to greater first party coverage. First party coverage is not required by law, and even if you have "full coverage", you don't necessarily have any first party coverage. Unlike liability insurance, first party coverage protects you and your family in the case of an accident, and it is much cheaper- usually only a few dollars a month- than liability insurance.

As far as I am concerned, buying first party insurance is an easy decision.


Phoenix has Two of America's Most Dangerous Intersections

If you drive a car or motorcycle in the metro Phoenix area, one of the best ways to stay safe is to avoid dangerous intersections.  The same logic that would apply to someone avoid walking through a dangerous neighborhood late at night would apply to avoid driving a car and riding a motorcycle through a dangerous intersection.  Why take an unnecessary risk? 

With that in mind, according to Judy Hedding, Phoenix has two of the most dangerous intersections in all of the United States.  Following is the top ten list of America's most dangerous intersections

Here is the list of the nation's most dangerous intersections, as compiled by State Farm Insurance:

1. Pembroke Pines, FL: Flamingo Road and Pines Boulevard

2. Philadelphia, PA: Red Lion Road and Roosevelt Boulevard

3. Philadelphia, PA: Grant Avenue and Roosevelt Boulevard

4. Phoenix, AZ: 7th Street and Bell Road

5. Tulsa, OK: 51st Street and Memorial Drive

6. Tulsa, OK: 71st Street and Memorial Drive

7. Phoenix, AZ: 19th Avenue and Northern Avenue

8. Plano, TX: State Highway 121 and Preston Road

9. Metairie, LA: Clearwater Parkway and Veterans Memorial Boulevard

10. Sacramento, CA: Fair Oaks Boulevard and Howe Avenue

According to ABC news, all the listed intersections have appropriate safety and design features, but 

The main problem there, according to State Farm safety engineer John Nepomuceno, was traffic volume.... Nepomuceno said intersections on the top 10 list all met appropriate design standards and were regulated by traffic lights. He said traffic volume and driver error were two important factors in crashes.

The next time you driving in the Phoenix area, it might make a little bit of sense to avoid these two intersections.  The reason I make this point is not to claim that if you drive through these intersection that you will get into an accident, just that there is enough evidence to prove that avoiding these intersections is worth the little bit of time and hassle.   Remember, it only takes one accident, just like one IRS audit, to make up for the many thousands of times one can drive through these intersections without problem.