Instead of following its mission statement, which directs it to protect the public health, the FDA frequently puts the financial interests of drug companies ahead of the health of American citizens. As a result of that betrayal, reports of drugs that make huge profits even though they kill people and ruin lives are ridiculously common. They're also painful to watch and read.

The FDA is supposed to regulate medical procedures such as Lasik surgery and hip replacements, but Lasik has caused so many vision problems and even suicides that its victims have formed a support group. Zimmer replacement hips are supposed to improve the quality of life for the people who receive them, but they have caused excruciating pain for many patients and have often required their own replacement.

If the employees of the FDA acted in the spirit of true public servants, they would assure us that foods we eat, the drugs we take, and the medical procedures we undergo will enhance our lives and not harm us. But too often FDA employees act in the best interests of the drug companies that fund their positions.

One major part of the problem with the FDA is its source of funding. At least one-quarter of the FDA's budget comes from fees paid by drug manufacturers, and those payments essentially guarantee that the best interests of American consumers are not the primary concern of the FDA.

Because pharmaceutical companies fund the FDA, cases like the one involving Bayer and its drug Trasylol show just how the FDA gives preferential treatment to its funding source.

One other huge danger to the American public which the FDA allows to continue is that drug companies are essentially free to pay the researchers of their choice huge fees for returning favorable reviews. The FDA is certainly aware of this practice, but doesn't stop it.

The FDA is has the responsibility of monitoring drug companies' advertising, but drug ads are everywhere, working hard to create the belief that relief from any problem is just a pill away. In fact, drug companies now spend twice as much on advertising as they do on research.

And don't expect the FDA to tell you that doctors themselves won't take many of the drugs that they regularly prescribe.

And it's not just drugs and surgeries that are harming and even killing people. Recent events make it extremely difficult to have confidence in the safety of our food supply, which the FDA is supposed to ensure. This summer, tomato farmers lost millions of dollars in revenue as the FDA inaccurately linked tomatoes to an outbreak of salmonella poisoning. The outbreak went on for months before the FDA identified peppers as the source of the bacteria, and because of that mistake, tomato farmers' losses may reach half a billion dollars.

The FDA's failures have been so damaging to public health that they've actually brought Democrats and Republicans together in an election year to condemn the agency and demand its complete overhaul.

No one who knows anything about the FDA has any confidence in it, and a group of concerned leaders has come together to form the Alliance for a Stronger FDA, and perhaps their efforts will eventually bring real reform to this faltering agency.

But we don't have time to wait. Every day, more Americans become victims of the drug companies and their willing accomplices in the FDA. Every day, we all face the dangers of life-destroying prescription drugs. Every day, we all face a risk of food-borne illness. Every day, we deserve better protection from the FDA.

Onward.

Richard Alexander

A report of the death of a child appeared in the Mercury News on June 3, 2008 "San Jose day care center, where boy died last month, is shut down." What makes this article different is not that the news occurred, but that it was covered.

The death of a child is unbearable. But the media rarely covers the leading cause of death among children: severe personal injuries as a result of someone's negligence.

Too often we are bombarded with the news of a child kidnapping. Statistically kidnapping is a rarity. Overwhelmingly more common is a child's death as a result of an adult being tuned out or not paying attention.

Last month a two year-old was strangled to death in a day care center in San Jose when the cord of a hooded sweatshirt caught in play equipment. The day care operator was grossly understaff: one adult attempting to supervise 14 youngsters.

The real danger for children is not from a stranger lurking near a school. It is more likely that the cause of death is avoidable negligence: not providing a seat belt or car seat, no supervision in a day care center or wading in a wave pool at Great America supervised only by an 8 year old sister who could not swim.

According to the Centers for Disease Control, 3,100 children under the age of three died in 2002. The major causes of death were suffocation due to choking or strangulation, motor vehicle crashes, traumatic brain injuries, drowning and last, death by maltreatment including blunt traumas and violent shaking.

In 2002, 2,300 deaths occurred between the ages of 4-11. The major causes of death were negligent driving, drowning, automobile- pedestrian collisions, and finally homicide in fourth place.

Among adolescents age 12-19, 12,200 died from injuries in 2002. Not surprisingly, motor vehicle accidents were the main reason. In addition, 4.7 million were nonfatally injured in 2003, according to the CDC.

The causes of most personal injuries and wrongful deaths are preventable. A two-ear old should never die of strangulation on a slide. Adults must be present and take all precautions to prevent injuries, even in adolescents, their brains are not fully developed.

A three year-old cannot think for him or herself at all. A 4-11 year-old need constant attention and monitoring. Teenagers are always deemed the most difficult as they appear to be in the transition between child and adult. But we should never forget they are more child than adult.

No one should leave a 2 year-old unattended, when an 11 year-old holds a bat in their hands an adult needs to be present, and putting an SUV in the hands of a 16 year-old boy, whose cognitive skills are not fully developed, is dangerous.

Children of all ages need constant attention and consistent rules. Caregivers cannot simply be their child's best friend. They have a job and a major part of that task is to insure the health, welfare and safety of children.

Regardless of our love and trust for our children, every adult caregiver is responsible for the acts of the children in their care and for the consequences of their actions and failure to act. People make mistakes, but the death of a child due to strangulation from a tie string on a sweatshirt that caught on playground equipment is intolerable.

When adults abdicated their responsibility for children, the consequences have been horrific. Every accidental death of a child is a wrongful death. When a child drowns in a pool or at an amusement park or dies on a playground, it is almost always the result of an adult not paying attention.

Accidents can be prevented and each of us must do our part. For in the final analysis, the real danger is not the stranger, but the person whose duty it is to care, feed and protect the child.

Failure, on their part, is not an option.

Onward,

Richard Alexander

Sunday, June 15th is Father's Day, one of those Hallmark holidays Americans love to celebrate. The Satterstrom, Harding and Batra families of San Jose won't be celebrating this year - two families have each lost a son and one family, their father and mother, in a horrendous vehicle accident almost a year ago.

Tragic losses, over the ages, occur due to force majeure, an act of nature, war or disease. The losses of the Satterstrom, Harding and Batra families were the force of a homicidal, reckless, teenaged driver, 19-year-old Erik Satterstrom, who in less time than it takes to brush your teeth, killed himself, his passenger and best friend, 18-year-old Maxwell Harding, and two pedestrians - Inder Paul Batra, 65, and Uma Batra, 57, who literally never knew what hit them. Inder Batra was a renowned physicist and his wife, Uma, a dietician. The parents of two stunning daughters who were graduates of UC Berkeley, the Harvard Law School and the Harvard School of Business, the Batras had just learned that they were to be grandparents.

The evening of the accident, July 23, 2007, began pleasantly enough. Erik Satterstrom had dined with the Harding family and his buddy Maxwell at the Harding residence in San Jose' Almaden Valley. The two planned to be roommates that fall at California Polytechnical State University (Cal Poly) in San Luis Obispo, where Erik was already a student.

The friends left the Harding residence and got into Erik's Nissan 350Z and headed westbound on Graystone Lane. It was about 8:20 P.M. The legal speed limit on the two lane road was 35 mph. As Erik drove he accelerated dangerously. Police reports say Erik's vehicle reached speeds of 78 mph.

The vehicle skidded across both lanes and careened into Inder and Uma Batra, who were enjoying an evening stroll. Eyewitnesses recalled seeing the Nissan moving at a high rate of speed when it veered into the eastbound lane, then back across the road and onto the shoulder where the Batras were walking. The Nissan continued out of control until it struck several trees west of Annie Lane, exploding in a fireball and killing the two teenage boys on impact. All four victims were pronounced dead at the scene.

Erik Satterstrom's reckless driving has forever changed the lives of Puja and Mala Batra, clients of Alexander Hawes, LLP, and the daughters of Inder and Uma Batra; the parents of Maxwell, Jo and Martin Harding, and Erik' parents, Joy and Norman Satterstrom.

As the three families adjust to their loss and approach the first anniversary of the accident, there is much to consider and remedies that should be strengthened in order to prevent these tragedies in the future.

Teenage driving is a complex issue. Some 6,000 teenagers die in vehicle crashes each year, the leading cause of death of 16 to 20-year-olds. Researchers report that two-thirds of the fatalities are male. Temple University researchers found that teen drivers were more apt to engage in reckless driving if a friend was present. They found the risk of a crash doubled with just one passenger.

When Maxwell Harding got into his buddy's Erik car, he became the next proof point in this statistic.

The evening when Erik Satterstrom took out four lives, including his own, was by no means the first reckless driving incident for the 19-year-old. On March 22, 2007, one week after purchasing the 350Z, Satterstrom was cited for speeding. Three weeks later, on April 13, 2007 he was cited for running a red light.

On July 17, 2007, less than a week before the fatal crash, Satterstrom was convicted in Traffic Court of the speeding charge of March 22nd. The conviction apparently didn't slow him down.

On July 25, 2007, two days after the crash, the San Jose Mercury News quoted a friend of Erik's, saying, "he was always taking risks, and he was a fast driver ... who thought he was invincible." Erik's co-workers at Orchard Supply Hardware said he "had a devilish side. And it came out when he got behind the wheel of his 350Z. 'He drove really fast out of our parking lot...' ", according to the newspaper.

Satterstrom did not fit any stereotype of a troubled teenager. He was a straight A student from a Christian high school who was immensely popular and entertaining. He was also, by choice, out of control, and that made him a killer behind the wheel. If he had survived the crash, Satterstrom would have been prosecuted for killing three people.

When it comes to Erik's buddy, Maxwell Harding, personal responsibility comes into play. Since they had such a close relationship, it is highly probable that Maxwell knew Satterstrom was a reckless speeder and had been cited in court. It is also highly probable Maxwell may have been in the car with Erik on other occasions when Erik pushed the limits.

In response to his death, Maxwell's parents created Maxwell's Pledge, and have launched a campaign to have teenagers pledge in their son's name to be safe drivers. Unfortunately, Maxwell's Pledge ignores and glosses over the harsh fact that no teenager should follow Maxwell's lead, let alone take a pledge in his name.

Maxwell Harding voluntarily rode with a driver whom he must have known was an extremely dangerous driver. Alexander Hawes has published a tougher Alexander Pledge, which holds both parents and teens accountable and essentially asks the teenager to take personal responsibility and not get in a vehicle with the Erik's of the world, and to pledge to be a safe driver and publicly admonish reckless drivers.

Everyone must have zero tolerance for dangerous drivers, if our driving culture is to change. Zero tolerance means never riding with anyone who has ever driven dangerously and teenagers must warn everyone they know as soon as they learn someone is a dangerous driver.

The Alexander Pledge - unlike the Maxwell Pledge - addresses parents directly and asks them to take responsibility for their teenage drivers and to hold them accountable. The most effective means is electronic monitoring. For $500, parents can install a GPS system in their child's car. The system will track location and speed, and whether the occupants are wearing seatbelts. This information is relayed back to a responsible adult.

In some GPS systems, parents can set a "geo fence" for the family car and receive a phone call or an email if it travels outside the electronic boundary. Insurance companies are offering discounts for families using technology that sets a car's maximum speed, how far it can travel and a curfew, which if violated, results in a call or email to parents.
Parents who are providing cars to teenagers must install a GPS system to monitor their teenage driver to prevent them from killing themselves and inflicting on their families the pain that Satterstrom inflicted on Mala and Puja Batra, Jo and Martin Harding and his own parents.

Another issue of responsibility and accountability is adequate insurance coverage. Since Erik Satterstrom was over 18 years old, he legally had sole possession of the car. This meant the Satterstrom's were not legally liable for their son's actions while driving the vehicle. To their credit, however, they made sure that Erik had substantial liability coverage as a separate insured under the family Allstate policy. Many families in this position buy a minimum $15,000/$30,000 policy because a teenage adult usually has no assets to protect and is otherwise uncollectible. The key in buying insurance is to buy the biggest policy available/affordable so you can get uninsured motorist and underinsured motorist coverage at the same levels.

Erik Satterstrom's early citations, after getting his hot Nissan 350Z muscle car, cries out for preventive action, at the very least a GPS system so that when he drove at reckless speeds,warning bells would go off and parental action could be taken. Parents need to think about the consequences of un-monitored driving and of indulging teenagers, statistically prone to reckless driving, by allowing them to have speed-prone vehicles. Giving Erik Satterstrom a muscle car turned him into an instrument of death.

This Sunday, the Satterstrom and Harding families and the daughters of the Batras face a painful Father's Day. Sunday is also another important day - it is Cal Poly's graduation weekend. One thing is for certain: Erik Satterstrom and Maxwell Harding will never be among the graduates.

For an excellent article on GPS systems to install in the family car see two articles in the New York Times of November 3, 2007: "Peace of Mind When They Ask to Borrow the Car". featuring CarChip made by Davis Instruments in Hayward, California and "For Teenage Drivers, Ever Present Parents."

Further Reading:
Teenage Drivers
Four Dead In SJ Almaden Valley Car Accident
Talking to Teens About Driving
Teen Depression, A Guide for Parents & Teachers
Teen Brain Blamed for Reckless Driving

Found in the closing costs of all new home purchases and refinances is the great American rip-off: fees for the Title Insurance. It can range from several hundred to several thousand dollars, yet it is an unnecessary and archaic product that should go the way of the dinosaur.

In days past, Title Insurance was necessary to avoid competing property claims. It involved a lengthy search of records of paper records, was time-consuming and offered a value to bona fide purchasers of real property against future actions. However, in the age of technology--the search is simple, the title virtually guaranteed and future title actions are rare as a result. Nobody really needs this service anymore.

Title actions for property are almost nonexistent and most title companies can issue a title report in a matter of minutes, if not seconds.

Forcing individuals to repurchase Title Insurance when refinancing is especially egregious, a title report alone should be sufficient evidence to show no new restrictions, liens or taxes are owed on the property since the initial purchase.

The reason this "insurance" still exists is that mortgage companies routinely require the policy as a condition of financing. But State Government can provide the same service, at a lower cost to consumers and cut-out this predatory industry altogether.

The Title Industry is awash in illegal, unfair and unethical practices. The problem stems from an unholy alliance between lenders, real estate brokers and title agents. Although illegal, the Title Industry offers incentives to these agents who are supposed to work for their clients. The result is that brokers are rewarded for their referrals.

The solution is a state-run Title Insurance Program modeled after Iowa. In that State, Title to land is guaranteed by state government, rendering the need for Title Insurance moot. In fact, it has been illegal to sell Title Insurance in Iowa since 1947. Yet, even there the Title Industry is working hard to remove this consumer protection law that has worked for its citizens for over 60 years.

Iowa consumers are not fleeced by an industry that utilizes kickback schemes and incentives to brokers, collects premiums and rarely pays claims.

Recently, the California Department of Insurance announced new regulations for the Title Industry. However, these new regulations fall far short of actions needed to protect consumers. The regulations were, indeed, a victory for the Title Insurance Industry which continues to lobby the State Legislature and Department of Insurance for less stringent regulations such as licensing and strict conflict of interest penalties.

And the abuses continue. LandAmerica Corporation was recently fined $3.5 million for abuses and ordered to cease and desist their unlawful conduct. LandAmerica was abusing its own rating and underwriting system and overcharging their customers by failing to follow their own rates. LandAmerica isn't an anomaly.

Consumers, who have no knowledge of the underwriting and rate process, are routinely railroaded into buying over-priced Title Insurance recommended by their broker or lender.

But there is an answer: The California Department of Insurance has a website that helps consumers choose the most inexpensive Title Insurance available. An informed consumer can actually insist their broker utilize their choice of Title Company. This information can help save consumers hundreds of dollars every time they refinance or buy a new home.

But because few people know of this service or their rights to choose their own Title Company, most fall victim to the cozy relationship that has developed between their broker and the Title Company.

The real answer lies in putting these pirates out of business completely. It won't happen without public pressure, but the California Legislature should immediately enact the Iowa model for Title Insurance. Why should Californians pay more for Title Insurance than residents of Iowa?

We, in California, should look forward to the day when Title Insurance goes the way of the T-Rex and California Consumers are not routinely fed to an industry that has no justifiable purpose to exist.

Sometimes extinction can be a good thing.

Onward;

Richard Alexander

It is somewhat metaphorical that the industry that promotes rubber tried to screw the American consumer by keeping essential safety information from becoming public knowledge. But thanks to a ruling by the U.S. Court of Appeals for the District of Columbia, the law is very clear; the data must be made public.

The Transportation Recall Enhancement, Accountability and Documentation (TREAD) Act requires all manufacturers to submit "early warning data" to the Department of Transportation. The reason for this act was a direct result of the tire failures by Firestone and Ford that caused needless injuries and death.

"The TREAD Act was intended to prevent needless deaths and injuries, like those in the Ford/Firestone tire tragedy, by giving regulators and the public quick access to information manufacturers have about crashes involving their products," said Joan Claybrook, President of Public Citizen.

Public Citizen was the lead consumer advocacy group in opposing the Rubber Manufacturers Association (RMA) contention that the information obtained by the TREAD act was not subject to the Freedom of Information Act (FOIA).

The RMA had, incredulously, sought to keep the information private. Their argument was dismissed by the U.S. Court of Appeals in Public Citizen v. Peters. The court held that the "plain language of the statute. . .means what it says."

The RMA argued that the release of the early warning information "lead to the release of inaccurate, unsubstantiated information about tires and automotive equipment." But the Court rejected that argument out of hand. The entire reason for the TREAD Act was to give consumers needed information about the products they were using and their potential catastrophic consequences.

The RMA also argued that the information provided did not allow them to "correct" the data that was submitted. In other words, the industry would not be able to "spin" the public on how their products were safe. The Court easily saw through this specious argument and upheld the intent of the TREAD Act.

This Appellate Court decision paves the way for the U.S. Department of Transportation to begin releasing this critical information that may have been able to prevent needless injury and death for many victims.

In fact, the entire goal of the TREAD Act is to provide consumers early information to prevent needless injuries and deaths caused by faulty products. Had this information been available regarding Firestone tires, many lives could have been saved..

"The D.C. Circuit's opinion eliminates any shred of legal support for the RMA's attempts to keep early warning data under wraps," said Public Citizen Attorney Scott Nelson, who argued the case. "Now that the court has confirmed that the TREAD Act means what it says, it is time for the government to follow the law and comply with its obligations under FOIA."

The importance of this ruling cannot be underestimated. Based on this lawsuit, the Department of Transportation had withheld the release of the data it has already collected from the TREAD Act. How many injuries and deaths could have prevented had the information been made public earlier is unknown. But it is clear from the actions of the RMA that much of the information will show a callous disregard for human life on the part of the manufacturers.

If it did not, the release of the information would never have been an issue.

It is always ironic when the industry that causes the harm wants to protect the public from the information it needs to make an informed decision. This reasoning is often the cause of major tragedies that should have been avoided.

Therefore, it comes as no surprise that the Rubber Industry would use this prophylactic approach in trying to prevent consumers from gaining this important knowledge.

It's comforting to know that the U.S. Court of Appeals is having none of it.

Onward;

Richard Alexander

Contra Costa County was sued on August 1, 2008 for child dumping and breaking California's law that requires adoption agencies to tell adopting parents everything known about a child's background.

A complete medical, psychological, school and family history must be given to adopting parents before the adoption. That didn't happen for Mamie and Mark Johnson and its the central issue in their case.

Mamie and Mark Johnson have a unique family with five adopted children, all born by drug mothers, all addicted and their first bite of life going through withdrawal. That puts the Johnsons on the top of my list for sainthood.

In addition the Johnsons have been public advocates for Contra Costa County's Department of Children and Family Services, urging others to consider adopting drug babies as they have - the children in the greatest need and with the lowest prospect of being adopted.

The Johnsons have adopted five children of drug mothers but have refused to consider children who were sexually, physically, or otherwise abused.

In 2001, Contra Costa County asked the Johnsons to accept an 11th-month old on an emergency basis who had been removed from his mother at birth.
Based on their previous experience with both Contra Costa County, Mr. and Mrs. Johnson expected the County to fully disclose to the child's family background, especially since they had made it clear to adoption authorities that they would not accept an abused child.

As part of the Adoptive Placement Agreement of May 15, 2002 between Mamie and Mark Johnson and Contra Costa County Adoptions, Mr. and Mrs. Johnson were provided with purported disclosure documents by Contra Costa County Department of Health and Human Services social worker Reynalda Ganding.

These records reveal that in February 2000, before the child's birth, the birth mother was reported to have physically abused two of her children. In addition, the birth mother was reported to be homeless and had outstanding warrants for drugs, prostitution and theft, plus two prostitution convictions in 1988 and 1997. The family history states the birth mother was involvd in domestic violence, but was silent whether she was a victim or a perpetrator.

The reports of abusing older children and domestic violence were not a concern because the child was taken from his mother immediately following his birth when he "tested positive for cocaine at birth and hence, was placed in police custody."

Mr. and Mrs. Johnson believed that the County was following the law and had made a full and complete disclosure of the child's background.

Mamie and Mark Johnson trusted the County to obey the law and tell them truth of what it knew about this 11-month old's family background. As a result, the Johnson relied on the County's disclosures and opened their family, their home and their hearts to this baby with his formal adoption on June 18, 2002.

Mental illness does not simply explode, it unfolds and develops as a child gets older.

In the case of this child, his conduct became increasingly bizarre in a classic "one step forward" in improvement and "two steps backwards." Setting fires, smearing feces on walls, willfully urinating on a bed, setting off fire alarms, removing the seatbelts of siblings, stealing, sexually abusing a classmate and violent outbursts at school were definitely diagnosed by a child psychologist in late 2007 as secondary to a severe reactive attachment disorder.

RADS is inflicted on a child through neglect, abuse and abrupt separations from caregivers between the ages of six months and three years. It prevents a child from being socialized and forming normal attachments in early childhood with parents and primary caregivers. A RAD child does not bond and unless there is significant intervention and therapy the damage is lifelong. Make no doubt. This is a very serious personal injury that is permanent.

The psychologist asked Contra Costa County for information concerning the family members who cared for the child from birth during the child's first 11 months. The County reported it has no knowledge of what, if any, emergency required the placement of the child with the Johnsons and claimed that it had no records of what happened during his early formative period.

It is expected that Johnson v. Contra Costa County will follow the course experienced in other adoption fraud cases. Moore v. Tulare County, Collister v. Tulare County and Forter v San Mateo County.

In each case the county took every procedural step to avoid responsibility for its wrongdoing and to avoid trial. On the eve trial public officials are expected to acknowledge the tragic impact of the wrongs it had inflicted on loving families. The personal injuries suffered by the adopted child and the child's families in previous cases were serious and the awards significant: $800,000, $850,000 and $1,400,000.

For more information about personal injury cases of adoption fraud by county adoption agencies, see Adoption Fraud in California, Wrongful Adoption: Fraud by Adoption Agencies; Personal Injury Adoption Fraud Case Report of an $800,000 Recovery, Moore v. Tulare County - Filed Complaint and the complaints filed on behalf of the Johnson, Moore and Collister families.

See also:
Adopted Boy's Ills Reported Hidden, The New York Times, August 9, 1992;
Adoptive parents sue over boy's past, San Jose Mercury News, July 8, 1992;
Adoption suit ends in $1.45 million settlement; San Jose Mercury News, July 9, 1992;
County knew tot was time bomb, claim contends, The San Diego Union-Tribune, August 8, 1992;
Couple say S.F. Hid Facts About Adopted Child, San Francisco Chronicle, October 15, 1992;
Maury Povich Show, September 9, 1992; Couple: County Hid Adopted Child's Illness, San Jose Mercury News, August 9, 1992; Couples Warned to Investigate Before Adoption
Undisclosed Traumas Can Destroy A Family, San Francisco Chronicle, September 22, 1992.

Onward,
Richard Alexander

On August 22, 2008 I finalized a judgment for $10.1 million after a 15-day jury trial for a 12 year-old boy who suffered severe personal injuries when he darted into the street and was struck by a car.  The defendant was speeding at 33 mph in a school zone, yet her carrier refused to pay its $50,000 policy to settle all claims. Jeff Rickard and I tried the case, Jason Baker and our staff providing outstanding support.

On November 14, 2007 at 4:20 pm, Rasheed Hilson left a girls' basketball game at Morrill Middle School located at Morrill and Cropley in northeast San Jose.

Outside of the gym, Rasheed Hilson briefly chatted with four friends before seeing his bus and in typical 12 year-old fashion, ran to catch it without thinking of anything else.  He ran down the school driveway directly into Cropley, without looking, into the path of a BMW.  Kim Phuoc Tran, the driver, admitted she was driving at 33 mph.

The next day Officer Jincy Pace, SJPD, a lead homicide traffic investigator, was assigned this investigation because it was anticipated that Rasheed would die.  Ms. Pace only interviewed the defendant driver who reported she was driving at 33 mph, she saw nothing, never slowed, thought a rock had shattered her windshield, continued driving to Morrill, about 130 yards away before turning and stopping.  My reconstruction showed emphatically the driver could not have avoided seeing her  BMW hit Rasheed.

Ms. Pace called the school and asked an unidentified secretary what time classes were over.  Ms. Pace was told classes ended at 2:30 pm.  Five of seven eyewitnesses, listed in the report by other officers, were 12 year-olds and as many as 30 children were reported outside the gym by one mother who came to school to pick up her daughter and saw the crash.  Ms. Pace never followed up to find out why so many children were present if school was over at 2:30 pm. 

Based on a superficial investigation, Ms. Pace decided the speed limit in effect at the time was 35 mph on the premise that the 25 mph limit only applies when children are coming and going to school and that school was over at 2:30 pm.  She blamed the 12 year-old for his injuries and exonerated the driver.

At trial the school principal Ron Fairchild testified that the school was operating and open for business until 6 pm that day.  After classes were over, a school-wide homework and study hour operated from 2:30 to 3:30 pm, and inter-school athletic events commonly ran from 3:30 to 6 pm. 

On November 14^th he was in the gym with several hundred children attending a girls' basketball game. Five of Rasheed's classmates who were eyewitnesses also reported there was a school basketball game that afternoon.

Ms. Pace never spoke to Fairchild, any of the five eyewitness children or the mother who saw 30 children present outside the school.

Ms. Pace never considered that the 25 mph speed limit is always in effect when school grounds are not separated from the road by a "fence, gate, or other physical barrier while the grounds are in use by children."

In this case, an open driveway and sidewalk from the school to the street, well identified in more than 100 photographs by the SJPD, requires a 25 mph speed limit when the grounds are used by children, even if the school is closed.  Ms. Pace ignored this mandate of the Vehicle Code.

The SJPD erroneously concluded that driving at 33 mph hour in a school zone was legal when children were present, the school was open and the school grounds were not separated from the road by a barrier. 

It is a disgrace for traffic officers not to be trained that when there is no physical barrier and direct access from a school to the street, the speed limit is 25 mph.  Officers making major decisions on traffic safety concerning children must know the law.  There is no excuse for not knowing the law and calling what SJPD did an "investigation." 

On November 18, 2007, Tran's carrier, Amica Mutual Insurance, received the police report detailing Rasheed's personal injuries according to doctors at VMC:  "Hilson current status was critical and his fait [sic] was unknown due to head trauma . . .  Head tramma [sic], a pelvic injury, facial lacerations and a bloken [sic] leg . . . bleeding in the Braind [sic] area, shaking as a result of the Trama [sic], brusing [sic] to the lungs, a pelvic fracture, a broken leg, and unknown if nerosergery [sic] would be needed to the head/brain area  . . .  Moved to the Prdiatric [sic] Intesive [sic] Care Unit where he would be stabilized  . . . Dr. Adams believes the victim should survive the incident but it unclear at this point the extent of disabilities/injuries due to the head trama [sic] sustained by the victim."

This is the quality of reporting by the SJPD in a severe personal injury case involving a child hit by a speeding driver in a school zone. What an embarrassment for a major U.S. city. Never be scared off by an adverse SJPD report.  It may be far from the truth.

On December 6, 2007 a policy limits demand was sent to Amica with a 30-day deadline, reporting Rasheed's loss of consciousness, multiple fractures and lifetime personal injuries from which this child "will never fully recover."  The demand specifically noted that numerous children were present when Rasheed left a school basketball game that afternoon and that the speed limit was 25 mph in a school zone.  That turned out to be the evidence at trial.

On December 12, 2007 Amica's claims department acknowledged receipt of the demand and requested a release for medical records, which was provided immediately. 

At that time, Amica knew that its primary obligation was to protect its insured under her $50,000 policy, a child had been struck in a school zone by a car traveling at close to 35 mph, there were massive personal injuries and VMC pediatric ICU charges and surgeries were expected to be in the hundreds of thousands of dollars. 

Before the 30-day deadline lapsed, Amica made no substantive response to the demand.  It did not offer the $50,000 policy, did not offer the policy conditioned on a medical examination or a written report confirming the injuries and never asked for an extension.

By January 8, 2008 when Rasheed Hilson was discharged from VMC to Subacute Saratoga Hospital it was known he had suffered multiple severe personal injuries: a partial excision of the right frontal lobe, fractures of the mandible, humerus, pelvis, head of the femur, tibia and fibula and would be permanently bedridden.  His medical bills at VMC totaled $788,000.

January 28, 2008 the lawsuit was filed and at the earliest moment an order shortening time brought an early hearing at which  my motion for a priority trial date was granted.

Before the lawsuit was filed I wrote the defendant and urged her to obtain Cumis counsel.  Nothing happened.  I never have seen personal injuries of this magnitude without the insured having Cumis counsel and in May I wrote the Insurance Commissioner advising of the failure of Amica to appoint Cumis counsel for the defendant.

Trial started on June 23^rd before Judge Leslie Nichols.  Steve Werth and Ray Coates of Low, Ball & Lynch defended Tran.  After trial started, the defendant hired Dave Henningsen of Robinson & Wood as Cumis counsel.

It was no surprise that Judge Nichols instructed the jury that the speed limit was 25 mph and that Rasheed was obligated to yield the right of way to Ms. Tran's BMW. 

Because Rasheed's conduct had to be compared to that of 12 year-olds, I presented state-of-the-art testimony by two nationally-recognized scientists who specialize in child brain development and pedestrian safety awareness in 12 year-olds.  Everything you have always known about the impulsivity of 12 year-olds has been confirmed scientifically by functional MRIs and dense array EEGs. 

Our video reconstruction showed the violence  of an impact at 33 mph that threw Rasheed over the BMW and how no collision would have occurred if the driver had obeyed the 25 mph speed law when children are present in a school zone. 

The jury of five Caucasians, five Asians, and two Latinos deliberated for two days and on July 18 found $9 million in economic damages, with 65% comparative fault on Rasheed. After adjusting for Medi-Cal charges, a judgment for $3,058,570 was entered that day.

We had expected a 50/50 finding on liability based on our four focus groups, so 65% comparative fault was in the ballpark, but what was shocking was the finding that Rasheed was awarded nothing for pain and suffering, having suffered severe personal injuries and permanent brain damage.

After the reading of the verdict, I could have asked for the jury to deliberate further, but decided to have the verdict entered and then make a motion for a new trial on damages.

The jury's decision was against the law and violated commitments made in voir dire.  The CACI instruction in a case of liability mandates that compensation for pain  "must" be provided.  Case law provides that damages for pain cannot be zero and a jury cannot eliminate pain from wounds.  Query: would this result have occurred if the plaintiff was white?  That troubles me.  If this case is any guide, Mr. Obama will not do as well in Santa Clara County as some hope.

On an order shortening time, I moved for a new trial on the issue of damages only.  The defendant argued that she wanted a new trial on all issues, but she had not made a motion for new trial and allowed the jurisdictional period to lapse. 

Judge Nichols ordered a new trial on the issue of pain and suffering only, which kept intact the underlying $3 million judgment, providing the defendant did not accept an additur of $7 million [35% of $20 million: a county record].

Judge Nichol's touched our hearts with his 13-page decision summarizing the evidence of Rasheed's family, injuries and suffering.  My motion and his order never mentioned that Rasheed is black.  Judge Nichols in his decision attached photos of Rasheed and his family that were in evidence and a copy of a body-size medical poster in color that detailed Rasheed's injuries.

On August 21^st, the defendant accepted the additur and an amended judgment was entered on August 22nd nunc pro tunc effective July 18, 2008 for $10,102,292.67. 

The bad faith action is next. Unlike nationally known carriers who have paid millions in extra-contractual dollars to our clients before verdict, Amica Mutual Insurance has now exposed itself to punitive damages for not protecting its insured by paying policy limits of $50,000 in a case of severe personal injuries - $10 million worth.

Onward,

Richard Alexander

There is no reason not to have a highly skilled and experience lawyer at the very earliest moment when a catastrophe strikes.   Insurance companies have had their teams of lawyers writing contracts and advising claims personnel for years.  It is a hopeless mismatch when a victim decides to deal with a carrier.

The following is a true story.  The victim's name has been changed at her request to protect her privacy.  

When 70-year old Connie Jones left her home in Mountain View, California on May 3, 2002, she had no idea that her generous nature would bring her a devastating injury and a lesson in bad faith insurance practices.

Mrs.  Jones was walking toward the neightborhood elementary school where she had been volunteering for almost 15 years. She was carrying food that she had prepared and was expecting to enjoy another pleasant day at school. But, because of the unbelievable misconduct of a motorist, she never reached the school that morning. Instead, she suffered a life-altering injury and woke up in a hospital with no memory of what had happened.

Mrs.  Jones had crossed three of the street's four lanes when driver John Zhou, who had an unobstructed view for a quarter of a mile before the crash, hit her at a speed of 35 MPH or more. His attention was on a cell phone or a child in the back seat, but it definitely wasn't on the road in front of him, and drove through Mrs.  Jones without even hitting his  brakes.

The resulting injuries were horrific. 

Mrs.  Jones suffered a below-knee amputation of the right leg and other fractures. She spent more than 3 months in the hospital and at other rehabilitation facilities.

Then, she and her husband found themselves tormented by an insurance company that had refused to pay a valid claim.

In Mrs.  Jones' case, there was no question of who was wrong. 

The driver admitted that he wasn't paying attention, and the insurance company had no reason for not paying its policy limit of $100,000 immediately.

But three months after the accident, Farmers Insurance, which badfaithinsurance.org has rated the sixth worst insurance company for its payment of claims, still hadn't honored its obligation to Mr. and Mrs.  Jones.

It could have been much worse if Mr. and Mrs.  Jones had not hired me. Fortunately they did and ultimately received a full value recovery of $2.65 million instead of the policy limit of $100,000 that Farmers could have paid if it had acted in good faith.

Mrs.  Jones' experience has clear messages for everyone who suffers a serious personal injury. 

Everyone in this situation should call an experienced personal injury lawyer immediately. Don't talk to anyone, not even your own insurance company's adjuster, until you find out what you don't know, which is a lot. 

In many cases, just like this one, it is possible to recovery "full value" even when that is many times the policy limit.

This amputation will affect Mrs. Jones every moment for the rest of her life, but after the crash it's insurance companies know try to take advantage of victims' to make force a settlement that will save the company money.

Everyone I have spoken with after a major loss believes they know all there is know, even though they have no claims experience and have never fought it out with a carrier.

My job is to provide full protection over the long-term and to minimize the financial disaster that always accompanies a catastrophic injury and sometimes help bring about a happy ending.

Onward,

Richard Alexander

The United States Supreme Court reduced the amount of punitive damages Exxon Mobile will have to pay for its destruction of the Alaska coastline from $5 billion to $500 million.   This gift of funds comes on the heels of a reported $40 billion profit by the oil giant for the year 2007.  This is the largest annual profit for a corporation in history.

Originally a jury awarded the victims of the Exxon Valdez spill $5 billion in punitive damages.  Later an Appellate Court to $2.5 billion reduced that.  The Supreme Court showing they are more generous than any appellate jurisdiction reduced it to just $500 million.

The Exxon Valdez oil spill occurred in 1989 and the original jury verdict was made in 1994.  The giant oil corporation, by balking at paying the jury's award, was able to save $4.5 billion in penalties, plus the cost of money over 14 years.    If Exxon had put the original award of $5 billion into a certificate of deposit at 7%, it would have earned $500 million in interest in less than two years.

That's Exxon's punishment for its reckless misconduct in spilling 10.8 million gallons into Prince William Sound.  It remains one of the greatest environmental disasters in our history. 

But the real story is the Court's decimation of the important role of punitive damages to punish outlaws and hold them publicly accountable.

Corporations and the corporate controlled media like to perpetuate the mythology that punitive damages awards are excessive.  Punitive damages are only used against a defendant when a jury has determined an egregious wrong was committed.   The jury in the Exxon Valdez found that the company knew that the Captain of the vessel was an alcoholic and that he had been drinking on the ship.  They also found that compensatory damages to commercial fisherman would never be sufficient for their loss.

In addition, the court found Exxon was slow to act to clean-up the disaster and executives of the company had little remorse for the actions of the company that led to the disaster.

The 33,000 plaintiffs in the case would have received $150,000 after the jury award, $75,000 after the reduction by the Appellate Court and $15,000 after the today's ruling.  Fifteen thousand dollars is the equivalent of $7,000 placed in a bank in 1994 at five percent interest.

The Court's ruling is a travesty for protecting the environment.  Scientists have concluded it will take over 30 years for the coastline to recover.  There is no reason, given the new guidelines for punitive damages, that giant corporations should fear be deterred from reckless or intentional misconduct, as long as they have correctly calculated their economic risks. 

Environmental destruction, contaminated foods, toxic products, and dangerous toys for children will not be detrrred as a result of this decision. 

There's other lesson from the Exxon Valdez case.  Corporations now are assured that if they stretch litigation out and get to a very friendly Supreme Court they can maximize their profit and limit their liability.  The only real danger they face is from a qualified attorney in front of a jury who can justly determine the damages.  

That's why corporations are supporting John McCain for president.  With four right-wingers just waiting for one more vote, the election of McCain guarantees a decade of corporate protection at the U.S. Supreme Court.

Across the board the right-wing minority on the Supreme Court relishes its power to eviscerate the rights of consumers whenever it can scare up one more vote.   Check the recent history on prescription drugs and medical devices.  

We need the Supremes to sing a different tune.  That will only be possible if we elect a candidate for change in November.  He's not the old white guy riding in a golf cart with President Bush.

Onward,

Richard Alexander

The statue of Justice atop the U.S. Supreme Court wears a blindfold. 

No one would drive a car in that condition. 

However, when it comes to the Federal Motor Vehicle Safety Standard for sideview mirrors, the U.S. government agency in charge of auto safety is not only blind, but also oblivious to the simplest and easiest method readily available to reduce highway carnage.  And Detroit, as usual, is equally incompetent, acquiescing to a system that it knows is unsafe.

Most freeway collisions are caused by a lane change into an occupied lane or rear ending a car while looking back to determine if an adjacent lane is open. 

Preventing many of these collisions, and in many cases resulting rollovers, is simple.  Set sideview mirrors to the blind spot and only use the interior mirror for a view to the rear.  That is the practice followed by racecar drivers, savvy traffic officers and professional truckers, crash reconstructionists and anyone who studies highway accidents, deaths and injuries. 

On the other hand the Federal Safety Standard for outside mirrors assumes that the sideview mirror should operate as a rearview mirror and be set to see traffic behind the vehicle.  Not only is that a tragic mistake, it is truly dumb.

The standard reads like it was written by one of those "easy set-up" manuals every Santa Claus must endure on Christmas Eve.

 S5.2 Outside rearview mirror--driver's side. Field of view. Each passenger car shall have an outside mirror of unit magnification. The mirror shall provide the driver a view of a level road surface extending to the horizon from a line, perpendicular to a longitudinal plane tangent to the driver's side of the vehicle at the widest point, extending 2.4 m out from the tangent plane 10.7 m behind the driver's eyes, with the seat in the rearmost position. The line of sight may be partially obscured by rear body or fender contours. The location of the driver's eye reference points shall be those established in Motor Vehicle Safety Standard No. 104 (§571.104) or a nominal location appropriate for any 95th percentile male driver. [Emphasis added.]

The standard presumes side mirrors should be used to provide a rearward view back along the side of the vehicle which can be "partially obscured" by the car's body.

Designing sideview mirrors to see traffic directly behind a vehicle, eliminates the most critical viewing need: clearing the blind spot, where potential death lurks in a lane change at 75 mph.  It is far more important to see traffic in the blind spot at the side of a vehicle than to see what is behind.

Make your cars freeway safe.

The next time you are stopped for a traffic light set your side mirrors to show you cars in your blind spots.  These are vehicles that you will not be able to see in your interior rearview mirror.

Once on a freeway with your adjusted mirrors, follow this procedure when making a lane change and put yourself in that top category of professional drivers, just like Scott Dixon, Mario Andretti, Ed Carpenter, A. J. Foyt, Victor Meira and Graham Rahal, who use this same procedure to avoid lane change crashes:  

1.  Turn signal.

2.  Check rearview mirror for advancing traffic.

3.  A momentary shift of your eyes to the sideview mirror instantly will tell you if there is a car in your blind spot.

4.  Make sure traffic is safely ahead so you can avoid an unexpected emergency.

5.  In tight traffic, shift your foot above the brake pedal, just in case you need to brake for an emergency. 

6.  Now reconfirm your blind spot is free for your lane change.

This procedure gives you a substantial safety advantage because it minimizes your "look back" time.  

Many people look back as long as 2 to 3 seconds and ignore traffic developments ahead of them.  

Next time you are a passenger check it out.  Silently count the seconds a driver devotes to looking back over their shoulder and remember at 70 mph you are traveling 105 feet a second.  In two seconds you have covered two-thirds of a football field.  Warning: this can be a frightening experience.

The Federal Safety Standard for Sideview Mirrors should be changed, as well as the way we teach new drivers, especially teenagers, to adjust and use their mirrors to avoid lane change collisions and rollovers.

The current "safety" regulation induces collisions that easily could be avoided.  In addition to rear end collisions, SUV rollovers commnly occur as a result of last minute attempts by drivers to swerve when making a lane change to avoid a crash.   The abrupt swerve of a poorly designed, top-heavy vehicle is a design trap waiting to ensnare the innocent.   And while SUVs are losing the luster as the vehicle of choice because of the high cost of gas, they will continue to be with us for years simply because on the huge numbers of vehicles purchased in the past.

The U.S. National Highway Traffic Safety Administration must revise the current unsafe standard.  No driver should be taught to set mirrors to avoid a direct view at blind spots.  As for the government's apparent disabilities, we can only call attention to them and hope they remedy the problem.  All they have to do is take off the blinders to see danger lurking in the blind spot.

Onward,

Richard Alexander