You Should Know: Our Growing Awareness of Traumatic Brain Injury

The movie Concussion opens with the story of “Iron Mike” Webster. Fifteen years as a center in the NFL for the Pittsburgh Steelers had earned him stardom and four Super Bowl rings, but also a host of behavioral and memory problems in his later years. Pittsburgh’s hometown hero gave away or lost all of his money (he couldn't remember which), would often slip into a catatonic state, and eventually became homeless, living out the last years of his life in his truck.

After Webster died at the age of 50 from a heart attack, a young Nigerian forensic pathologist named Bennet Omalu (played by Will Smith) performed the autopsy for the county coroner’s office. Omalu had heard the stories about how Webster had essentially gone crazy in his later years and wanted to know why. After months of studying Webster’s brain, he discovered signs of a new disease marked by severe brain damage. He named it chronic traumatic encephalopathy (CTE) and published a paper that linked the new disease to the repeated concussions suffered by Webster while playing football.

While the NFL rejected Omalu’s report that Webster and other NFL players suffered CTE as a result of playing football, the genie was out of the bottle, so to speak. Several subsequent studies of NFL veterans and other athletes vindicated Omalu’s research and ignited a firestorm of concern and discussion about sports-related concussions. Eventually we would learn that even a single mild TBI can more than double the risk of early-onset dementia.

The Big Denial

View fullsize

Anatomy of an Impact (click to expand)

For years, the NFL ignored extensive medical evidence until finally acknowledging in 2009 that repeated head injures can cause brain damage. Litigation has played an important role in forcing the NFL (and other organizations) to address this growing crisis and change head injury protocol, as documented in this extensive report from the American Association for Justice. Attorneys and Dr. Bennet Omalu joined forces with the family of Mike Webster and other past NFL players to sue the NFL for disregarding medical research and not doing more to prevent TBIs. During this lawsuit, it was revealed that the NFL ignored its own actuarial research showing an estimated one-third of its former players would suffer from brain damage caused by TBIs.

The NFL eventually settled for $765 million, causing a ripple effect throughout the sports world. Many professional, college and high school sports programs have changed concussion protocols and rules of play as a result, and insurance companies have followed suit by requiring stricter adherence to proper procedures for TBI care. The NFL even started its own brain bank to study the brains of former players with the hopes of creating new measures that will combat the possibility of brain damage or CTE. NFL data released ahead of Super Bowl 50 showed that concussions were down 25% this season, mostly due to changes in technique by the players.

The Story Closer to Home

Football is lead cause of head injuries for high schoolers.

In 2006, high schooler Zackery Lystedt went back out on the football field after suffering a concussion earlier in the game. After being struck in the head again, Zackery collapsed with what proved to be a debilitating brain injury. In 2009, his home state of Washington passed the Lystedt Law. This legislation requires annual mandatory training for athletes, parents and coaches. It also requires the immediate removal from sporting events and practices of any athlete suspected of having suffered a concussion until cleared for return by a medical professional. Since Washington took action, every state except Wyoming has enacted a “When in Doubt, Sit Them Out” law. Compliance to these guidelines has increased from 50% in 2007 to 80% in 2013.

That’s the good news. The bad news is that very few states have enforcement mechanisms to make sure these laws are being followed, and only six states require parental notification of a child’s TBI. So for parents, athletes and coaches, vigilance is still the first line of defense. Know the signs and protocol for dealing with TBI (review here) and don’t delay seeking medical attention. Note that many other contact sports cause head injuries, as outlined in the chart above, not just football. Automobile crashes and other blunt trauma to the head account for many times more.

 This article appeared in our February 2016 "You Should Know" e-newsletter. 

Crabtree, Carpenter & Connolly Announce Recognitions

Tracy K. Lischer

Guy W. Crabtree

Crabtree, Carpenter & Connolly, PLLC is pleased to announce the recent recognition our lawyers have received from our peers and the business community. 

Guy W. Crabtree and Tracy K. Lischer were recently selected for inclusion on the 2016 North Carolina Super Lawyers list; firm Partner Mr. Crabtree as a Top Rated Personal Injury – Plaintiff Lawyer, and Ms. Lischer, Of Counsel, as a Plaintiff Lawyer in Personal Injury – Medical Malpractice. They have been included in Super Lawyers each year since 2008. 

Super Lawyers is a research-driven, peer-influenced rating service of outstanding lawyers who have attained a high degree of professional achievement and peer recognition. The patented selection process combines peer nominations, independent research evaluations and peer evaluations by practice area. Each year no more than 5 percent of the attorneys in the state are selected for the Super Lawyers list. 

Crabtree, Carpenter & Connolly, PLLC provides innovative and effective legal representation to injured individuals as trial lawyers in personal injury and wrongful death cases involving automobile accidents and medical malpractice. They are also trial lawyers who represent families and provide legal expertise to individuals and companies in commercial and business disputes, and to property owners whose property has been contaminated by toxic chemicals in their groundwater.  

You Should Know: Unregulated E-Cigarettes Mask Hidden Dangers

E-cigarette use among teens tripled from 2013 to 2014, alarming health officials.

E-cigarette use has skyrocketed in the last few years. About 10 percent of U.S. adults now vape, as the practice is called, almost four times more than the 2.6 percent reported by the government in 2013. And that growth means big business: Sales are estimated at $3.5 billion for 2015 versus $2.5 billion in 2014 and are projected to grow 25 percent annually through 2018.

E-cigarettes use a heating element to vaporize liquid nicotine that is then inhaled by the smoker. Many smokers view e-cigarettes as a way to quit smoking traditional cigarettes, avoid some of the health hazards caused by regular cigarettes, or as an alternative to smoking in public places that ban the practice.

Click to enlarge infographic.

No Regulations or Warnings

So far e-cigarettes are entirely unregulated by the U.S. Food and Drug Administration, a fact that surprises many users. Both the vaporizing devices and the nicotine-based liquid itself are unregulated, so manufacturers create and disperse products with no oversight. There are already more than 500 different brands of e-cigarettes, with over 7,700 flavors of nicotine liquid. The amount of nicotine in the liquid, as well as other dangerous chemicals or carcinogens, are not monitored and are not required to be represented accurately on the packaging. Nevertheless, research cited by the American Lung Association highlights the significant health risks posed by the nicotine and other hazardous chemicals found in e-cigarettes.

Use Triples Among Teens

The fastest growing segment of e-cigarette users are teens and young adults. Between 2013 and 2014, e-cigarette use tripled from 4.5 percent to 13.4 percent for teens, followed by an increase among middle schoolers from 1.1 percent to 3.9 percent during the same period.

Officials with the Centers for Disease Control and Prevention expressed extreme alarm at the findings, pointing out the harm nicotine exposure can pose to brain development among young people along with the potential for long-term addiction. Public health advocates also fear that unregulated advertising in print and on television by e-cigarette companies is making the product look “cool” and is driving increased use among young users.

Not Working to Help Smokers Quit

For those hoping that e-cigarettes might help them stop smoking entirely, a new study suggests that the opposite may be true. Researchers in California found that e-cigarette users were less likely than those who never used e-cigarettes to quit or cut down on smoking cigarettes. “We hypothesize that maybe [users] are getting higher doses of nicotine, and so it becomes less likely they’re able to quit,” reported the researcher.

Many vapers also practice dual use, meaning they smoke traditional cigarettes but then use e-cigarettes where traditional smoking is banned. This makes it more likely that people addicted to nicotine can get a fix whenever they have the desire, thus actually increasing the amount of nicotine they are ingesting every day.

Exploding E-Cigarettes Cause Serious Injuries

Another serious problem with e-cigarettes can now be added to the list of hazards. A growing number of users have been injured by e-cigarettes that explode due to unstable lithium-ion batteries. Recently a 29-year-old California man suffered a broken neck, facial fractures, burns to his mouth and shattered teeth after an e-cigarette exploded while he was using it.

Although these incidents are rare, federal officials report 25 such incidents between 2009 and 2014. Because there are so many makers of e-cigarettes and none are regulated, shoddy manufacturing practices can go unchecked. Federal transportation officials have already banned e-cigarettes from packed luggage for fear of explosions inside the luggage hold. 

 This article appeared in our January 2016 "You Should Know" e-newsletter. 

Jamion Cash Not Only Makes Baskets, He Makes News

Jamison Cash has kernicterus (cerebral palsy), a preventable neurological disorder caused by untreated newborn jaundice. Tracy Lischer, Of Counsel, and Charlie Carpenter, Partner, handled his case when he was a baby. Winning Jamion’s case was an important part of insuring his future. Now he is playing basketball for Roxboro and making his baskets one-handed.

Watch this talented, happy teenager score for his team!

From ABC 11 WDTV-TV:

You Should Know: America’s 2015 Top Safety and Justice Stories

It was a busy year for those who fight for the health, safety and legal rights of all Americans. While this short list is by no means exhaustive, here are some of the top stories we were watching in 2015:

1. Forced Arbitration Is Forced Injustice

Many Americans are signing away their right to a day in court.

There’s a legal land mine buried deep in thousands of consumer and employment contracts called a “forced arbitration” clause that threatens our right to hold major corporations accountable for wrongdoing. This loophole prohibits Americans from taking companies to court and instead forces them into secretive arbitrations, which are typically stacked in favor of the company. An investigation by The New York Times has focused renewed scrutiny on the harm caused by forced arbitrations in claims of medical malpractice, sexual harassment, hate crimes, discrimination, theft, fraud, elder abuse and wrongful death. You can join others in petitioning Congress to ban forced arbitration right here.

2. Food That Sickens Rather Than Nourishes

Major cases of food contamination at Chipotle Mexican Grill and Blue Bell Ice Cream this year illustrate the growing problem of foodborne illness. According to a new report from the American Association for Justice, 48 million people fall sick, 128,000 are hospitalized and at least 3,000 die each year from foodborne illnesses. Questionable production techniques and cost-saving measures, combined with weak state and federal oversight, threaten to make the situation worse. Litigation helps shed light on dangerous practices and hits companies back hard with large financial penalties and damaged reputations.

3. Cost Savings Creates Deadly Defect in Guardrails

Trinity Industries installed 220,000 guardrails throughout the country that may spear cars on impact.

Trinity Industries modified its highway guardrails to save money but instead created a deadly hazard, all of which didn’t come to light until it was sued by a whistleblower and those who suffered injuries as a result of the defect. Rather than slow down a vehicle when impacted, the Trinity guardrails spear through the passenger compartment. A federal judge recently ordered the company to pay $663 million in penalties for concealing the design modification from federal officials. At least 14 lawsuits blame the guardrails for causing injuries in crashes, including five deaths, according to The New York Times.

4. Exploding Airbags Seriously Injure Motorists

Airbags made by Takata and installed in vehicles from 12 different automakers can explode when deployed, injuring or even killing occupants. A report published in The New York Times alleges that Takata knew of the defects for years but failed to take action. Since then the National Highway Traffic Safety Administration (NHTSA) has recalled 19 million vehicles in the United States, fined Takata for failing to cooperate with its investigation and handed down a record civil penalty of $200 million.

5. New Regulations Protect Nursing Home Residents

Proposed regulations would improve nursing home safety.

The federal watchdog for nursing home safety has proposed sweeping new regulations designed to improve patient care and safety for more than 1.5 million Americans living in long-term care facilities. Such regulations are long overdue, according to patient safety advocates, family members and nursing home lawyers, who report numerous cases of abuse and neglect. If the regulations are finalized, “unnecessary hospital re-admissions and infections would be reduced, quality care increased and safety measures strengthened,” according to the Centers for Medicare & Medicaid Services.

6. VW Trumps GM as Most Untrustworthy Car Maker

The scandal at Volkswagen over rigged emissions in more than 11 million cars worldwide reminds Americans once again that car manufacturers are often willing to jeopardize the health and safety of consumers to protect their profits. News of the VW scam comes just over a year after GM admitted it had covered up a defect in an ignition switch that has been blamed for at least 124 crash deaths. Both companies might have gotten away with their misconduct if not for a wrongful death lawsuit (in the case of GM) or a chance discovery by a small research team at West Virginia University (in the case of VW). Meanwhile, some in Congress are considering a bill that would bail out VW: learn more and tell Congress to vote no here.

7. Defective Products Create “House of Horrors”

Toxic drywall, failing sprinklers, leaking windows and even bursting toilets ... these are just a few of the defective and dangerous products that are featured in the “House of Horrors,” an informative infographic from the American Association for Justice. Each case demonstrates how consumers have fought back against shoddy manufacturers through class-action lawsuits, a right that is threatened by forced arbitration clauses as discussed above.

8. Toys Still Injuring Kids

Nearly 260,000 kids visit emergency rooms each year for toy-related injuries, according to the Consumer Product Safety Commission. And sadly, 11 children under the age of 12 died while playing with toys in 2014. The most common injuries include poisoning, choking, ingesting magnets or falling from riding toys. While regulators, safety advocates and the parents of injured children have succeeded in ridding store shelves of many unsafe toys, too many still get through. Learn more.

 This article appeared in our December 2015 "You Should Know" e-newsletter. 

Guy Crabtree Argues Case Before The North Carolina Court of Appeals

Partner Guy Crabtree recently appeared before the North Carolina Court of Appeals along with Co-Counsel, Douglas Maynard, to argue a case of statewide significance. 

Guy is lead counsel in the case of BSK Enterprises vs. Beroth Oil Company. The case involves the petroleum contamination of BSK’s groundwater caused by leaking underground storage tanks owned by Beroth Oil. Guy and Doug, along with Mark Fogel, tried the case in Winston-Salem last year. The jury returned a verdict for BSK of $1.5 million to clean up the BSK property. The judge reduced the jury award to $108,500.00, the amount the jury determined the BSK property had been reduced in value by the contamination. Guy appealed. The issue to be decided by the court is what is the proper measure of damages in a groundwater contamination case when the cost to clean up the property greatly exceeds the diminished value of the property.  This is a case of first impression in North Carolina. That means this particular issue has not yet been decided by our courts.  

We should have a decision within the next several months.  The decision will impact property owners all over our state. Good luck to Guy, his client and legal team.