Boston Personal Injury Lawyer Blog

My interest kindled by his blog, I've been reading Tom Vanderbilt's book "Traffic: Why We Drive The Way We Do (And What It Says About Us." It's a fascinating quasi-anthropological study of the role of the automobile in our everyday lives. The book touches on a number of subjects, from road rage to city planning. But of greatest interest to most personal injury lawyers is his analysis of some of the surprising risk factors that play into many car accidents. Passengers would be wise to heed Vanderbilt's advice: "Don't drive in a pick-up truck with a beer-drinking divorced doctor on Super Bowl Sunday."

Why shun doctors? They seem like a responsible lot; why are they at a greater risk of being involved in a car accident? The researchers don't know for sure. Some possible theories include: 75 percent of doctors are male (and males are more likely to be involved in car accidents than women); doctors spend a lot of time driving in urban areas, dispensing advice via cell phone; and, last but not least, doctors may be more fatigued than the average driver (a New England Journal of Medicine study showed that interns working an extended shift are ten percent more likely to be involved in a car accident on their way home).

The Super Bowl Sunday risk factor is a famous result that was actually discovered by a doctor - Stanford researcher Donald A. Redelmeier - who was profiled in The New York Times last week for his quirky but illuminating public health research. Dr. Redelmeier's findings that car accident fatalities spike by forty-one percent on Super Bowl Sunday prompted the National Highway Traffic Safety Administration to launch a program aimed at getting fans to stay off the road. Before the game on Super Bowl Sunday, the roads are as safe as any other time. During the game, there are actually fewer car accidents than normal because so many people are off the road, watching the game. But after the game (twenty times more beer is consumed on Super Bowl Sunday than a typical Sunday), the number of car accidents goes through the roof. Fans of the losing team - who perhaps were drowning their sorrows in alcohol (or who perhaps left the party right after the game, rather than staying to celebrate and thereby sobering up) - are much more likely to be involved in a Super Bowl Sunday car accident than fans of the winning team.

Divorce or a recent separation is linked with a fourfold increase in car crashes. The reasons for this are murky. But the research is consistent with other research showing that the never-married are much more likely to be in a car accident than the married-with-children. Having children makes you more likely to buckle up and more likely to drive cautiously (especially while the children are in the car).

Pickup trucks are another surprising car accident risk factor. More pickup truck drivers die per 100 million registered vehicles than any other style of car. Given pickup trucks' size, you'd think that pickup truck drivers would be among the least likely to die in a car accident. But research has shown that a car's size is of almost no importance when the car or truck collides with a fixed barrier like a tree or a bridge support. Some of the risk of pickup trucks may be connected to the fact that far more men than women drive pickups and men are much more likely to be involved in a car accident. Men also are much less likely to wear a seatbelt. Beyond those possible contributing factors, statisticians have a hard time sussing out why pickups are so dangerous.

So, whatever the reasons, don't drive with a divorced doctor in a pick-up truck on Super Bowl Sunday.

Lawmakers in Indiana are puzzled by a new study showing that students who take driver's ed classes are four times more likely to be involved in a car accident than those who don't take the classes and instead merely take the license exam.

The study has led some lawmakers to propose that driver's ed classes be overhauled. The curriculum has not been changed in 30 years.

The study seems counterintuitive but it's easy to think of a few reasons why it might be true:

1.) The students who can afford to pay for driver's ed classes are wealthier on average than the students who don't take the classes and therefore are likelier to own their own car, leading them to rack up more mileage and causing them to be involved in more car accidents. The students who don't take driver's ed are poorer on average and therefore have less access to cars, causing them to be involved in fewer car accidents.

2.) The students who can't afford to take driver's ed worry that they are lesser-prepared than their driver's ed counterparts and overcompensate by logging more hours practicing with family members or other (free) driving instructors. (This could easily be the case in a state like Massachusetts where driver's ed only requires twelve hours of behind-the-wheel time. In Massachusetts, however, driver's ed classes are mandatory for all drivers under eighteen.).

3.) Driver's ed programs self-select for bad drivers: the students who enroll in driver's ed are students who realize they need it. Driver's ed coaches them up but doesn't bring them to the same level as peers with better driving abilities (the least plausible explanation).

Today the BBC commemorated the 114th anniversary of Great Britain's first fatal car crash with a feature story on the accident that claimed the life of Bridget Driscoll.

The story, retold through the conflicting testimony offered at the inquest into Driscoll's death, is fascinating. Apparently, the car, driven by Arthur Edsall, had a top speed of four miles an hour, due to a governor that limited the car's top speed.

How did Bridget Driscoll fail to get out of the way of a car traveling at the snail's pace of four miles an hour? According to one witness at the inquest, Driscoll, "bewildered" by the strange sight of an automobile, froze in place in the roadway. Other testimony seemed to suggest that Edsall, who had only a few weeks' experience behind the wheel, did not how to steer and may have inadvertently steered into Driscoll.

Of course, new technologies continue to cause accidents. This week brought news that Dr. Frank Ryan, a famed Hollywood plastic surgeon, drove off a cliff in Malibu while trying to upload a picture of his dog to Twitter. Nowadays it seems we're not so bewildered by the operation of a car; we're more likely to get in trouble by thinking we can multitask while doing it.

In January, on the heels of the terrifying tale of a state trooper and his family killed in a crash caused by their out-of-control Lexus, more reports of sudden uncontrolled acceleration problems with Toyotas began pouring in. Of course, skeptics were quick to point out that reports of uncontrolled acceleration problems with Toyotas resembled past claims of acceleration problems with various makes and models that had come to naught, especially the Audi acceleration flap of the early 1980s.

Since no one could point to any mechanism in Toyota's (computerized) accelerators that would cause uncontrolled acceleration, these skeptics insisted that the problem must be driver error. At the time, I cautioned that we should keep an open mind - that the block box computer programs that regulate Toyotas' acceleration and braking could conceivably have a bug, the same sort of bug that caused the Great Northeast blackout of 2003.

This week, the acceleration skeptics got welcome news as the National Highway Traffic Safety Administration announced its preliminary findings: in all of the Toyota acceleration cases investigated thus far, driver error has been found to be the cause of the braking failures. Yes, pedal misapplication - hitting the accelerator instead of the brake - is the leading culprit at this point in time.

Meanwhile this week came another story, a story about malfunctioning black boxes. Wall Street traders and government regulators are still probing the May 6 "flash crash" in which the Dow Jones inexplicably plunged nearly 1,000 points within a couple hours. Of course the bulk of stock trading is done by computers running proprietary algorithms that Wall Street banks have invested many more billions in than Toyota has spent engineering the computer systems in its late model cars. Investigators probing these trades are finding the black box computer algorithms used by traders produced bizarre "crop circle" graphs over the course of the flash crash.

It seems one might draw some parallels between the 2010 "flash crash" and an older stock market mystery that occurred around the same time as the 1980s Audi debacle: the Black Monday 1987 stock market crash that some chalk up to computer trading.

My position on the Toyota uncontrolled acceleration phenomenon has always been the same: when people complain that their cars (increasingly controlled by complex computer systems) are going haywire, we should take them seriously and investigate thoroughly because even the best-engineered systems can behave unpredictably. If investigation reveals that root of the problem is not a defectively designed product, but rather human-fueled hysteria, then so much the better for society.

I just wish the same people who are so quick to point to human error in the driver's seat would be as quick to recognize human error in some of Wall Street's follies.

In one of his "Markets in Everything" blog posts, Tyler Cowen introduces us to the (perhaps apocryphal) "Ticket Free" insurance - an insurance policy that drivers can obtain in addition to their primary liability policy that will pay for any tickets they get and the insurance surcharges associated with these tickets.

Ticket Free offers three different policies. The "Mini" exclusively pays for speeding tickets.The "Classic" covers other moving violations, such as illegal u-turns and running red lights and the "Enthusiast" covers everything from excessive window tint to having an excessively loud car stereo.

Although the fact that Ticket Free's website no longer seems to be operational and it apparently never was registered with the California insurance commissioner suggests that it was pretty fly-by-night, this sort of insurance policy apparently is available in some Scandanavian countries, if blogging commenters are to be believed.

Needless to say, this sort of "ticket insurance" would be a bad idea for American roadways. As the comments to this blog post by law professor David Bernstein (himself recently ticketed) suggest, there are myriad ways that reckless drivers can get out of tickets - even citations issued on the basis of that gold standard of speed detection "lidar."

The underenforcement of our traffic safety laws causes more numerous and more serious car accidents to occur. Let's hope that just forcing traffic scofflaws to take time out of their day to show up to traffic court has some deterrent effect on them.

About ten 2010 car models come equipped with "lane departure correction" - a feature that automatically corrects the steering of drivers who veer outside their lane.

It seems like the next safety breakthrough, the next invention that, like the seat belt or the airbag, will prevent a million car accident deaths. But will it? Economist Alex Tabarrok is not convinced. He sees the "Peltzman effect" at work in NHTSA testing of the feature.

The "Peltzman effect" is a social science term used to describe the new risks that drivers take once they obtain new safety features - risks that offset, in whole or in part, the increase in safety provided by the new safety feature. Readers of this blog have previously seen the Peltzman effect at work in our posts about football helmets. Football helmets offer protection against head injuries, which encourages players to play more aggressively, ultimately leading to more head injuries.

One case study in the Peltzman effect is the twenty year old woman in the NHTSA study of lane departure technology who told NHTSA investigators that she would love to have the lane departure feature in her own car because then she could drive home after a night of drinking, instead of having to stay at a friend's house. The new safety gains offered by the lane departure feature will be, at least partially, offset by the new risks this young woman will take in attempting to drive home while intoxicated.

Fortunately, the pessimistic tale of the Peltzman effect does not appear to be the whole story. The more careful statistical analysis carried out in the article that Tabarrok links to suggests that the safety gains from lane correction will not be canceled out by new risks and that, in fact, auto lane correction will prove a net safety benefit for drivers.

As a side note, I hope to have the opportunity in the next few weeks to blog about a book that Tabarrok co-authored a few years ago: Judge and Jury: American Tort Law On Trial. The book bears on a lot of what I've blogged about one thing. Its section on juries and how jury composition determines the size of awards provides some great insights that can help to explain why Massachusetts jury verdicts vary so widely by county. Also, contra the suggestion of some tort reform blogs (that have accused me of misrepresenting economists' support for our tort system), Tabarrok is another mainstream market economist who gives our tort system a largely clean bill of health.

Before leaving for the weekend, here are some topics that I wish I had time to blog about the past week or two:

• Should Medicare and Medicaid reimburse doctors when they commit medical errors classified as "never events"? Is the categorization of "never events" fair?

• Would having your doctor warn you about the dangers of texting while driving reduce the number of accidents caused by texting?

• Massachusetts passes liquor liability law requiring bars to carry a minimum insurance policy of $500,000 for injuries caused by overserved patrons.

• Fireworks safety.

Be careful on the roads and with fireworks and have a happy and safe Fourth of July.

With this week's approval of a bill in the Massachusetts House that would ban texting while driving, Massachusetts is poised to become the twenty-ninth state to impose such a ban.

Why it took Massachusetts so long to get a texting ban passed is almost beyond comprehension. The cell phone companies are not lobbying against these laws, nor are cell phone users banding together to oppose them. Practically no other safety measure out there can do so much to reduce car accidents as a texting ban. Just another example of the inertia on Beacon Hill, I guess.

Continue reading "Massachusetts House Approves Texting While Driving Ban" »

Massachusetts Lawyers Weekly reports in its June 14, 2010 issue that personal injury plaintiffs lost in the vast majority of cases tried in Massachusetts courts in 2009. Under Mass Lawyers Weekly's rather generous methodology, a "win" for a plaintiff was defined as a case in which the plaintiff received any money at all, even if it was only one dollar, and that dollar was less than what the defendants had previously offered to settle the case. Lawyers Weekly defined a "loss" as a case in which the jury awarded zilch to the plaintiff.

Using these definitions of a "win" and a "loss," Massachusetts Lawyers Weekly broke the data down by county and found the following percentages of plaintiff's wins in Massachusetts state courts in 2009:

• Suffolk County (Boston, Chelsea, Revere and Winthrop) - Plaintiffs won in twenty-five percent of the trials.

• Norfolk County - Plaintiffs won in fourteen percent of personal injury trials.

• Middlesex County - Plaintiffs won only twenty-seven percent of personal injury trials.

• Bristol County - Personal injury plaintiffs won only thirty-two percent of trials.

• Worcester County - Plaintiffs won twenty-three percent of trials.

• Essex County - Plaintiffs won thirty-six percent of jury verdicts.

• Cape Cod and Islands - Plaintiffs won eleven percent of jury trials.

• Hampden, Berkshire, Franklin, and Hampshire counties - the percentages of jury verdicts for plaintiffs in these counties ranged from twenty-nine to thirty-three percent.

The data are even worse for Massachusetts personal injury plaintiffs if you revise the definitions of a "win" and a "loss" to fit what most lawyers mean by those terms. Superior Court Judge Brady has kept a personal log of all the negligence trials he's presided over since being appointed to the bench in 1993. Judge Brady scores a case a "win" for the plaintiff only if the amount the jury awards the plaintiff is greater than the last settlement offer made by the defense. In the 151 negligence trials that Judge Brady has heard in his nearly twenty years on the bench, only 16 have resulted in wins for the plaintiff.

The odds of prevailing at trial may seem pretty dismal for Massachusetts personal injury plaintiffs but there are a few things that should be said about this data. First, there's an obvious selection bias at work in this study. About ninety-eight percent of cases are resolved by either pre-trial settlement or some form of pre-trial motion to dismiss.

The game theorists tell us that the two percent of cases that make it to trial are cases where at least one party is overestimating the strength of its hand. If you assume a rational defendant in a case, once the defendant is convinced of his legal liability and the dollar value of damages that a jury would force him to pay, the defendant will settle the case, simply to avoid the time and expense he would have to pay to defend the case through trial. The cases that don't settle tend to be troubled cases where there is vast disagreement about either the defendant's legal liability or the amount of damages. So the vast majority of personal injury plaintiffs in Massachusetts fare better than the trial data would suggest because the trial data represent the outlier cases that make it to trial.

Nevertheless, I don't think Massachusetts personal injury lawyers should be happy with those numbers. I think they reflect a certain level of complacency by some Massachusetts personal injury lawyers about how cases should be investigated and tried to a jury. I've previously blogged about how Massachusetts' largest medical malpractice verdict of 2009 - a $15 million case - was turned down by a number of Massachusetts medical malpractice law firms before being taken by a California attorney who was much more aggressive than most Massachusetts medical malpractice attorneys in terms of the number of depositions that he took and the theories that he pursued.

I sensed a lot of defeatism in the Massachusetts Lawyers Weekly article about trying cases in certain counties, especially Norfolk County. I've lived the better part of my life in Norfolk County and I have no compunction about trying a case to a Norfolk County jury. You simply need to know who your jurors are and frame the issue properly for them.

Continue reading "Study Shows That Massachusetts Personal Injury Plaintiffs Are Losing Vast Majority Of Trials: Is That A Problem, And What's The Solution?" »

Last year, over Memorial Day Weekend, twenty-seven people died in All Terrain Vehicle (ATV) accidents, including two riders under the age of sixteen.

This year, the Consumer Product Safety Commission (CPSC) is issuing a warning to ATV riders to be mindful of the dangers of off-roading.

It is easy to understand why Memorial Day weekend might be especially dangerous to ATV riders. Since it's the unofficial beginning of the summer season, you probably have a greater number of riders who have just "come of age," and are riding an ATV for the first time. Couple that with the "rust" that more experienced drivers accumulate over the winter months when they are not riding, and throw in some alcohol, and you have a perfect storm for ATV accidents.

If you own an ATV, you should know that, in April 2009, CPSC began mandating that ATV manufacturers offer free hands-on training for ATV purchasers through dealerships. So you can go to your dealer for a free course on how to operate your ATV safely.

Continue reading "Consumer Product Safety Commission Warns Of Memorial Day Weekend Dangers To ATV Riders" »

That's the title of an excellent online symposium running in The New York Times' Room For Debate page.

And the answer of all the esteemed thinkers assembled by The Times is: yes, the carnage on America's roadways - the 37,000 fatalities a year caused by car accidents - is excessive and reducible.

The different writers' explanations for why we have so many traffic deaths are fascinating. Tom Vanderbilt, the author of "Traffic: Why We Drive The Way We Do (And What It Says About Us)," points to Canada and a 50 percent decline that it experienced in car accident fatalities between 1979 and 2004. During the same period, the number of American traffic deaths declined by a much smaller percentage. If Canada can do it, why can't we? Vanderbilt urges us to take an epidemiological approach to car accidents. Rather than seeing them as isolated tragedies, we need to address them as a public health crisis, emphasizing the "three Es" - education, enforcement and engineering.

Adrian K. Lund, from the Insurance Institute of Highway Safety, thinks the answer lies in only one of the "Es" - enforcement. He believes the problem is speeding and we'll have fewer car crashes only when we begin to meaningfully enforce our speeding laws.

Dan Burden, from the Walkable and Livable Communities Institute, thinks the problem is too many driver-miles. We'd have fewer car accidents, he says, if we redesigned our communities to make them more pedestrian and mass transit-friendly.

When the US leads the Western world in the number of people killed each year in car crashes, and car accidents are the leading cause of deaths for Americans aged 1-34 years old, something needs to be done. And we need to take a look at all the different tacks available to us.

Continue reading "Do We Tolerate Too Many Traffic Deaths? " »

A new study by the Insurance Institute For Highway Safety, to be published this year in the peer-reviewed journal The Annals of Epidemiology, suggests that the latest model of airbags, available in some cars since 2004 and mandated since 2008, may be reducing crash survivability for belted drivers.

The researchers found that belted drivers had a twenty-one percent greater chance of dying in cars equipped with the newer airbags, compared to belted drivers in cars equipped with the older model airbag. The auto accident fatality statistics were unchanged for drivers who weren't wearing seat belts.

The researchers did not offer a definitive explanation for their findings. Instead, they conclude that there could be a multitude of explanations for their results, including the possibility that the newer airbag systems, which take into account a number of factors before determining whether to deploy, may not be responding as anticipated in real-life car crashes.

While researchers sort out whether the new airbag design is suboptimal in terms of saving lives, drivers should continue to wear seatbelts and should not deactivate their airbags. These tentative findings suggest only that the newer airbag design may be inferior to the older one, not that drivers and passengers should go unbelted or without airbags. The perennial wisdom that airbags and seat belts save lives in accidents continues to hold true.

Continue reading "Study Says Newer Airbags May Be Inferior To Older Model " »

Today, as you probably know, was "No Phone Zone" pledge day, a day when Oprah Winfrey dedicated her show to the dangers of using a cell phone while driving and urged Americans to pledge not to use their cell phones in their cars.

The day prior to Oprah's "No Phone Zone" day, Michigan became the twenty-fourth state to ban texting while driving.

In 2008, nearly 6,000 Americans died as a result of distracted driving and more than 500,000 were injured in accidents caused by distracted driving. Studies show that using a cell phone while driving impairs your driving as much as having a few drinks and increases your risk of causing a car accident by more than 500 percent.

Will more than half the states adopting texting bans before Massachusetts gets around to it?

For a vivid illustration of how texting while driving can cause an accident, watch this illuminating (slight profanely) video of Meredith Viera from the Today Show in a driving simulator:

Continue reading "Massachusetts Lags While Movement To Curb Texting While Driving Gains Steam" »

For once, the tort reform blog Overlawyered.com admits that the costs of healthcare might be driven by doctors' incentives, rather than greedy medical malpractice lawyers, but, even in this moment of rare insight, Overlawyered can't resist a slap at the plaintiff's bar.

In this post, Walter Olson entertains the idea that some orthopedic surgeons might recommend spinal fusion surgeries whose cost approaches $100,000 because the procedures are so lucrative. However, Olson also claims that personal injury lawyers are in collusion with this phenomenon, by referring their clients to surgery-happy doctors.

I, for one, always let the real medical professionals recommend specialists like orthopedic surgeons. And most lawyers are no different.

Scoring this one is difficult. I'd award Olson a point for taking off the ideological blinders and acknowledging, even indirectly, that doctors are not always blameless. However, I have to deduct half a point for the ending of the blog post, with Olson's attribution of sinister motives to personal injury lawyers.

That means Olson finishes with half a point. The Manhattan Institute is coming up!

PS - Can anyone send me the Journal of the American Medical Association article that Olson references? I was unable to find it.

Continue reading "Back Surgeries Overprescribed? " »

Last week, big business shill Theodore H. Frank wrote an op-ed drawing on data from a Los Angeles Times article reviewing the fifty-six fatalities attributed to sudden uncontrolled acceleration problems with Toyotas. Frank noted that, in about half of the car crashes, the driver's age could be ascertained from the LAT's compilation and the ages of the drivers skewed to the elderly.

The next day, blogger Megan McArdle tracked down the ages of "all but a couple" of the drivers involved in the Toyota crashes and revealed that the "overwhelming majority" were over fifty-five years old.

A lot of people have hypothesized that the sudden uncontrolled acceleration accidents involving Toyota might be caused by a computer or electronic bug in the cars' throttle. Since there's no reason to believe that Toyotas with a computer bugs would discriminate against older drivers, Frank and a host of other bloggers* trumpeted the results as proof that there is no electronic problem with Toyota's computerized engines and that, in fact, the blame lay with older drivers' driving skills (or lack thereof). (Question(s): McArdle used a cutoff age of 55 and up. Are 55 year olds, in today's world, frail or senescent? Most research does not show a significant decline in driving ability until a couple of decades after 55 and I know many people in their sixties who are in far better physical shape than I am. What would her findings have been if she included only drivers 70 and up?).

Ted Frank and a bunch of his colleagues from the (shallow end of the) think tank business used the findings to question the honesty of drivers who reported uncontrolled acceleration problems, likening them to frauds like "balloon boy."

So what should we conclude? Should we conclude that the whole "Toyota panic" is merely a media-driven phenomenon about routine errors committed by all elderly drivers?

I don't think so. As I blogged over a month ago, in 2009 forty-one percent of complaints of sudden uncontrolled acceleration involved Toyotas, while Toyota only held sixteen percent market share - a fact that was lost on a lot of people. Since the time I posted that blog, NPR's Robert Benincasa did something that the government does not do - track reports of sudden uncontrolled acceleration by make and model - and found that, since 2002, Toyota has seen a troubling rise in complaints of sudden uncontrolled acceleration. The problem doesn't seem to be old people and driving; the problem seems, if anything, to be old people and Toyotas specifically.

In addition, the "older driving theory" doesn't account for the most spectacular Toyota crash of all - the (physically fit) California state trooper whose recorded conversation with a 911 operator details his efforts to get his Lexus to brake.

Ultimately, I think we - whether as consumers or jurors or simply concerned citizens - need to come to grips with the fact that there may be a problem with Toyotas that we may never directly explain. A lot of people have theorized that Toyota's problems may lie with a computer bug inside its engines. (Competing explanations - floor mats, driver error, etc. - don't seem to account for the disproportionate number of Toyotas involved in these crashes). If it's the case that there's a computer bug that plagues Toyotas, we may never find out precisely what it is and why, in some cases, it caused crashes. Toyota's engines may forever remain to us a bit of a "black box" - a computerized system that we can't see inside or fully understand.

People tend to assume that, if there's a computer programming error, we can simply pore over the code and figure out if there's an error. After all, computer programming is just logic and logic is supposed to be completely transparent. But, as science fiction writers like Isaac Asimov have shown us, you can start with a few logical principles that dictate the behavior of computers or robots and wind up with some completely unintended consequences.

We are all familiar with real life examples of this. One dramatic, and fairly recent example, was the Great Northeast Blackout of 2003 (which was caused in part by computers behaving in unexpected ways). Giant companies like Microsoft come out with products like Windows Vista that are so ridden with programming problems that they become unsalable.

Sometimes the bugs are never figured out. When a program that you're running crashes, often the product's designer has no reason why it crashed - that's why, after the program returns to life, it asks you for permission to send a report to the manufacturer for analysis. My friends in computer programming tell me that, very often, software engineers are unable to untangle the reasons for these errors.

We may never get to the bottom of Toyota's uncontrolled acceleration car crashes. But that does not mean the problem is not real. Or that Toyota should not be held accountable for its failure to investigate and address these issues.