Andrew Ackley

Wrongful death law is arcane and immoral, and it needs to change.

CaptureThat is what I told the Washington State House Judiciary Committee yesterday.  Washington’s wrongful death laws are some of the worst in the country.  There is generally no wrongful death claim for the death of an unmarried adult without children, so for example, most young people just starting out their lives.  You could raise a child for 17 years and 364 days, and if she dies on her 18th birthday, your loss as a parent does not count under the law unless you were financially dependent on her.  If she suffered for days before ultimately dying, her suffering does not count under the law unless you were financially dependent on her.  It is 2018 and we are using laws from the 1800s.

On Thursday, many brave parents came forward to tell their stories of deep and unnatural loss–burying a child.  What caused them to suffer more was Washington’s unnatural laws, which devalue the lives of primarily young adults and immigrants–the law requires not only that parents are dependent on the adult child, but that parents live in Washington.

When it is cheaper to kill than to injure young people, the law is wrong.  More to come on this.

Amtrak 501 Disaster: Piecing It Together

The NTSB has started releasing preliminary information about the circumstances surrounding the Amtrak 501 crash.  Early information usually comes from easily verifiable sources like video and audio recording.

This KIRO 7 article does a good job of explaining NTSB findings in an investigation that is now expected to take 12-24 months:

  • Inward-facing video with audio captured the crew’s actions and their conversations. A forward-facing video with audio captured conditions in front of the locomotive as well as external sounds.
  • The crew was not observed to use any personal electronic devices during the timeframe reviewed.
  • About six seconds prior to the derailment, the engineer made a comment regarding an over speed condition.
  • The engineer’s actions were consistent with the application of the locomotive’s brakes just before the recording ended. It did not appear the engineer placed the brake handle in emergency-braking mode.
  • The recording ended as the locomotive was tilting and the crew was bracing for impact.
  • The final recorded speed of the locomotive was 78 mph.

The full human performance and human factors reports will take into account many more issues, but operator distraction is an obvious checkbox in transit disasters.

The engineer’s comment regarding the train’s speed and last-second braking may be consistent with questions raised about the Amtrak crew’s potentially inadequate training and lack of positive train control, which could have automatically slowed the train down from the 80-mile per hour pace prior to crashing.  This King 5 article discussing training also has a good video model of the crash.

Mass transit cases are inherently political at the local and often national level.  This KIRO 7 article explains how a WSDOT employee promised the Lakewood City Council–11 months before the crash–that the trains would have positive train control “before we start service.”  Of course, WSDOT has backtracked on that promise, releasing a statement that reads in part:

“David Smelser’s comment about PTC being operational at the time service started on the Point Defiance Bypass was based on the best information he had at the time. If the litmus test is that PTC needs to be fully activated to operate passenger rail service, then there would not be any passenger rail service statewide and in many areas of the country.”

Amtrak’s CEO reported that the company expects to have positive train control activated in the northwest before the deadline imposed by the federal government–the end of 2018.

This is litigation-speak.  They are saying that the standard of care for safe train operation is only the bare minimum of what the federal government mandates across the country.  That’s a lousy argument.  The initial deadline for positive train control was 2015.  It was extended after Amtrak and other common carriers threatened to shut down service.  As this article reports, “Critics [of the extension] have complained the agreement will result in a “blanket five-year” extension for railroads to install technology that has been touted as a life-saver that can prevent deadly train accidents. ”

We should be entitled to safety standards that meet our community’s expectations.

 

 

 

Amtrak 501 Disaster: “shame on them” and lessons from the Ride the Ducks transit disaster

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My heart goes out to these families and first responders.  The horror depicted in the picture above pales in comparison to the inside of those trains, and the path forward after an event like today’s Amtrak 501 disaster involving multiple fatalities and dozens of injuries.

News is starting to break about potential causes.  Amtrak President and Co-CEO Richard Anderson said Positive Train Control (“PTC”) was not activated on the tracks at the time of the derailment.  PTC automatically slows the train if it senses the train is going too fast or may crash.  Railroad investigator John Hiatt told CNN, “If there was no Positive Train Control in effect there, then shame on them.”

Responsibility for this tragedy is likely to be complicated.  The train that derailed this morning was owned by both Washington State and Oregon Departments of Transportation.  Amtrak is responsible for service and daily operations. The tracks are owned by Sound Transit.  Because this was the “inaugural” trip, independent engineering and transit firms are also in the mix.

Karen Koehler and I represent 39–a substantial majority–of the victims of the Ride the Ducks crash, believed to be the worst mass transit disaster in Seattle history.   It involves many of the same issues likely to be investigated in the Amtrak 501 disaster: product design and failure, maintenance or operator failure, and fatal public transportation flaws.  With numerous parties and distinct legal theories, this is as complex as litigation gets.  These  cases require dozens of depositions, ten or more forensic experts, lab and engineering testing on an enormous scale, and hundreds of thousands of pages in documentary evidence.

In the Amtrak 501 disaster,  the NTSB will most likely release a preliminary statement concerning potential causes in the coming days or weeks.  The full NTSB investigation can take months or years.  The NTSB will ultimately hold a hearing regarding the information gathered and its conclusions as to the causes and responsibility for the disaster.  NTSB conclusions are not directly admissible in court, however, so the victims of a mass transit disaster still must investigate on their own.

A lot can be learned through comprehensive public disclosure requests and extensive fact-finding investigations in litigation.  First responders will likely conduct a review of the crash and their response to a mass casualty incident (“MCI”).  Although there are several definitions of MCI, it typically refers to an incident where the scope of the injuries and circumstances on scene force first responders to abandon the ordinary standard of care that would apply to one-to-one (or similar ratio) medical response.  An incident will often be declared an MCI during the initial response on scene, which signals to medics and other authorities that they need to triage patients and coordinate the scene.  From that point forward, first responders employ a chain of command with assigned groups such as Rescue Group and Operations.

In an MCI, documentation and immediate identification of victims can be impossible.  We took 19 depositions of first responders in the Ride the Ducks disaster to piece together the carnage of the scene and swift MCI response by the Seattle Fire Department.  After 30 more depositions, the truth reveals itself.

That is, after all, the main goal victims have–what happened to me and my family, and why?  I hope the victims of the Amtrak 501 disaster get the answers they deserve.

Settlement Vultures: NFL Edition

On July 12 I wrote about predatory structured settlement purchasers who buy out periodic payments to the disabled–those who need the funds over their lifetime–for 30-40 cents on the dollar.  On July 16, the New York Times published a story entitled, “After N.F.L. Concussion Settlement, Feeding Frenzy of Lawyers and Lenders.”  The article describes predatory sales pitches to former NFL players “who stand to receive checks from the largest legal settlement in sports history, a pool of money that may top $1 billion for retirees who sued the league for lying to them about the dangers of concussions as they got their heads pounded on the field.”

The stench of $1 billion has attracted lenders offering tens of thousands of dollars that would be paid back from the settlement payouts–commonly called “lawsuit loans” or “pre-settlement funding.”  All they ask in return is 40% interest, which can completely consume any recovery from the settlement, according to the article.

Lawsuit lending is the “before” equivalent of structured settlement purchases, and often preys on a person’s desire for immediate gratification, or worse, their need of funds for healthcare or other essentials, even though there may be far more financially sound solutions.

The New York attorney general filed suit against RD Legal Funding, LLC, a lawsuit lending company based in New Jersey who allegedly targeted NFL players with “severe neurological disorders.”  Reporting by the New York Times explains:

This type of lending against a settlement payout is part of a legal but largely unregulated business focused mostly on victims in personal injury cases. The loans, though, have potentially devastating trapdoors, most notably the high interest rates that kick in immediately after money is advanced, and can cut deeply into the sum a player might ultimately receive in a settlement.

Some financial watchdogs accuse the lenders of preying on people who are sick or who, in the case of the N.F.L. retirees, have memory problems or other cognitive ailments that could mean they cannot fully grasp the terms of the loans, which often require the players’ lawyers to provide consent.

Whether before a settlement or after, there are numerous companies waiting to prey on those in the greatest need, and those who are least able to protect themselves.  Sadly, it works.

Let Me Take This Money Off Your Hands For You: Predatory Structured Settlement Purchasers

We recently handled a fraud and consumer protection case against two structured settlement purchasers that settled in about four months, one for a confidential amount and one for a several hundred thousand dollar gross recovery.  While I cannot yet go into case specifics, below are some words of caution about a predatory and insular industry operating within Washington courts for settlements originating all over the country.

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The vast majority of plaintiffs spend their settlement funds in the blink of an eye, relatively speaking.  Numbers vary depending on the study, but generally about 90% of settlement beneficiaries dissipate most or all of a lump sum settlement within five years.  Sometimes clients spend the money wisely.  But because almost no one is accustomed to receiving a large chunk of money all at once–larger than any amount they have ever seen–more often than not a significant portion is blown on frivolous stuff.

For this reason, many lawyers negotiating large claims discuss with clients the need to plan ahead.  We are not financial advisors, but we encourage clients to explore their opportunities with appropriate experts.

One of the most common avenues lawyers mention is a structured settlement (“SS”).    In a SS, the defense insurer agrees to pay a lump sum to purchase an annuity that makes periodic payments on a schedule chosen by the settlement beneficiary, usually over decades, including interest.  A SS affords significant tax benefits under 26 U.S. Code § 130 and 26 U.S. Code § 104(a).  Many lawyers believe a SS protects the beneficiary’s funds over the long term.

Unfortunately, for every smart financial move there is a business willing to take advantage of it.  26 U.S. Code § 5891 allows “factoring transactions,” or sales, of structured settlement benefits.  Thanks to these businesses, for a lump sum “advance” your client can sell some or all of his benefits for 30-40 cents on the dollar, or the equivalent of a 15-20% interest rate (like a college student’s first credit card) on a totally secure transaction (like a high equity home mortgage).

Washington’s Structured Settlement Protection Act (“SSPA”), RCW 19.205, offers some protections.  The SSPA requires that any proposed transfer be approved by a judge with findings that the “transfer is in the best interest of the payee,” and that the “transfer does not contravene any applicable statute or the order of any court.”  RCW 19.205.030.  None of the Act’s provisions may be waived, and complying with the SSPA is “the sole responsibility” of the SS purchaser.  RCW 19.205.060(1) and (6).

Like many laws, however, the SSPA is only as good as the information applied to it.  SS purchasers that petition for these sales often do little or no investigation before certifying that the transfer does not contravene the order of any court and is in the best interest of the SS beneficiary.  Worse, some willfully ignore and conceal contrary information to obtain court approval, such as the SS beneficiary’s disability or a minor settlement order in another state placing permanent restrictions on the transfer of funds.  Some SS purchasers then have the gall to argue that the enforceability of a fraudulently obtained transfer order is subject to an arbitration clause, and is outside the jurisdiction of the court signing the order.

Remember that like Washington, other states provide jurisdiction for SS sales on settlements originating elsewhere.  A Washington SS could be sold in another state based on inadequate investigation and/or concealment by the purchaser. Even within Washington courts, the system could improve.  For example, in King County LCR 40.1 sets all minor/disability settlement approvals before Ex Parte/Probate, whereas LCR 40(b)(14) puts structured settlement transactions under RCW 19.205 before Chief Civil.  The judges deciding what to do with minor/disability settlements, and why, may not be able to foresee how a proposed sale is determined, and the judges deciding on a proposed sale may not be as intimately familiar with the unique interests and options of minor and disability settlements.

For any structured settlement involving a minor or disabled person, you should consider whether or not restrictions on sale/transfer are appropriate.  If so, the settlement agreement and any court order approving settlement should contain language that the beneficiary “shall not have the power to transfer or sell benefits,” either at all or except under very specific conditions or circumstances.  Some jurisdictions require this disempowerment language rather than language merely prohibiting sale.

Common conditions on sale include that the “advance” be used only to fund education, or for compelling financial need.  I would also recommend that a settlement order prohibit any sale exceeding a specific “discount rate,” any sale accompanied by an arbitration agreement, and any sale in a jurisdiction other than the court approving the original settlement.

Good luck.

Preventing Child Drowning in Pools

CaptureAn aquatic safety expert in one of our drowning cases–the tragic pool drowning death of a child–testified that in all his forensic work, he has never seen a state with more detailed, thorough, and readily available pool safety standards than the codes and publications in Washington State.

Drowning is the second leading cause of injury-related deaths of  U.S. children ages 1-14, and among 1-4-year old children, most drownings occur in residential swimming pools.  Washington has enacted detailed pool barrier requirements for two reasons: (1) children are attracted to water, and (2) the “human gate,” i.e. a parent or caretaker, is not effective 100% of the time.  Most young child drownings occur within five minutes of the child being seen inside the home.

Many pool barrier standards are described in WAC 246-260-031 , found here.  Fences must be either five or six feet high (depending on the type of pool and use) and constructed in a way that does not allow children to climb.  Access gates or doors must be self-closing and self-latching when opened from any distance.  The latch must not be accessible to children.

Washington’s Department of Health posts publications online, and the Washington State Environmental Health Association publishes its “Pool Operator’s Manual” containing guidance for recreational pool owners and operators.

The “Pool Operator’s Manual” warns, “you are choosing to be part of the industry and to assume the special risks and rewards that go along with pool ownership.” Pool operators are required to anticipate that children will not always be under direct parental supervision, and that children are creative in their exploration.  The manual encourages operators to invite a parent of a 3-4-year old child to inspect the facility for access points, for precisely this reason.

The Department of Health identifies two more critical features of a safe gate design: (1) the gate should open outward (pull rather than push), and (2) the gate must be constructed to function properly in spite of wear and tear.

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These requirements are relatively simple and inexpensive to implement, and they save lives every day.

This Should Never Happen: Diver Air Supply “Severed” in Scuba Death

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Several news organizations are reporting that the death of Hank Williams Hoskins Sr. resulted from a “severed” air hose when he was diving off the San Juan Islands on October 26.   Mr. Hoskins, 40, was apparently a commercial diver diving without a backup air supply (in many circumstances this is totally normal).  The county medical examiner blamed the death on an “unsafe dive operation,” with disregard for emergency procedures, according to the Bellingham Herald.

While I have yet to see any explanation as to exactly what happened under water, this is unusual in a number of ways.  First, air hoses do not sever easily.  Divers routinely dive in caves, ship wrecks, and around sea life, all of which could pose a danger to a fragile air supply.  But the hoses attached to air regulators are not thin or delicate for exactly these reasons.

If the commercial dive operation involved an increased risk of severing hoses, as a Divemaster I would expect divers to have secondary emergency air supplies–a second air tank connected to a different regulator.  Commercial divers who dive deeper than 130 ft and/or stay at depth for more than 10-20 minutes often use secondary tanks at decompression stops.  Either of these would have been helpful in the event of an emergency.

But perhaps the most basic safety requirement of Scuba diving that could have prevented this death is the buddy system.  Divers are not supposed to dive alone.  The first stage of dive regulators (which attaches to the tank) connects to two second stages (mouthpieces) so in the event of an emergency like a malfunctioning air supply, a diver can breathe off his buddy’s air.

News reports do not describe exactly what happened, but in most cases safety precautions like the above prevent underwater emergencies from becoming drowning deaths.

(Note: the picture above is an example only.  It hasn’t been reported what brand or type of regulator was used.)

 

Ducking Responsibility

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Saturday was the one year anniversary of Ride the Ducks Crash on the Aurora Bridge.  As you may know our firm represents 20 of the victims.

Last Friday, the owner of Ride the Ducks Seattle (RTDS) went on a media campaign proclaiming at every opportunity that he wants a “global mediation” where everyone can be treated fairly and the cases can be resolved.  This is an effective way for RTDS to convey in a single message to the media and the public that it cares about the victims and is taking responsibility.

But how genuine is it?

Ride the Ducks did propose global mediation involving five defendants and 60 or more plaintiffs, plus dozens more attorneys.  They did so by group email.  Not a proposed stipulation, not with prior agreement by other defendants, not an actual plan, just a group email.  Like how you might throw out an idea for a theme party.

For point of reference, things Ride the Ducks felt warranted actual letterhead or pleading paper have included (1) leveling personal attacks at/scolding Karen for posting a picture of the “Duck Nest” on social media, which RTDS has now broadcast on local news networks, (2) demanding everything we have compiled during our investigation in preparation for the litigation, and (3) scheduling meetings about the case schedule.

For further point of reference, the parties spent hours filing cross motions about when the trial date should be, with the defendants wanting to push it out to June 2019.  But this proposed early global mediation, where everyone will be treated so fairly, warrants a group email.

How else is Ride the Ducks taking responsibility and furthering its desire to globally mediate?  The company:

  1. Spent the week of the anniversary hounding us over our objection to producing the fruits of our investigation, and then, ignoring that we twice asked why the issue needed to be debated that week, unilaterally scheduled a discovery conference on Friday right before the memorial service for the Ride the Ducks victims at North Seattle College.  We were scheduled to attend to be supportive of our clients, because that’s what we do.  Context reminder: trial is two years from now.
  2. Hasn’t bothered to collect medical records to see all of the harm the crash caused (an obvious prerequisite for mediation), and yet…
  3. Thought it was important to demand the STD history of the victims in discovery.

 

What else is Ride the Ducks doing to take responsibility?  Blaming lawyers, naturally.

Brian Tracey (owner) stated to Q13: “Most aggressive attorneys will get to trial first and get the lion’s share of the money. I don’t want it to happen, I want everybody to be treated fairly.”

Here’s what is actually going on.  Many of the cases filed early after the crash had trial dates as early as November 2016 (two months from now).  All of the cases have since been set on the same modified case schedule with a trial date in September 2018.  Judges handling the cases have requested that all parties file lawsuits in time for their cases to be tried beginning September 2018.  You can decide for yourself if Mr. Tracey’s statement is (a) accurate or (b) a clever way to abscond with the moral high ground and blame lawyers for the lack of a resolution.

This is not the first time Mr. Tracey has gone out of his way to blame lawyers for his company’s bad PR.  He  blamed Karen and other plaintiffs’ lawyers for a “campaign to discredit RTDS’ safety worthiness.”  This is a company which, in addition to the horrific crash that killed five people, admitted to 463 safety violations.  A company with only half of its fleet allowed to conduct tours.  A company which, the lawsuits allege, declined to implement critical, manufacturer-recommended safety fixes “to avoid axle fractures” (what the preliminary NTSB report concluded had happened) that were supposed to be completed “prior to operating 2014.”  Somehow trial lawyers and their photographs of Duck vehicles are to blame for bad PR.

You can always keep blaming us lawyers if you want to duck responsibility.  We can take it. But don’t try to fix your PR problem by giving victims an illusory hope of closure for an extremely traumatic and life-changing event.  On the anniversary no less.  They’re suffering enough.

Here’s an article about the victims, which is what the anniversary should be about.

 

 

Pocket amp to keep the peace

Do you know how often sleeping kids love hearing electric guitar?  Pretty much never.  I used to have a headphone amp device that made for so-so sound and looked like a walkman on steroids and probably cost $150.  Who knew you could get nearly full amp sound with effects in the size of a pack of gum and for the cost of cheap toaster?  Now nobody has to hear how rusty I am.

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Crown molding… my nemesis

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I have a years-long habit of buying the tools I need only after I discover I need them the hard way.  This means that my first try at almost anything is a disaster.  When the guys at Home Depot start chuckling when you come back in for the fourth time in a weekend, it’s time to buy better tools.

A couple years ago, because I did fine with baseboards, I thought crown molding would be cake.  I spent most of the afternoon banging my head against the wall, and then the other wall, and then the other wall…

This time I had a proper miter saw and a crown molding jig, which is a must-have to get the angles and cuts right consistently.  This weekend I conquered crown molding, my nemesis, in about an hour, with no head wounds, and lots of excuses to use the nail gun.



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