California Injury Attorney Blog

California Court of Appeal Rules on Wage and Hour & Overtime Pay

Tue, 31 Jan 2012 10:20:33 -0800

In a recent wage and hour case, the California Court of Appeal, Fourth Appellate District, issued a decision in a matter involving whether certain employees should be exempt from overtime pay requirements because their income was argued to be derived from commissioned sales. In Muldrow v. Surrex Solutions Corporation, the court determined that a class of workers, known as senior consulting service managers, were commissioned sales and were not entitled to payment for overtime in this instance.

As we have shared in prior posts, the way an employer classifies a worker, does not determine whether that worker is entitled to overtime pay and other benefits of employment. Sometimes employers try to avoid compliance with California's labor laws by misclassifying them to avoid paying the wages workers should be paid. In this case, the question was whether the employees were commissioned sales people which would exempt them from the benefit of overtime pay.

The plaintiffs in this case worked to fit job candidates to jobs. Some of the matches were made using cold calling and some were made using Surrex's databases. The plaintiffs were only paid commissions if the match was made and stuck. In certain instances, the employment candidates were essentially kept by Surrex itself as consultants. They were effectively loaned to Surrex's clients and in these placements, the plaintiffs were paid from a formula that resulted in the "adjusted gross profit" that Surrex received for the work.

Plaintiffs contended in this case that they really did not "sell" a product or service and should not be categorized as sales people. They took the position that their pay should not be categorized as "commissions." The time they spent identifying and recruiting new candidates was not sales in their view.

Surrex categorized them as commissioned sales people exempt from overtime pay. If they were categorized as other than sales, the commissioned sales exemption that precluded them from receiving overtime pay, would not apply.

The court's view, like that of the trial court, was that the activities performed to make these matches was sales related. The managers were deemed to be performing essentially sales activities and were exempt for overtime pay requirements.

Arguing that the formula for their compensation was complex and did not relate to the services sold and could not be deemed commissions, the plaintiffs sought to secure the payments they believed to be warranted under the law. The court did not agree and found that the commissions were related to the price of services sold. This conclusion led to the court's view that these were "commissions for purposes of the commissioned employees exemption (Cal.Code. Regs., tit. 8, § 11070, subd. (3)(D))."

It is possible that the California Supreme Court will accept this case for review given the importance of the decision and implications for workers who could be deemed as performing sales functions. Requirements such as overtime pay, wage and hour issues, rest breaks and related claims provide important protection for workers.

Hersh & Hersh represents consumers, workers, patients and accident victims. If you have any questions about your employment situation or whether you are being paid properly by your employer, please contact our law firm to speak confidentially and for no fee at all, with one of our lawyers.

Muni Driver Criminally Charged in Pedestrian Death

Tue, 24 Jan 2012 07:52:44 -0800

Earlier this week, a San Francisco Muni bus driver was charged with misdemeanor vehicular manslaughter under California Penal Code section 192(c)(2) for an accident that occurred last August. A criminal charge in a case like this is somewhat unusual. The charge of misdemeanor vehicular manslaughter carries a jail term of up to one year.

What happened last August in a Castro district intersection is tragic. The bus, which was not carrying passengers at the time, was traveling to a new assignment when it made a left turn and struck a female pedestrian who was nearly to the curb. According to a report in SFGate, the driver was relatively new to Muni and was, in the District Attorneys' view, negligent in not seeing the young woman in the street. The deceased pedestrian was new to the city, she had moved here from Atlanta and was working for a local business.

Neither alcohol nor drugs were involved in the tragic accident. Sadly, it is believed that the pedestrian was distracted and did not see or hear the bus. In addition, the bus was not on a normal route, as the bus driver had determined his own route across town to get to his new assignment.

Whether there was a failure of communication between the driver and the central communications personnel as to the best way for him to get to where he needed to be to relieve a congested route, is not clear. This might become more clear as this matter goes forward in the courts.

Only one other pedestrian was killed last year by a Muni vehicle. According to reports, in the previous five years, there were an average of four to five pedestrian deaths involving Muni vehicles. In 2009, there was only one death.

When tragic events occur in our lives, often we need the support of experts who can help traverse legal and medical issues. The San Francisco injury law firm of Hersh & Hersh has helped families coping with serious accidents and wrongful death for four decades. If you have a situation that you would like to talk with us about, please contact our law offices for a free consultation with one of our lawyers about your legal rights.

NTSB Says Hands-Free Isn't Enough

Tue, 17 Jan 2012 09:26:06 -0800

The National Transportation Safety Board has been very clear with the public over the past few years about the dangers of using tech devices while driving. Recently, the agency asked that all states ban both calling and texting while driving. But there is something very new about this recommendation. The Board went beyond the previous recommendations and has asked states to include even hands-free devices in the ban.

California has always been a leader when it comes to safety, but we might be surprised to learn that the feds say banning all devices is really the best approach to safety. States have different laws in this area. California allows hands free conversations, but bans texting or hand held calls while driving. This law can be found at California Vehicle Code section 23123.

Probably most of us believe that when we are using a hands-free device while driving we are safe enough. After all, we talk with passengers in our vehicles while we are driving. However, there is reason to believe that there is a distinction with a difference when it comes to talking to someone while using a device. Our behavior changes in subtle ways and when we talk with a passenger in our vehicle, that person can also pay attention to the road and warn us of hazards. A person on the phone with us cannot do that.

Although the NTSB does not have the authority to make the states enact a prohibition on the use of mobile devices -- some states might consider enacting a ban given the strong recommendation made by the feds. The poster case for this is a terrible tragedy that occurred a couple of years ago. Two people were killed and 40 were injured when a person who had been texting while driving, gave rise to a huge and tragic pile-up accident in Missouri. With more accidents resulting from texting and driving, one can only expect the focus on how to stop this practice, will become more in focus over time.

What the NTSB wants us to do is concentrate on our driving. As noted in the statistics from the agency, over 3.000 people die annually due to distracted driving. The agency warns that a routine trip can become tragic in a distracted driving situation. If we put down these devices, many deaths and injuries would be avoided.

If you have been injured in an auto or other motor vehicle accident, the California injury lawyers of Hersh & Hersh can help evaluate your legal rights. Contact us for a free consultation with one of our experienced personal injury and accident lawyers. We have helped many injured victims in our decades of law practice and we want to help you and your family.

Teen Drinking Tragedy Leads to Adult's Arrest

Thu, 12 Jan 2012 08:17:00 -0800

Earlier this week, an Alameda woman was arrested for having allegedly assisted a teen in buying alcohol late last year. The teen was a friend of the woman's child.

Hours after the alcohol was purchased, the teen was dead. She had consumed alcohol and was a passenger in a vehicle that was driven by another intoxicated teen who had been at a party where, presumably, the alcohol was consumed.

As California auto accident lawyers, we are aware of the terrible impact that drinking and driving can have. Families suffer tremendously when a loved one is injured or tragically killed as a result of this dangerous behavior.

The Alameda woman has been arrested on suspicion of furnishing alcohol to a minor. The South San Francisco store clerk and co-owner where the purchase was made has also been arrested. The teen is alleged to have purchased the alcohol, but this is disputed by the store clerk's attorney who reportedly told SF Gate: "[t]here's no evidence that any alcohol was sold directly" to the teen. He noted that the adult made the purchase.

This tragedy unfolded in the early morning hours of the day after the alcohol was purchased. The teen was riding in a vehicle driven by a 19-year-old who was driving at 60 miles per hour on Highway 101. He was unable to stop in time to avoid traffic that was stopped due to a previous crash. Veering at a high rate of speed into the next lane, he rear-ended the car in front of his vehicle. The deceased teen who was riding in the back seat of this vehicle was thrown into the front of the car. She died later at a local hospital.

The teen driver's blood-alcohol level was 0.15 percent, nearly twice the legal limit. He has now pleaded no contest to several charges that include felony drunken driving causing injury, as well as misdemeanor vehicular manslaughter without gross negligence. These crimes carry a sentence of up to four years and four months in prison.

Impaired judgment is only one impact of drinking and driving. Mothers Against Drunk Driving has been battling this behavior for years and has gathered statistics on its website state by state and keeps these up to date. California ranks 21st in DUI deaths nationally with 29 percent of the our fatal road deaths attributed to DUI. California requires ignition interlocks for all convicted drunk drivers in only four of our counties: Alameda, Los Angeles, Sacramento, and Tulare.

The San Francisco law firm of Hersh & Hersh has a long history of improving the public's health and safety. We have a long and stellar history of creating protections for victims of injury.

If you have any questions about our representation of victims and their families in personal injury and auto accident cases, contact our California office to speak directly with one of our attorneys.

California Injury Attorney Blog -- Year in Review

Sat, 31 Dec 2011 09:58:03 -0800

This past year has been very eventful for the San Francisco, California injury lawyers who sponsor the California Injury Attorney Blog. We have represented injured consumers for four decades, in cases in a broad array of matters, involving workers' rights in wage and hour claims, defective medical devices such as defective hip replacements, and accidents of all kinds that have adversely impacted the lives of our clients. We are gratified by the work we do to help our clients through the most difficult experiences of their lives.

Over this past year, we have brought our readers stories and information about serious potential for injury related to medical devices, drugs and other products. We have told you about infant and child safety and recalls related to products that have, or might, cause injury and harm to kids. We have informed you about the victims of defective medical devices, such as defective DePuy Hip Implants, and pharmaceuticals.

We informed you about the hearings of an FDA Advisory Committee in Washington DC that concerned the injuries to women in the use of transvaginal surgical mesh for pelvic organ prolapse and urinary stress incontinence. We attended these hearings to keep you apprised and up-to-date on the status of this growing area of concern for women, as failures and injuries of this surgical method were found to carry too many risks. We told you about the alternative ways of making these repairs for women suffering from various medical issues that do not lead to the great potential for new injuries from surgery.

We successfully litigated several very important wage and hour cases, including those involving Terminix and Marcus & Millichap. In these actions, we were able to secure employees of these companies the wages they were due and had not been paid.

In the Terminix matter, we presented as co-counsel, a landmark case that involved the company's failure to provide rest breaks and required inspectors to work more than the number of hours per day allowed under California law. The inspectors also worked nights and weekends without additional compensation, which was a failure to pay overtime wages. The jury returned a verdict that protected workers' rights.

We settled a major case involving a man who suffered a Mild Traumatic Brain Injury that was caused by a rear-end collision. The significance of this matter has broad implications for those who have been seriously injured, but whose injuries in the past have been ignored because, for example, they do not show up on an MRI. We helped determine and prove that this man had suffered major memory loss, impaired cognition and other debilitating problems, due to a rear-end collision. This injury is only now becoming better understood by experts in brain injury.

We will continue to dedicate our law practice the protection of consumers and the public. If you have any questions about what we do or how we might help you, please contact our law firm to speak with one of our lawyers. Our consultation on any injury or consumer matter is free of charge.

The lawyers of Hersh & Hersh wish all our readers a very happy and healthy 2012.

Wal-Mart Removes Infant Formula After Infant Death

Mon, 26 Dec 2011 10:08:50 -0800

As consumer and injury lawyers, we have been at the forefront of protecting consumers, including children and infants. Just before the Christmas holiday, a number of national retailers joined Wal-Mart Stores, Inc. in removing a specific batch of Enfamil Newborn formula from shelves and distribution centers.

The reason? A newborn baby in Missouri died after consuming the formula from lot number ZP1K7G which was purchased by the baby's parents at their local Wal-Mart in Lebanon, Missouri.

The infant contracted and died from what medical professionals have determined to be a rare bacterial infection. The manufacturer of the formula Mead Johnson Nutrition Co., is reported to have tested the formula prior to shipment, but no bacteria was found. Additional tests are being performed by the manufacturer which has not recalled the product.

Now several other companies have determined that this particular lot of Enfamil Newborn should be removed from their store shelves as a precaution. Walgreen Co. and Supervalu Inc. are among the stores that have decided to take this step. These retailers operate such well known retail stores as Shaw's in New England, Shop 'n Save in St. Louis and Acme in New Jersey and Philadelphia.

Like other families that we have represented, we can only imagine the horrific sorrow that the parents of the infant are experiencing now and our hearts go out to them. The physicians involved in this medical tragedy have determined that the baby passed away from a bacterial infection that is called Cronobacter sakazakii. This bacteria is known to found in such plants as wheat and rice. It also can live in dried milks and powdered formulas which many consumers might assume would not harbor a potentially deadly bacteria.

Various federal agencies are now involved in investigating the situation. Specifically, the Food and Drug Administration, the Centers for Disease Control, as well as the Missouri Department of Health are trying to determine what happened in this case. They have various testing protocols now underway using not only the specific formula given to the infant by his mourning parents, but other related formulas, such as those sold as a liquid as well as the powdered version. Although there is no suspected relationship, another infant became ill after consuming powdered formulas, but that baby recovered.

California's preeminent consumer rights law firm, Hersh & Hersh has led the way in infant and child safety. We were involved in the largest crib recall in the nation's history and other critically important protections for children and infants. Please contact our office for a free consultation with one of our experienced lawyers, for any situation involving defective products and devices, medical implants, such as transvaginal mesh, infant safety, motor vehicle accidents and other consumer or injury matters.

Who Cares? Obama Wants Fair Pay for Home Health Care Workers

Thu, 15 Dec 2011 09:42:14 -0800

For many years, the health care workers that provide home care to the elderly and disabled have been unprotected under wage and hour laws. Yesterday, President Barack Obama announced that this situation is "inexcusable" and has called for a major change in the support provided to these caregivers.

Home health care workers that care for the elderly and disabled often receive less than the minimum wage. The law does not require otherwise which means there is nothing these workers can really do to receive fair pay for their hard and important work. A total of 29 states do not mandate the payment of minimum wage and overtime for home health care workers.

Many of us have elderly parents or disabled family members who need this type of in-home care. President Obama has endorsed a new Labor Department rule that would require home health care workers to receive minimum wages, plus overtime.

Since the labor force involved in this type of care is actually fairly large -- and a total of 2 million health care workers are being employed without the benefit of wage protections, the change is going to make a big difference for these workers. During the announcement, the President was flanked by the hard working men and women who take care of our family members in their homes. Describing them as working "their tails off" he noted that fair pay should be provided to them.

With an aging population, more and more Americans will need home health care. It is very important that all workers are paid fairly and are protected under the law. Hersh & Hersh applauds this effort on the part of the White House to ensure fair wages for American workers. In our experience as wage and hour lawyers, it is our honor to have helped many workers receive the pay they are entitled to under the law. If you have a concern that you might not be receiving appropriate pay, please contact our San Francisco wage and hour law firm for a free consultation with regard to your rights. We have helped many workers receive their proper wages and benefits.

Three Caltrain Pedestrian Deaths in One Week on Peninsula

Sun, 04 Dec 2011 11:26:28 -0800

The San Francisco Bay Area has significant public transportation system assets. WIth such systems as BART and Caltrain, many motorists are able to get to work and play without getting into a car and off our congested roads to use public transportation instead.

As California personal injury lawyers, we have represented injured victims and their families for decades. We want to help you and your family with safety over the busy holiday season. This week we focus on train safety.

Tragically, this past week two people died in different incidents on Caltrain tracks. One death occurred in the mid-morning hours at one of the Palo Alto stations. Another person died in the same station just last week. In this incident, a northbound "baby bullet" train struck the victim at the California Avenue station. Shortly after this incident, a southbound train hit a pedestrian near the Menlo Park station and that individual was also killed. The prior week, another person was struck by a train at the California Avenue station.

According to Caltrain, thus far this year there have been a total of 16 deaths on the train tracks. In 2009, 19 people were killed on Caltrain's tracks and in 1995 the highest pedestrian death toll for the agency reached 20.

We do not know the circumstances surrounding these tragic deaths. The Caltrain website has a great deal of information about how to stay safe around train tracks. Given the holiday season and the fact that there will be instances in which the public takes the train rather than driving ... a good choice if drinking is involved ... we want our readers to review the suggestions for avoiding train track injury or death that are found on the Caltrain website.

The trains are very large and heavy and they take more than one half-mile to stop. Additional trains can be put on the schedule due to ball games and other events which means that you cannot rely on the schedule to determine whether you can safely cross a track. A train could come at any time. Caltrain cautions that pedestrians should use only the public crossings to cross a track which are designated.

The use of cell phones and headphones is so common now that it is necessary to remind ourselves that a text can wait and it is very important to remain very alert around train tracks. If you are near a track, it is very important to look in both ways, like on a street crossing, before crossing the train tracks. Do not cross the tracks in any location other than a public crossing. These are marked.

Trains can be difficult to hear says Caltrain, particularly when they are in the "push" mode going northbound which means the engine is at the back of the train pushing it forward.

The trains reach very high speeds of up to about 79 miles per hour. As noted by Caltrain, at top speed a train covers the "length of a football field in less than three seconds."

As for drivers, anyone living near the Caltrain tracks or driving around them, has likely seen vehicles that sit on the tracks while they wait for a red light. This is very dangerous. Drivers must ensure that they do not travel across the tracks unless there is enough space to do so without ending up stopping on or near the track. Remember the trains need more than just the space of the track to pass. They are wider than the tracks themselves. A train could come along at any time at high speed and your vehicle could be in its path.

If you or a loved one has been injured in an accident of any kind, the San Francisco personal injury lawyers of Hersh & Hersh are available for a free consultation to evaluate your legal rights. Please contact our California injury law firm to talk directly with a lawyer about your case.

Child Injuries and Toy Safety During the Holidays

Wed, 30 Nov 2011 08:07:26 -0800

As a leading California and national law firm in the area of child and infant safety, we begin our series on holiday safety -- this time our focus in on toys. As parents and grandparents, aunts and uncles go out to purchase toys for the children in their lives and as we donate toys to toy drives, it is very important to pay attention to what we are purchasing for kids.

According to the U.S. Consumer Product Safety Commission, "stronger federal rules are making a positive impact and restoring confidence in the safety of toys." Toy safety at this time of year is vital to the health and happiness of our children. The federal government cannot totally stop manufacturers from making unsafe toys that end up harming children, but they are trying to make toys safer and we applaud that effort. Most often, recalls happen because several children have already been injured and we learn that a toy or crib or crib bumper is unsafe after the fact.

The federal agency has noted that safeguards are now in place for important areas of child safety. For example, lead content has been limited, voluntary toy standards are now mandatory standards, there is now third party testing and certification required for toys designed for children under 12, there are new limits for cadmium in toys, and the agency is now working closely with Homeland Security to track and seize dangerous toys coming into the country from other countries.

The statistics show that toy recalls have declined since 2008 in which there were 172 toy recalls. In 2011, there were 34 toy recalls; in 2010 there were 46 and in 2009 there were 50 toy recalls. Choking deaths were up slightly in the past couple of years. So parents must be vigilant to ensure that their older children's toys are not within reach of their younger children. Holiday wrapping should be kept away from small children as well.

One rule that we all must remember -- keep balloons, small balls, small toys and toy parts away from small children which can be forgotten in the moment of holiday gift giving excitement. Something that parents and grandparents should also know is that non-motorized scooters are the one "toy" associated with the most injuries. These injuries range from such injuries as abrasions to lacerations. Safety, such as helmet use, is important to child safety with these scooters. Finally, be aware of battery chargers and their use. They can get warm and cause injury. Kids need to be supervised in charging batteries.

San Francisco, California's Hersh & Hersh has been at the forefront of child safety for decades. We were instrumental in the national recalls of unsafe cribs and basinettes. We have represented families whose children have been injured, or have tragically died due to an unsafe product. Please contact our law firm for a free consultation with one of our lawyers with regard to any injury or child injury matter.

That's Settled. Oracle to Pay $35 Million in Unpaid Overtime Pay.

Mon, 21 Nov 2011 11:23:02 -0800

This past June, the California Supreme Court ruled that Oracle employees who resided in Colorado and Arizona, were entitled to overtime pay under California's wage and hour laws. The plaintiffs, who travel the country training users of Oracle's software applications, had taken the position that they were not teachers as the company had said.

By classifying these workers as teachers, the company was not required to pay overtime to these workers. Under California law this put them in a classification of "exempt" workers. The plaintiffs sought overtime pay, claiming that they were in fact "non-exempt."

Oracle's position was that California law was not applicable to these employees. They said the home states of these employees should control their rights to overtime pay.

The software company also argued that if non-resident employees were to be classified as "non-exempt," employers would be unduly burdened by being required to apply California wage and hour laws in many employment situations. Finally, Oracle took the position that the laws of the state of residency should control and that in this case, the laws of Arizona and Colorado were in conflict with that of California's laws.

But, the California Supreme Court disagreed with Oracle and ruled against them. As a result, Oracle has now reached a settlement to pay $35 million to over 1,700 employees to resolve the class-action. This settlement has been preliminarily approved by the Alameda County Superior Court. The case has been winding its way through the courts for many years.

Employers who attempt to misclassify workers to avoid paying them proper wages eventually must pay for their failure to follow the laws of California. Often, these cases become class actions as they involve many plaintiffs. These cases involving wage and hour and related claims is an area of expertise for the lawyers of Hersh & Hersh. We have recently handled important matters involving many workers in cases involving Terminix and Marcus & Millichap. For more information about our law practice, please contact Hersh & Hersh for a free consultation with one of our litigators on your employment situation.

Ninth Circuit Upholds Class Certification In Pharmaceutical Securities Fraud Case

Wed, 09 Nov 2011 08:43:37 -0800

The Ninth Circuit Court of Appeals has just issued a decision that upholds the class certification for the plaintiffs in a 10b-5 securities fraud action. The case involves Amgen, a pharmaceutical company. In order to get certified as a class, the plaintiffs must show that the element of reliance is present and common for class members under Federal Rule of Civil Procedure 23(b).

Under United States Supreme Court decisions, this element can be shown by a "fraud-on-the-market" presumption. This means that a buyer is presumed to have relied on the truth of public information that is reflected in the market price of a security. This presumption allows a plaintiff seeking class certification to show reliance where it would be otherwise very difficult, if not impossible, to do.

The Ninth Circuit has joined two other circuit courts of appeal (the Third and Seventh) to hold that a plaintiff must show two things to invoke the fraud-on-the-market presumption. These are first, showing that the security in question was traded in an efficient market; and second, showing that the alleged misrepresentations were public. Neither of these requirements were contested in the case.

With regard to the element of materiality of the misrepresentations, the plaintiffs need only allege this plausibly, rather than prove it at this stage. This is also true, according to the court, of the rebuttal of fraud on the market.

In the case before the court, the plaintiff did properly allege that several public statements made by the defendant pharmaceutical company were false and material. In the court's view, this "coupled with the concession that Amgen's stock traded in an efficient market, ... was sufficient to invoke the fraud-on-the-market presumption of reliance. The district court did not abuse its discretion in certifying the class."

The California consumer law firm of Hersh & Hersh has handled major class action litigations over many decades. Please contact our law firm to talk with one of our lawyers at no charge to you, about any matter involving defective drugs, defective medical devices, personal injury, motor vehicle or other related injuries or matters.

Terminix Company Employees Win Wage and Hour Jury Verdict

Wed, 02 Nov 2011 17:00:10 -0800

The lawyers of Hersh & Hersh who sponsor the California Injury Attorney Blog served as co-counsel in a landmark win in federal court this week involving wage and hour claims. A federal jury rendered a verdict that is a victory for workers' rights.

In this case, the termite inspectors employed by Terminix (which is part of Terminix International, Inc.) presented a case to the jury that involved the company's failure to provide rest breaks, required work for greater than the number of hours per day allowed by California law and resulted in wage and hour violations. The inspectors also worked nights and weekends without additional compensation, which amounted to a failure by the company to pay overtime wages. This is not permitted under California law.

In September, we posted on a related case in which a class action was settled for $1.5 million that involved 1200 termite inspector trainees who were working in California. A United States District Court Judge approved a $1.5 million settlement, but several of the employees must make their claims in arbitration.

Overtime pay claims involving wages and hours are generally settled by companies. But when profits are carried on the backs of workers, companies might be reluctant to settle out of court and take their chances litigating the matter in court.

These cases will help all workers who are not being paid according to the laws that protect them. Such requirements as overtime pay, wage and hour issues, rest breaks and related claims will perhaps be taken more seriously by other employers who are not following the laws and regulations that ensure the protection of workers in many cases.

Hersh & Hersh is proud to continue its longstanding history of groundbreaking litigation in all areas that protect consumers, workers, patients and accident victims. If you have any questions about your employment situation and whether you are being paid properly by your employer, please contact our law firm to speak confidentially and for no fee at all, with one of our lawyers.

Crib Safety -- News to Some, Not to Us

Thu, 20 Oct 2011 10:31:10 -0800

As infant safety lawyers, we have litigated what are always tragic cases involving infant death. In the past several years we have been at the forefront of infant product recalls involving cribs and basinettes and have posted on the dangers of crib bumpers.

In the early 1990's. the American Academy of Pediatrics (AAP) issued a recommendation that infants be placed on their backs to sleep. This is said to have reduced the number of deaths from Sudden Infant Death Syndrome (SIDS). However, infants continued to suffer tragic deaths in increasing numbers while sleeping in cribs. These deaths have been caused by such things as suffocation and entrapment due to defective cribs, basinettes and the like.

Earlier this week, the AAP has taken a step that we have been advocating for some time. We have represented unsuspecting parents whose babies needlessly suffocated in cribs due to bumpers, positioners and other materials left in the crib.

The AAP has now said put nothing in the baby's crib, but the baby. This means no pillows, blankets, bumpers or other things that could entrap the baby or cause suffocation.

In a policy statement called "SIDS and Other Sleep-Related Infant Deaths: Expansion of Recommendations for a Safe Infant Sleeping Environment," the AAP has taken further steps to protect infants.

Updated safety recommendations include the importance of breastfeeding and immunizations that are both said to reduce SIDS. In addition, bumper pads should not be used in cribs. They AAP says there is simply "no evidence that bumper pads prevent injuries, and there is a potential risk of suffocation, strangulation or entrapment."

Sadly, we are well-aware of the dangers of crib bumpers, having represented families dealing with the tragic death of infants who have been injured or suffocated in cribs with bumpers and other causes.

Other recommendations include the importance of placing babies on their backs when putting them to sleep, using a firm mattress for regular sleep, putting babies to sleep in their parents' room but not in the same bed, removing all soft objects from the bed such as blankets and toys, not using wedges or baby positioners, using awake time for tummy time to avoid babies developing a condition that results in the baby having a flat head.

California's preeminent consumer rights law firm, Hersh & Hersh has led the way in infant safety, having been at the forefront of the largest crib recall in the nation's history and other important infant safety actions. Please contact our office for a free consultation with one of our attorneys, for any matter involving defective products and devices, medical implants, infant safety, auto and other motor vehicle accidents and the like.

Statistics Show Defective Hip Implant Failures Are Rising

Fri, 14 Oct 2011 10:22:10 -0800

As defective medical device lawyers, we have posted in recent months about the serious issues with defective hip replacement devices. These hips are metal-on-metal hip replacement devices that were manufactured by several companies. But one hip device made by Johnson & Johnson has now failed in over twenty-five percent of patients by the sixth year after it was implanted.

The National Joint Registry of England reported that the general failure rate with metal-on-metal hip implants is nearly ten percent, but that the removal or replacement rate for the Articular Surface Replacement (ASR) from DePuy Orthopaedics Inc. is over double that percentage. These statistics have led the company to recall the device.

Johnson & Johnson is the largest manufacturer of hip implants. Metal-on-metal devices have a higher failure rate than other types of hip replacement devices. There are over 2,000 lawsuits now pending against the company regarding the failure of these devices.

The six year mark seems to be a particular milepost with the failure of these devices as the risk has been shown to increase at a sharp rate at the point in patients. What the statistics are showing is that after the sixth year of implantation removal rates are 4.7 percent generally for patients that have received any type of hip device. But the rate for metal-on-metal in this same period of time is 14 percent. Cemented devices account for only three percent of cases requiring removal. The use of the metal-on-metal hip replacements is declining, which is expected, given the fact that these are not performing as well as other hip devices are performing.

The New York Times reported in late August that the federal government is also receiving a major uptick in complaints regarding failed hip replacements. The NYT reports that between January and August of this year, the the federal Food and Drug Administration received over 5,000 complaints about metal-on-metal devices. This accounts for more complaints than the agency received in the prior four years combined.

The anticipated scale of the defective hip implants is likely to become a costly medical problem -- similar to that of the recalled Medtronic heart device several years ago. In addition to the need for additional surgeries, patients have suffered serious injuries from metallic debris that is being produced with this type of implant. Tissue damage can be severe so that even if the device is replaced, patients have great difficulty walking.

As is so often the case, there are safer alternatives that surgeons are now turning to in light of the problems with the metal-on-metal replacements. But for those patients that have been implanted with the defective hips, the shift to other devices comes too late and they have a higher likelihood of tissue damage and additional surgeries for replacement.

If you have been implanted with a DePuy or other metal-on-metal hip contact our injury law firm immediately. If you have not yet experienced symptoms, but would like to know your rights Hersh & Hersh can help. Contact us to arrange a free consultation with one of our highly experienced defective medical device litigation attorneys.

CDC Knows -- Mild Traumatic Brain Injury Can Be Devastating

Thu, 06 Oct 2011 17:27:48 -0800

Recently, we posted on the serious dangers of what is called mild traumatic brain injury. These injuries are not visible on an MRI, but can cause life long impairments in adults and children. Now the CDC has issued a statement that even mild traumatic brain injuries can result in life-long impairments.

As brain injury lawyers having represented the victims of MTBI, we are well-aware of the dangers of these injuries and the need for the public to be aware of them. As noted by the CDC, "symptoms may appear mild, but the injury can lead to significant life-long impairment affecting an individual′s memory, behavior, learning, and/or emotions."

The CDC's statement about these brain injuries was part of a release of some sobering statistics about US youth and brain trauma. The CDC reports that over the past decade, head injuries resulting in emergency room visits have risen by 60 percent. These head injuries are mainly due to accidents involving kids playing football, soccer, and basketball, riding bicycles and playground activities.

As California personal injury attorneys , we are very aware of the devastating effects these injuries can have. And the numbers are rising. According to the Centers for Disease Control and Prevention, in 2001 there were over 150,000 cases of traumatic brain injury in American youth. But the numbers climbed to nearly 250,000 in 2009.

The agency attributes this rise in head injury emergency room visits to greater awareness for both parents and sports coaches who now know that these injuries can be subtle and devastating at the same time. Perhaps the recent press reports regarding the long-term impact of these injuries for professional football players, for example, have also raised awareness.

The CDC also notes that children are more vulnerable to these injuries due to the chemical changes that occur in the developing brain after an injury. The majority of these injuries are occurring in boys. The primary age span is from 10 years to 19 years of age. Not surprisingly, boys are getting injured with more frequency in football and girls in soccer.

Football accounts for nearly 60 percent of the deaths that have resulted from traumatic injuries over the past 20 years. Over ten percent of the deaths that resulted from football were said to have been caused by kids going back into a game after a concussion. This has led over 20 states to require students to stay out of games after a head injury to ensure for their safe return to the field.

The San Francisco, California injury law firm of Hersh & Hersh provides free consultations with one of our experienced attorneys to evaluate your potential case. If you or your child have been injured and believe you might have suffered any form of traumatic brain injury, please contact our law firm to talk with us about your situation.