Can Child Car Heatstroke Deaths be Prevented?


It is being called an epidemic.  Some people say they do not understand how any parent could leave a child in a hot car, for minutes or hours at a time, while other parents, such as Sunny Hostin, Legal Analyst from CNN, are coming forward to admit that yes, they have been guilty of the same type of action bringing rise to his charges.  Is it mere negligence or an intentional crime under this set of facts?  Just yesterday, a man was arrested and charged criminally for leaving his 22-month old son in a hot car, strapped to his rear-facing seat in Atlanta last week, when he went to work at a Home Depot corporate office.  Allegations have been made that at some time during the day, he returned to that car to place something in the car, still not noticing the child in the back seat.  Statistics show that 44 children died from vehicle-induced heat stroke in 2013 alone.  Since 1998, about 450 children have suffered the same fate.  Was the boy’s death an accident or was it intentional?  If it was an accident, should the man be prosecuted?  Unfortunately, although this does happen frequently, and quite honestly, from distraction and negligence, it is also possible that some children are being left in cars on purpose.  As parents and good moral citizens, we cannot fathom why someone would do this intentionally to a helpless child.  In order to be convicted of a crime, the prosecution will have to prove the man intended to leave his child in the hot car.   A witness to the incident claimed the man stated the baby had just “started choking”, although the witness could clearly see the child was not choking.  The child had clearly been sweating as if he was in a swimming pool.  It has also been alleged that the parking lot the man pulled into after “discovering” his son’s body is a ten minute drive from where he works, leading credence to the charges of murder and child cruelty.

Supporters who allege that this type of “accident” just “happens” fail to consider how these tragedies can be prevented.  One way to prevent them is to leave your purse or one of your shoes in the back seat with your child when you have them in the car.  According to, 14 percent of parents have intentionally left their children in a parked car, while 11 percent of parents admit to forgetting their child in a car.  Dads are nearly three times more likely than moms to leave a child in a parked car.  Although some heatstroke deaths in cars are not caused by forgetting and just a lack of education as to how quickly a child can die, more than half of all these incidents are caused by the parent forgetting, being distracted or preoccupied, or even simply breaking a routine.  Although we seldom hear of charges as serious as this man is facing, parents suffer the consequences of the loss of their children.  Can technology help?  If you are transporting a child in your car, set an alarm on your phone to remind you that your child is in the car or write yourself a note and stick it on your front seat near something you know you will need when you arrive at your destination. Send yourself a quick email to your work before you get into the car.  Remember to always look before you lock your car.

Many states have enacted laws on this issue, including Nebraska, when it passed the Child Protection Act, Neb. Rev. Stat. § 28-710, which allows a parent to be charged with child abuse or neglect if a child is placed in a situation that endangers his or her life or physical health or if they are left unattended in a motor vehicle at age six or younger.  These types of laws can serve as a deterrent to intentional acts, however do not protect children from the negligence of a distracted parent.  We, as a society, have to develop a plan to assist our community’s parents in avoiding any distraction that places their children in danger.  If you have another idea as to how to help parents avoid these senseless tragedies, please leave a comment on Twitter using #NEVERLEFT or go to:  Whether it is leaving something in the car to remind you or using technology as a reminder, there are ways to prevent the senseless tragedies that are killing our children.

What to Do After an Automobile Accident

It happens in a second, often without warning.  It can be a short term inconvenience or a life altering event.  Most of us have been involved in some sort of automobile accident in our life.  Even if you are the most careful driver operating a vehicle with a high safety rating, you cannot avoid every accident.  So once you have been involved in an accident, what steps can you take to prevent further danger to yourself, the other driver or anyone else involved in the accident?  First, do not stand in the street and make sure you render aid to any injured persons.  Do not leave the scene of the accident, even if it doesn’t seem serious.  You could be charged with “Leaving the Scene of an Accident”, which can be a misdemeanor or a felony crime , depending on whether the other party claims injuries as a result of the accident and your state’s laws.  It is also important that you document the accident completely.  This includes exchanging insurance information and reporting the accident to law enforcement.   You will also want to take photographs if it is safe to do so without standing where you could be hit by passing traffic.  Photographs can be taken by a digital camera or even a camera phone.

Exchanging insurance information is an important part of documenting the accident.  Make sure you confirm the information the other driver gives you by viewing their driver’s license and insurance card.  Be sure to exchange name, address, phone number, insurance company, insurance policy and make, model and color of the vehicles involved in the accident.  Reporting the accident to law enforcement will also help both drivers confirm the information is accurate and any statements to the police regarding liability or potential injuries.  If you are injured in the accident, seek medical care as soon as possible and follow the recommendations of your treating physicians.  Make sure you keep a good record of where you have treated and any bills or expenses related to the accident.  Reporting the accident to law enforcement helps further document the occurrence of the accident.  As many as one in seven drivers has no car insurance.  This is why it is important to keep your insurance up to date.  If an uninsured driver hits you, you may need to make a claim against your own insurance company.  Do not forget to file your driver accident report, which must be filed with the Department of Motor Vehicles within ten (10) days of your accident in the State of Nebraska.  Make sure you are detailed and note what street you were on, which direction you were traveling and the details of how the accident happened.  You will also want to get the names, addresses and phone numbers of any witnesses to the accident.

Not everyone is calm and collected at the scene of an accident, but remember to handle yourself appropriately.  Always ask if the other driver is okay and never admit fault.  Be polite and courteous, but do not offer more information than your name and basic insurance information.  Remember that comments made at the scene of an accident can be held against you later.   You may also want to consult with an attorney to determine whether or not you have a claim against the other driver for your injuries and to ensure you get a fair and timely property settlement from the insurance company.  Remember that insurance claims take time to resolve so keep in touch with the insurance company while your vehicle is being repaired in order to ensure that your vehicle is repaired properly and you do not end up owing extra money in car rental fees.    Properly documenting an accident can ensure a smoother insurance claims process and reduce your stress as you prepare to find a new vehicle and get back on the road again.


Tracy Morgan and James “Jimmy Mack” McNair: Another Tragedy Caused by Lack of Sleep?

This weekend brought yet another tragedy caused by a truck driver who hadn’t slept for more than 24 hours prior to the accident.  Although the Federal Motor Carrier Safety Administration (FMSCA) requires truck drivers to take breaks from driving in their hours-of-service rules, it is not uncommon for accidents to occur when drivers violate those rules.  In 2013, these rules were modified to limit the maximum average work week for a truck driver to 70 hours (a decrease from the former 82 hours) with a requirement for truck drivers to take a 30 minute break during the first eight hours of a shift.  The rules were also modified to allow drivers who reach the maximum of 70 hours a week to resume if they had rested 34 consecutive hours, including at least two nights when their body clock demands the sleep most – from 1:00 to 5:00 a.m.   The rules allow for 11 hours of daily driving and a 14 hour work day.  Penalties for violations of these rules carry fines of up to $11,000.00 per offense for trucking companies and civil penalties to the drivers of up to $2,750.00 for each offense.  However, the real concern for these rules is highway safety.    According to FMSCA Administrator Anne S. Ferro, “These fatigue-fighting rules for truck drivers were carefully crafted based on years of scientific research and unprecedented stakeholder outreach. . . The result is a fair and balanced approach that will result in an estimated $280 million in savings from fewer large truck crashes and $470 million in savings from improved driver health. Most importantly, it will save lives.”  The new regulations were estimated to save 19 lives and prevent approximately 1,400 crashes and 560 injuries each year.

That’s what happened to a married couple, their two sons, and an unborn child who were moving from Montgomery County to California in 2012.  Christopher Schmidt, age 30 and his wife, Diana Schmidt, age 28, were moving their family to the Sacramento area to be closer to Diana’s parents.  Diana Schmidt was seven months pregnant.  The two parents were traveling in separate cars, one behind the other, when they were forced to stop for traffic on Interstate 80 which had slowed due to another accident ahead.  A tractor-trailer approaching from behind slammed into the Ford Mustang Christopher Schmidt was driving and the force of that collision propelled the Mustang into the rear of the Toyota Corolla carrying Diana and the children, causing the Toyota to crash into a truck stopped in front of it.  Both cars burst into flames and the entire family, plus their three dogs perished in the crash.  Ultimately, the driver of the semi, Josef Slezak, age 36, pled guilty to four counts of motor vehicle homicide and one count of motor vehicle homicide of an unborn fetus.  Josef Slezak had been asleep at the wheel when the crash occurred and there was no evidence he slowed down as he approached the line of stopped traffic.  Testimony in this case demonstrated that Slezak left Midwest Refrigerated Services in Milwaukee, Wisconsin about 3 o’clock in the afternoon Central Time on September 8, 2012 and was on-duty until the early morning hours of the crash in Cheyenne County on September 9th, nearly 15 hours later, which would exceed regulations.  My partner, attorney John Inserra, opines “These cases often require extensive discovery to determine hours of service issues, as well as the safety of the tractor/trailer and whether other federal trucking regulations have been violated in a thorough investigation of the claim.”

In the Tracy Morgan accident, Wal-Mart trucker Kevin Roper failed to slow for traffic ahead and swerved to avoid a crash, ultimately smashing into the back of Morgan’s chauffeured limo bus, killing comedian James “Jimmy Mack” McNair and injuring Tracy Morgan and three other people.  He has been charged with death by auto and four counts of assault by auto.  A New Jersey law allows a person who causes injury after knowingly operating a vehicle after being awake for more than 24 hours to be charged with assault.  Wal-Mart has stated it would “take full responsibility” if it were determined its truck caused the accident, however stated it believed Roper was operating within federal regulations.  Federal data confirms that Wal-Mart trucks have been involved in 380 crashes in the past two years, causing nine deaths and 129 injuries, according to the Federal Motor Carrier Safety Administration.  The Morgan and Schmidt accidents further emphasize the importance of truckers obeying the hours of service regulations not only for their own safety but to avoid tragedies that affect innocent families.

Summer Road Trips: Are your tires safe?

road trip

Summer is here and it is time to plan the family vacation.  When we learn to drive a car, we learn basic vehicle safety.  We are told to check the oil, kick the tires and make sure our fluid levels are steady.  But what about what we cannot easily see?  A vehicle’s tires have been considered to be at the top of the list for safety features in a vehicle.  They help the vehicle maintain steering, stability, traction and, yes, even braking systems.  However, tires can and do fail.  Whether it is from a nail you picked up somewhere along your travels or from abrupt tire failure, this can cause a driver to lose control of the vehicle with devastating consequences, especially at high speeds or on the interstate.  Tire defects can include inadequate tire design, poor manufacturing standards, insufficient tire bonding, use of old adhesives, improper cooking temperatures or even contamination during production, caused by moisture, sawdust, grease or rust.  When a tire fails, you may experience anything from tread separation to a tire blowout.  Tread separation occurs when a tire’s belts rip apart from each other.  A blowout can be caused by a puncture or cut to the sidewall of a tire or by a defective rim that cuts into the sidewall or causes the bead to break, ultimately slipping the tire off the rim.  Low air pressure can also cause a blowout.

There are warning signs, however.  If your vehicle experiences unusual shaking when you are driving, an unusual thumping or vibration, sudden pulling of the vehicle to one side (often referred to as “radial pulling”), or you notice uneven or excessive tread wear; you should have your tires checked.  You should adhere to your vehicle’s maintenance schedule for rotating, aligning and balancing your tires and between maintenance check to ensure your tires are properly inflated and not losing air pressure.  A common way to check your tire treat is by placing a penny between the tread grooves in the tire with Abraham Lincoln’s image facing upside down and forward.  If Lincoln’s hair is partially visible, it is time to replace your tires.  If his entire head is visible, you have lost most of your traction and should have your tires replaced immediately.

Unfortunately, a recent report by ABC News revealed that many recalled tires remain on the road today due to a badly flawed governmental recall system.  When you replace a tire, take note of the tire’s Department of Transportation (DOT) Tire Identification Number (TIN), imprinted on the sidewall of the tire.  The first 7 or 8 digits disclose information regarding the tire size and the manufacturer; while the last four digits reveal the week and year it was made.  You can also search for tire recalls on  The National Highway Traffic Safety Administration also provides an avenue to sign up for updates on tire recalls on their website or by following the agency on Twitter or Facebook.

Driving on safe tires means you can keep yourself and your entire family safe while in your vehicle.  With a few minor precautions, you can make that summer family road trip safer and more enjoyable.

Injured at Work: Do I have more than one claim?


hurt at work

It is Monday morning and you report to your job as a file clerk in a major corporation.  You go to the filing cabinet to get a file and trip over a drawer that was left open again, despite numerous complaints to management about the number of times this has happened and the danger it presents.  You have tripped over this drawer before, which is often left open because the file cabinet doesn’t close correctly and is due to be replaced.  You and other co-workers have put in requisition forms to your supervisor to replace the cabinet, but the budget is tight this year and the company has not replaced it.  Usually you just stub your toe or stumble and catch yourself, but today you actually fall and break your ankle and twist your back while falling.  What are your rights?  Who will pay your medical bills?  Who will pay your salary while you are off work?

In Nebraska, your only option against your employer is workers’ compensation under the Exclusive Remedy Doctrine.   Plock v. Crossroads Joint Venture, 239 Neb. 211, 475 N.W.2d 105 (1991).  Despite the fact that your employer failed to replace the filing cabinet and/or disregarded your complaints and didn’t make any changes in procedure, you will not have a lawsuit against your employer outside of workers’ compensation.  There is no claim for an intentional tort against your employer in the State of Nebraska.  The exclusive remedy doctrine provides a “give-and-take” remedy for addressing work-related injuries in which the employee relinquishes the right to sue an employer in civil court in exchange for specific and guaranteed benefits under the Nebraska Workers’ Compensation Act, regardless of fault.  Benefits usually include payment of medical treatment under a specified fee schedule, as well as “indemnity” payments to help compensate the worker for lost wages.

If you are injured at work, workers’ compensation will generally cover your injuries, with certain limited exceptions such as if your employer has entered into an express contract with a third-party to indemnify the third-party for the loss.    Union Pacific Railroad Co. v. Kaiser Ag. Chem. Co., 229 Neb. 160 (1988).   Railroads are governed by the Federal Employers’ Liability Act  of 1908 (FELA), rather than workers’ compensation, which falls under a different set of guidelines.  Even though workers’ compensation is your exclusive remedy for the negligence of your employer, you may have other claims.  Should your injuries be the fault of a third party, you may be able to seek compensation from the third party.  In this case, the workers’ compensation carrier may still pay your bills, however they are entitled to recovery of their payments from any settlement with the negligent party.  The employer is, however, protected from the third-party defendant’s attempts to seek contribution against an injured employee’s employer or co-workers.

If an employer subject to the Nebraska Workers’ Compensation Act fails to carry workers’ compensation insurance or an acceptable alternative, it loses the protection of the exclusive remedy.  In this situation, an employee can choose whether to accept the guaranteed benefits under the Nebraska Workers’ Compensation Act or to pursue a civil action directly against the employer.  Neb. Rev. Stat. § 48-145(3).   The employer’s non-compliance with the law operates as a Waiver of Exclusive Remedy.

So now that you know who will pay for your injuries, what is your responsibility as an injured employee?  First, you must timely give notice of your injury to your employer.  The law says this must be done “as soon as practicable” in writing, describing the details of your injury including the time, date, place and cause of the injury.  This notice is not necessary if your employer has “actual” notice of the injury, such as if the employer is present at the time of the injury.  Thompson v. Monfort of Colo, Inc., 221 Neb. 83, 375 N.W.2d 601 (1985).  Once your employer is notified of the injury, it is their responsibility to file a First Report of Injury with the Nebraska Workers’ Compensation Court and open a claim.

It is important to note that your claim must be filed within two years of the date of your accident or two years from the last payment for compensation of medical or indemnity (wages).  Neb. Rev. Stat. § 48-137.  If you or a loved one has suffered an injury at work, you should have your claim evaluated by an attorney who handles workers’ compensation and is familiar with the specifications of the Nebraska Workers’ Compensation Act.

Androgel: Is it worth the cardiovascular risk?

pill lawsuits

Low testosterone is a fairly common problem for many men after the age of thirty. As a man begins to lose testosterone, he can experience a number of serious health problems such as depression, a decreased libido, erections which are less pleasurable, low energy levels and decreased endurance. Testosterone gels or testosterone supplements are often a remedy to low testosterone, however physicians also prescribe prescription medications to alleviate symptoms. One such drug, Androgel, has recently been found to increase the risk of testosterone stroke and testosterone heart attack. Although Androgel warns of potential side effects in its literature and on its label, inclusive of high blood pressure, blood clots in the legs and other “serious problems” for persons with heart, kidney or liver disease, the actual risk of this drug includes testosterone death.

In November of 2013, the Journal of the American Medical Association published an article linking Androgel with testosterone death as well as other serious side effects. Prescriptions for low testosterone rose from 208 million in 2008 to over 432 million (including refills) in 2013. In 2011, testosterone therapy was a $1.6 billion business. Although the drug did enjoy some success in improving men’s sexual function, bone density, strength and lean muscle mass, as well as lowering cholesterol and insulin resistance, men who used the drug were found to be thirty percent more likely to suffer a heart attack or stroke or die within a three-year period than men with low hormone levels who didn’t take supplements in the 2013 Journal of American Medical Association study. The men in this study averaged 60 years of age and most had other health problems.   In contrast, most studies funded by pharmaceutical companies concluded no increased risk of cardiovascular problems associated with testosterone drugs.

Whether you believe the Journal of American Medical Association study or the pharmaceutical company studies, five Androgel lawsuits have been filed in the Illinois federal court against the manufacturers AbbVie Inc., and Abbott Laboratories, Inc., claiming the actual risk of serious side effects associated with the drug were not disclosed and concealed by the manufacturers. One plaintiff claims he suffered a heart attack, as well as other physical and emotional damages after taking the drug. The five lawsuits were filed only days after the Food and Drug Administration (FDA) disclosed an investigation regarding the cardiovascular risks of the drug in an alert on January 31, 2014.

If you or a loved one has suffered a heart attack or stroke after taking the drug Androgel, please contact an attorney who handles mass tort claims to have your claim evaluated.