As Massachusetts personal injury lawyers, we see clients in one particular circumstance far too often.  A person is seriously injured in a car crash.  The at-fault driver carries only minimal insurance.  The victim has mounting medical bills, is out of work, needs in-home care, and has nowhere to turn.

Massachusetts only requires drivers to carry Twenty Thousand Dollars ($20,000) in bodily injury coverage on automobile insurance policies. This means that if a driver who carries only minimal coverage seriously injures or kills another motorist, $20,000 may be all that is available for insurance.  But it gets worse.  Just because there is $20,000 in insurance does not mean the injury victim will recover that amount.  It is likely that most- if not all- of the recovery will be eaten up by medical bills, lost wages, and payments to others.

First, Make Sure You Have Enough of Your Own Insurance

Last week in California, a jury awarded DeWayne “Lee” Johnson a total of $289 Million in finding that agricultural giant Monsanto hid the dangers of Roundup weed killer.  Johnson worked for a school district in San Francisco, and applied Roundup an estimated 20-30 times per year.  Sadly, Johnson’s trial was expedited because the cancer that he alleges was caused by Roundup, Non-Hodgkin’s Lymphoma, has advanced to a stage where his body is covered in lesions and doctors are unsure of his life expectancy.

In reaching their verdict, the jury found that $39 Million was a reasonable amount to compensate the Johnson family for the cancer, which they found was caused by Roundup.  The jury also found that Monsanto acted “with reckless disregard for human life” and awarded him another $250 Million in punitive damages, according to Johnson’s attorney, Robert F. Kennedy, Jr.  In awarding punitive damages, the jury essentially found that Monsanto was aware of the dangers of Roundup, and consciously chose not to warn consumers of the dangers posed by the product.

While the amount of the verdict may seem high, it is important to put it into context.  The $39 Million was specifically earmarked to “compensate” Johnson for the damage that the jury found Roundup had caused.  Johnson likely offered compelling testimony on the pain that Non-Hodgkin’s Lymphoma has caused to him, and how he suffered for years with cancer that he knew was terminal.  When put into that context, the amount of the verdict quickly seems more reasonable.  The $250 million was specifically entered to “punish” Monsanto and Roundup for hiding the dangers of the product.  Punitive damage awards are not in place to compensate the victim, but to punish the company for hiding a danger or acting recklessly.  The law allows punitive damages for the specific purpose of sending a message to companies that they need to change their practices.

In recent months, we have seen a seemingly never-ending stream of horrific allegations come from all corners of the country, but most significantly from Hollywood and Washington D.C.  From Harvey Weinstein to Louis C.K. to Al Franken to Roy Moore to Charlie Rose to President Donald Trump, the list of alleged abusers is as lengthy as it is shocking.  Hopefully, we can all agree that exposing these (alleged) predators is a good thing.  The more information we have on the dangers in high places, the better.

While the high profile figures receive the attention, one question that I have been asked repeatedly is “what can victims of sexual assault or harassment do?”  The first, and most obvious answer, is that victims can go to the police.  Sexual assault is a crime, and the police take it seriously.  Going to the police, and getting the perpetrator into the criminal justice system may have value in several different ways.  First, it may get the predator off the street, and hopefully ensures that no other person will be subject to the same treatment.  Second, it may draw attention to the sexual assault.  A victim can hardly be blamed for wanting to expose a perpetrator who has done so much damage.

While bringing attention to the wrongdoer certainly has value for many victims, it provides no real tangible recovery to a person whose life has often been turned upside down.  That is where the civil justice system may come in.  Crimes of sexual assault, battery, and rape are also civil counts, and victims may be able to sue the perpetrator and collect compensation for the ways in which their lives have been damaged.  These complaints may come in a number of ways.

Recently, the news media has reported extensively on a topic encountered regularly by personal injury lawyers- confidentiality agreements. We are not here to talk about whether you believe President Trump, Michael Cohen, Stormy Daniels, or her legal team.  What we are here to discuss is the agreement that has gotten so much attention in recent days- the document signed by Cohen and Daniels (but not Trump) about the confidentiality of their settlement.  Whether a settlement is reached by a laborer, a doctor, or the President of the United States, parties to a settlement will often discuss whether that agreement should be confidential.  When a person or company pays money to settle a case, they may want those terms to be confidential, in order to escape embarrassment of being involved in the settlement, or to ensure they do not encourage future litigation.

The personal injury attorneys at Mirick O’Connell typically take the view that, unless a confidentiality agreement is negotiated as a part of a settlement, the settlement should be public knowledge.  In our view, it is good for the public to be aware of settlements.  The fact that settlements exist allows people to know about bad actors, and take steps to make sure they do not become victims themselves.  There is a reason that court filings, hearings, and trials are public- the public has a right to know about the justice system.

Civil defendants- and President Trump- often make the argument that confidentiality is the sole reason a settlement is being paid.  They suggest that money is being paid solely to avoid the shame, publicity, and business loss associated with paying a settlement.  When this desire for confidentiality is addressed ahead of a settlement, our personal injury attorneys are sometimes willing to consider it.

Soon after the Presidential election I wrote an article for the Lawyers Logbook© entitled, “Trump, Trucks and Torts.” In the article I pointed out that “as attorneys for victims of unsafe trucking practices; we must be prepared to lobby our legislators to make sure that profits are not allowed to trump safety by eliminating or drastically changing interstate trucking regulations.” Unfortunately, the Trump administration recently withdrew a proposed regulation requiring sleep apnea testing for high risk truck drivers, bus drivers and railroad engineers. Since the withdrawal of the proposed regulation is likely to increase highway fatalities and interstate trucking accidents, I urge you to contact your Senators and Congressmen to encourage them to reconsider the withdrawal of the regulation. Senator Charles E. Schumer denounced the decision to withdraw the regulation: “We don’t want train engineers with undiagnosed sleep apnea, who actually hold lives in their hands, to fall asleep at the switch, and we don’t want big-rig drivers to doze off at the wheel. This abrupt and uncalled for withdrawal by USDOT commemorates a disaster waiting to happen.” Sarah E. Feinberg, the former administrator of the Federal Railroad Administration under the Obama administration, also criticized the decision: “This is a condition that we know has meant unnecessary deaths and injuries. And there is such an easy—and inexpensive—solution. There is no reason to withdraw a rulemaking like this other than you don’t understand the science or because you’ve chosen to ignore it.”

It is a proven fact that moderate to severe obstructive sleep apnea (OSA) causes daytime drowsiness and that long haul truckers suffering from OSA are likely to doze off while driving. The Transportation Department acknowledges that sleep apnea is an “ongoing concern because it can cause unintended sleep episodes and resulting deficits in attention, concentration, situational awareness and memory.” Furthermore, driving while drowsy has been shown to be similar to driving while intoxicated. The United States Department of Transportation estimates that approximately 28% of all interstate truck drivers suffer from some form of sleep apnea. The National Highway Traffic Safety Administration estimates that there are as many as 100,000 accidents a year caused by drivers who doze off behind the wheel and as many as 1,500 deaths and 40,000 injuries a year caused by fatigued drivers. The Harvard Medical School conducted a study and concluded that each day 250,000 persons doze off while driving. In response to confidential surveys, nearly half of the truckers who were interviewed, admitted that they had dozed off at one time or another while driving long haul routes. Since sleep apnea is a significant cause of “fatigued” drivers, the Obama Administration promulgated simple regulations to screen for sleep apnea. These regulations are similar to the regulations adopted by the Federal Aviation Administration for commercial pilots. The proposed regulations require testing of high risk persons. The Obama Administration reasoned that since sleep apnea was the cause of many truck, bus, and train accidents, it would be prudent to test interstate truck drivers, bus drivers and railroad engineers in the same way that pilots are tested. It has been reported by the FAA that approximately 4,900 pilots have been successfully tested and treated for sleep disorders.

If studies showed that 28% of interstate truck drivers could not read road signs without glasses, no one would oppose a regulation requiring these drivers to obtain corrective lenses before driving an 80,000 lb. truck. Similarly, there is no reason why screening for sleep apnea should not be required for all interstate truck drivers, bus drivers and railroad engineers. Although the Trump Administration claims that the withdrawal of hundreds of safety regulations will somehow mysteriously “bolster economic growth”, the withdrawal of the sleep apnea regulation is unwarranted.

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