Our California Serious Injury Lawyers Discuss The Pitfalls & Exceptions to the California Statute of Limitations, as Well as Legal Theories That Can Save a Case From Being Barred By the Statute of Limitations. Do Not Try to Apply the Statute of Limitations in Your Case. We Provide Free Case Evaluations in Car, Motorcycle, Big Rig Truck & Pedestrian Auto Accident Cases, Premises Liability, Medical Malpractice, Drug Product Liability, Food Poisoning & Other Negligence Cases.
You should look to no one but a competent and knowledgeable California lawyer to advise you with regard to the statute of limitations and other periods of limitation which may apply to limit or complicate your right to file suit. We consider it completely irresponsible that some lawyers will provide canned statute of limitations advice, such as 2 years for auto accident injuries, or the 1 year discovery rule with the 3 year outside limitation in medical malpractice cases, as if that was sufficient information for the lay person to apply himself, for example, to comfortably delay filing his case or to determine whether his time to sue has passed. Completely irresponsible. The information appears on other lawyer web sites, but you won't find it here, and if you read on you will understand why you must not just look to these wholly inadequate summaries of the language of the California statutes of limitation to determine if your case can still be filed, or if you can delay filing, for example, as some mistakenly do, to see if your injury will heal or get worse.
We will explain the wide open pitfalls in relying solely upon the language in a statute of limitation, and we will explain it fully to your satisfaction in just a minute. But just so that you don't feel that we are pushing you away, in terms of our refusal to provide a list of California statutes of limitation, we would alternatively welcome you to contact us for a free case evaluation, and as we analyze the viability of your case, assessing whether your case will meet the intake guidelines of our office, a part of what we will certainly consider is whether your case is barred by the applicable statute of limitations, exeptions to the statutes of limitations, legal theories which the sophisticated lawyer can use to extend the date of "commencement" of the statute of limitations, as well as other applicable provisions under California law which may cut off your right to file suit long prior to the expiration of the pertinent statute of limitations. Simply fill out the Free Consultation E-mail Form and we will contact you to provide our case consultation without any charge or obligation. You may also wish to consider our qualifications as trial lawyers, discussed briefly in the right hand column of this page, and our practice area pages where we discuss our qualifications and experience as car, motorcycle and big rig truck accident lawyers, serious injury premises liability attorneys, pharmaceutical product libility lawyers, medical malpractice attorneys, elder abuse lawyers and food poisoning attorneys. Please also consider our extensive experience, qualifications and approach to serious and catastrophic injury cases.
Now to show you why you must not attempt to determine yourself how the California statute of limitations might apply, even assuming that the information given on these other lawyer sites is accurate - as far as they go.
We just mention two examples above. These are just the most common inquires. "What is the California statute of limitations applicable to auto accidents?" and "What California statute of limitations applies to medical malpractice cases?" Below we will use these examples to explain how just reading the statute of limitations can lead the injured layman to arrive at the mistaken conclusion that his rights are barred, or lull him into the false sense that he can delay filing suit, with the result that he loses his rights. We will also show that there are little used but very good legal theories that the sophisticated trial lawyer can often use to revive legal rights where it would appear from application of the statute of limitations that the rights had long expired.
First, what you see on the other "California personal injury lawyer" web sites is that there is a 2 year statute of limitations which applies to auto accidents. And that is very dangerous information just to cite to the lay auto accident victim who might have been paralyzed, or suffered debilitating internal injuries or catastrophic orthopedic injuries or a limb amputation. He or she may read that he the statute of limitations is 2 years and be lulled into waiting several months to file suit, for example, to deal with the pressing medical decisions and rehabilitation, or perhaps to see if their injury might resolve.
The information with regard to the 2 year statute of limitations can be fatally misleading to the injured auto accident victim, leading to delay filing suit, and resulting in the loss of his rights to recover for his injuries, perhaps most obviously because it fails to take into consider other time limits which will define his right to sue. One example applicable to auto accidents is the California government claims provisions. If your auto accident involved a public entity, as for just a few examples, if investigation should later confirm that an aspect of road design, or defect or failure to maintain the highway contributed to the accident, or if the other driver happened to be a state or county or city employee, driving his car in the course and scope of his employment, the seriously injured client would lose his right to sue the city, county or state if he fails to file a government claim with the public entity within 6 months, obviously a time period much shorter than the 2 year California statute of limitations. In the latter example, the driver of the car might still be sued, but if he has a $15/30,000 policy, that will be little help for the seriously injured accident victim. But if he had received appropriate legal advice from competent California legal counsel, timely filed his government claim, and followed the government claims procedures essential to be completed prerequisite to filing suit against a public entity, the client could have recovered the full measure of his life time medical expenses, past and future earnings losses, and his general damages including his pain and suffering, and loss of enjoyment of life damages.
The other reason why we don't provide canned statute of limitations information for non-lawyers to consider is that you may decide that your case is barred by the statute of limitations when the legal truth is that it is not. Most statutes don't commence to run until the statute of limitations "accrues," commonly upon "discovery" or when the client reasonably should have discovered his cause of action. And there are volumes upon volumes of appellate cases interpreting what the discovery rule means and how it applies in particular factual contexts -- case law originating because the lawyers on either side had diametrically opposed interpretations of the discovery rule. So even if the lay person might be aware that the statute of limitations applicable to his case commences only on the accrual of his cause of action, please understand that determining when the limitation statute commenced to run requires legal competence in the nuances of subjects such as the discovery rule.
And the fact is that you cannot even found your lay judgment on what might appear to be a strict and "obviously applicable" "outside limitation" set forth in a statute of limitations. One example is the California medical malpractice statute of limitations, which other lawyers describe as a 1 year discovery rule with a 3 year outside limitation, explaining that the victim of medical malpractice must sue within 1 year of the date he discovers his cause of action, but whether he discovers it or not, the action will be barred if not filed within 3 years of the medical malpractice. Don't rely on it.
To provide an example of an actual case in which the fallacy of applying the California medical malpractice statute of limitation's 3 year outside limitation period would have led to the loss of a client's $1,500,000.00 claim, but was rescued by the application of law not commonly described in discussing statutes of limitations, you may consider an actual case prosecuted by attorney Henke. The physician had provided to an expectant mother a sedative as recommended by a well known pharmaceutical company. The drug was, however, not FDA approved, and later turned out to be a potent teratogen. The baby was born with birth defects, but her mother didn't seek legal counsel for her child, and after attaining majority this wonderful college educated woman with her serious limb defects didn't come to ask Henke about her potential rights until she was in her late twenties. The physician's malpractice occurred in 1961, and the baby was born in 1962, but she didn't come to Henke's office until the mid-1980's. In 1970 the first California medical malpractice statute had been enacted with a 4 year outside limitation, and the client didn't file her case within the 4 years. In 1975, an even more restrictive medical malpractice statute of limitations was enacted, providing the 3 year outside limitation, and the client didn't file suit with in that 3 years either.
What Mr. Henke did was allege in the complaint that the physician and pharmaceutical company "intentionally concealed" the cause of action from his patient. The physician did not inform his patient that the drug he prescribed her under the brand name was the same drug being widely discussed in the press as a powerful teratogen under another name, responsible for the birth defects of many thousands of children world wide. A physician's "intentional concealment" delays the commencement of the outside medical malpractice statute of limitation until discovery. If this client had looked only to the simple descriptions of the California medical malpractice statute of limitations described on other lawyer web sites she might well have concluded that her cause of action against her physician was barred. Henke overcame the physicians lawyers' demurrer to the complaint asserting the statute of limitations as a bar to the action and Henke overcame their motions for summary judgment of both the physician and pharmaceutical company contesting that Henke could prove the physician intentionally concealed the plaintiff's cause of action. Shortly after the Judge's ruling in Henke's favor on the statute of limitations motions for summary judgment, the physician's insurer and the pharmaceutical company agreed to jointly pay Henke's client this $1.5 million dollar settlement.
Other theories of action are also available to the sophisticated trial lawyer to overcome what might appear to be solid statute of limitations defenses. In another medical malpractice case, Henke represented 10 clients all of whom discovered their cause of action against their physicians and hospital much longer than one year prior to their coming to Henke for representation and the filing of their complaints against the physicians shortly thereafter. Henke's clients readily admitted in their depositions the fact that they had discovered their causes of action against the physicians and hospital much more than one year prior to filing their complaints. This again led the defendants attorneys to move for summary judgment on the grounds that the 1 year discovery rule provided by the California medical malpractice statute of limitations barred each of the plaintiffs' law suits. But Henke had anticipated the statute of limitations defense, suing the three defendant doctors and hospital as not solely as guilty of medical malpractice, but as "co-conspirators." The crux of the Henke's alledged conspiracy theory was that the defendant doctors were all a bunch of quacks, that the hospital knew they were quacks, and joined in a conspiracy between them to defraud their patients with below standard AIDS medical care, and that two of the doctors had continued to engage in their idiotic quackery right up until the date Henke sued them.
The little used legal theory of "conspiracy" is established under California law simply by proving that one or more persons agreed or "concured" to do something which is illegal or "wrongful" and committed one or more acts in furtherance of the conspiracy. But what few lawyers appreciate, and what these lawyers sites explaining the statutes of limitations fail to explain, is that if the lawyer can establish these few simple elements of the theory of conspiracy, the statute of limitations commences to run only upon the last overt act in furtherance of the conspiracy.
In this case, since two of the defendant doctors continued to practice their below standard and fraudulent medicine, on others, right up until the time Henke filed his 10 clients' complaints, conspiracy theory provided the antidote to all of the doctors' and the hospital's statute of limitations defenses. Again, Henke prevailed on all the defendants' motions for summary judgement, the Judge ruling that Henke had raised a triable issue of material fact whether the statute of limitations was not a defense on the basis of the evidence that the defendant physicians and hospital had concurred/conspired to defraud the plaintiffs with their below standard medical care, and that two of physicians had continued to act "in furtherance of the conspiracy" to a point in time within a year, indeed right up to the date Henke filed the complaints. Henke then took 5 of his clients cases to trial, in one consolidated 4 month trial, obtaining a $2,700,000.00 jury verdict against the defendants.
The foregoing is not to be relied upon by the visitor to this web site in deciding whether your claim is barred by the statute of limitations. We hope that it is by now apparent that the purpose of this page is the opposite, to warn you not to decide for yourself that your claim is barred by the statute or limitation. Nor must you on your own read a statute of limitations and conclude that you can safely wait for a year or two before filing your legal action. Statute of limitations analyses, and the related analyses such as those described above, should wisely be deferred to competent, experienced and knowledgeable California lawyers.
Do not decide that you have lost your rights or that you can delay asserting your rights on the basis of simplistic discussions of statutes of limitation. Again, we welcome you to contact us for a Free Case Evaluation. In determining whether your case falls within our intake guidelines we will consider all the pertinent factors of liability, causation and damages, as well as whether your case is still viable given the applicable California statute of limitations, exceptions and potential legal theories for avoiding the harsh consequence of the limitations statute. Again, our case consultations are entirely free of charge and free of obligation.
*Landmark Jury Verdicts:
$3.8 million dollar gross jury verdict in brain injury case. Attorney, Ray Henke's client suffered mild aphasia as the result of strokes caused by emboli from an atrial myxoma, a tumor in the upper left chamber of the heart. Atrial myxomas are the most rare human tumors known to medical science. The patient initially suffered a "fainting spell" which her physicians investigated using EEG's and CT scans and well as an EKG, but failed to perform an echocardiogram of the patient's heart, which would have disclosed the atrial myxoma. The physicians attorney's argument was that atrial myxomas are an "autopsy diagnosis" seen only a handful of times in the medical literature, never before diagnosed in a living person, a diagnosis that most cardiologists had never heard of. At trial, attorney Henke called the defendant internist to the stand as his first witness, and asked politely whether he had "considered atrial myxoma in his differential diagnosis." The physician responded, "Mr. Henke, you don't think of zebras when you hear hoof beats." The internists comment, actually a common physician analogy was rather obviously intended by the defense to hit home to the jury that when confronted with common symptoms, such as a fainting spell, which can occur from many commonly seen etiologies that physicians will look to those common causes of fainting spells, "the horses," not "zebras" such as an atrial myxoma. Attorney Henke thought about the doctor's analogy for a moment and then then asked, "Mitral valve prolapse. It's a 'horse.' Isn't it, Doctor?" The physician responded, "What do you mean?" Mr. Henke clarified, "Well mitral valve prolapse occurs in about 6 percent of a randomly selected population of females Mrs. Z's age. It's a 'horse' isn't it?" After being instructed by the Judge to answer the question, the physician reluctantly responded, "Yes, It's a horse." Henke continued, "Mitral Stenosis, Doctor, it's a 'horse,' isn't it?" The internist responded "Okay, yes, it's a 'horse'". Again Henke then asked, "Idiopathic subaortic stenosis, Docor, it's a 'horse' isn't it?" The physician again had to acknowledge "Yes." Henke then completed the circle with the internist's analogy, "Well then Doctor, upon hearing the 'hoof beats,' Mrs. Z's symptoms, if you had just thought 'horse,' atrial myxoma, mitral stenosis or idiopathic subaortic stenosis, and 'turned your head in the direction of the hoof beats,' done an echocardiogram, you would have seen the 'Zebra,' wouldn't you have doctor?" Again the physician was forced to acknowledge "Yes." The physician's zebra remark followed by attorney Henke's quick analysis of the fallacy of the analogy, and indeed its utility in demonstrating the physician's negligence, by his own analogy, was cited by the jurors in interviews following the trial as the pivotal point in the trial which resulted in their liability verdict for Mr. Henke's client. This case and this particular interchange between Mr. Henke and the defendant physician, formed the subject for a chapter in the book "Medical Malpractice, Solving the Crisis" by Frank Edwards, M.D., Holt & Co. The case and interrogation was also the subject of a legal journal article published in "Forum" the journal of the California Trial Lawyers Association. You may consider our qualifications, and indeed our national acclaim as seasoned, superior trial lawyers in complex litigation, discussed in the center and right hand column of this page.
$2.7 million dollar jury verdict in a medical malpractice case in which attorney Henke represented 5 plaintiffs in a single consolidated 4 month trial against their physicians and hospital for conspiracy to defraud them with phony AIDS cures. Mr. Henke's experts in the case included Luc Montagnier, the discoverer of HIV and head of France's National AIDS Laboratories; Michael Gotlieb, the discoverer of AIDS and co-founder of the American Foundation for AIDS Research, Don Francis, the head of the first CDC AIDS Task force and discoverer that AIDS was a sexually transmitted disease, John Curnutte, head of the largest AIDS vaccine project in the world, Roger Detels, Chairman of the Epidemiology Department at UCLA and chief investigator on the largest AIDS epidemiology study in the United States, and a dozen others of the most highly respected AIDS scientists and physicians in the world. These cases were widely chronicled in the legitimate press. Mr. Henke also testified before Congress with regard to these cases, at the invitation of the Chairman of the Judiciary Committee of the United States House of Representatives.
$2.5 million dollar jury verdict in a contested liability motorcycle accident case in which Mr. Henke's client was "splitting lanes" and was injured turning left between cars in two left turn lanes. The defense attorney took the position that it was the motorcyclist's negligence in splitting lanes that resulted in the accident. Attorney Henke took the deposition of the police officer who investigated the accident and obtained his testimony that it was legal in California to split lanes, including between to left turn lanes, and that in his opinion, Henke's client's having done so was not a contributing factor in the accident. Attorney Henke also established that the defendant auto driver was operating his vehicle in the course an scope of his employment, forming the bases upon which Mr. Henke then named the employer also as a defendant, and was able to recover against the employer's liability and excess insurance policies. Attorney Henke's client suffered a below knee amputation and broken clavicle.
$1.5 million dollar settlement in a medical malpractice and drug product liability birth injury case involving a drug which Attorney Henke claimed was the probable cause of the child's birth injuries, based upon the facts that the child's mother's obstetrician provided her a sedative during early pregnancy. Mr. Henke's firm obtained possession of a list of physicians, which included the mother's obstetrician, who served as "investigators" in clinical trials involving a drug which was later determined to have been a very powerful teratogen; and the child was born with limb defects typical of the kind of birth defects which were caused by the particular teratogen. The settlement was achieved despite the fact that the medical records were unavailable 20 years after the birth and retirement of the obstetrician; and the mother did not recall the name of the sedative which was provided to her. The statutes of limitation had long passed by the time the client contacted Mr. Henke's office. Mr. Henke was however able to overcome the statute of limitations, over the demurrers and summary judgment motions of both the pharmaceutical company and physician, by successfully alleging that they had intentionally concealed from the public and from the child's mother that they had distributed the drug.
*State Bar of California Disclaimer: The results obtained in the cases listed were dependent upon the facts of the cases, and the results will differ in other cases based on different facts
$3.8 million dollar gross jury verdict in brain injury case. Attorney, Ray Henke's client suffered mild aphasia as the result of strokes caused by emboli from an atrial myxoma, a tumor in the upper left chamber of the heart. Atrial myxomas are the most rare human tumors known to medical science. The patient initially suffered a "fainting spell" which her physicians investigated using EEG's and CT scans and well as an EKG, but failed to perform an echocardiogram of the patient's heart, which would have disclosed the atrial myxoma. The physicians attorney's argument was that atrial myxomas are an "autopsy diagnosis" seen only a handful of times in the medical literature, never before diagnosed in a living person, a diagnosis that most cardiologists had never heard of. At trial, attorney Henke called the defendant internist to the stand as his first witness, and asked politely whether he had "considered atrial myxoma in his differential diagnosis." The physician responded, "Mr. Henke, you don't think of zebras when you hear hoof beats." The internists comment, actually a common physician analogy was rather obviously intended by the defense to hit home to the jury that when confronted with common symptoms, such as a fainting spell, which can occur from many commonly seen etiologies that physicians will look to those common causes of fainting spells, "the horses," not "zebras" such as an atrial myxoma. Attorney Henke thought about the doctor's analogy for a moment and then then asked, "Mitral valve prolapse. It's a 'horse.' Isn't it, Doctor?" The physician responded, "What do you mean?" Mr. Henke clarified, "Well mitral valve prolapse occurs in about 6 percent of a randomly selected population of females Mrs. Z's age. It's a 'horse' isn't it?" After being instructed by the Judge to answer the question, the physician reluctantly responded, "Yes, It's a horse." Henke continued, "Mitral Stenosis, Doctor, it's a 'horse,' isn't it?" The internist responded "Okay, yes, it's a 'horse'". Again Henke then asked, "Idiopathic subaortic stenosis, Docor, it's a 'horse' isn't it?" The physician again had to acknowledge "Yes." Henke then completed the circle with the internist's analogy, "Well then Doctor, upon hearing the 'hoof beats,' Mrs. Z's symptoms, if you had just thought 'horse,' atrial myxoma, mitral stenosis or idiopathic subaortic stenosis, and 'turned your head in the direction of the hoof beats,' done an echocardiogram, you would have seen the 'Zebra,' wouldn't you have doctor?" Again the physician was forced to acknowledge "Yes." The physician's zebra remark followed by attorney Henke's quick analysis of the fallacy of the analogy, and indeed its utility in demonstrating the physician's negligence, by his own analogy, was cited by the jurors in interviews following the trial as the pivotal point in the trial which resulted in their liability verdict for Mr. Henke's client. This case and this particular interchange between Mr. Henke and the defendant physician, formed the subject for a chapter in the book "Medical Malpractice, Solving the Crisis" by Frank Edwards, M.D., Holt & Co. The case and interrogation was also the subject of a legal journal article published in "Forum" the journal of the California Trial Lawyers Association. You may consider our qualifications, and indeed our national acclaim as seasoned, superior trial lawyers in complex litigation, discussed in the center and right hand column of this page.
$2.7 million dollar jury verdict in a medical malpractice case in which attorney Henke represented 5 plaintiffs in a single consolidated 4 month trial against their physicians and hospital for conspiracy to defraud them with phony AIDS cures. Mr. Henke's experts in the case included Luc Montagnier, the discoverer of HIV and head of France's National AIDS Laboratories; Michael Gotlieb, the discoverer of AIDS and co-founder of the American Foundation for AIDS Research, Don Francis, the head of the first CDC AIDS Task force and discoverer that AIDS was a sexually transmitted disease, John Curnutte, head of the largest AIDS vaccine project in the world, Roger Detels, Chairman of the Epidemiology Department at UCLA and chief investigator on the largest AIDS epidemiology study in the United States, and a dozen others of the most highly respected AIDS scientists and physicians in the world. These cases were widely chronicled in the legitimate press. Mr. Henke also testified before Congress with regard to these cases, at the invitation of the Chairman of the Judiciary Committee of the United States House of Representatives.
$2.5 million dollar jury verdict in a contested liability motorcycle accident case in which Mr. Henke's client was "splitting lanes" and was injured turning left between cars in two left turn lanes. The defense attorney took the position that it was the motorcyclist's negligence in splitting lanes that resulted in the accident. Attorney Henke took the deposition of the police officer who investigated the accident and obtained his testimony that it was legal in California to split lanes, including between to left turn lanes, and that in his opinion, Henke's client's having done so was not a contributing factor in the accident. Attorney Henke also established that the defendant auto driver was operating his vehicle in the course an scope of his employment, forming the bases upon which Mr. Henke then named the employer also as a defendant, and was able to recover against the employer's liability and excess insurance policies. Attorney Henke's client suffered a below knee amputation and broken clavicle.
$1.5 million dollar settlement in a medical malpractice and drug product liability birth injury case involving a drug which Attorney Henke claimed was the probable cause of the child's birth injuries, based upon the facts that the child's mother's obstetrician provided her a sedative during early pregnancy. Mr. Henke's firm obtained possession of a list of physicians, which included the mother's obstetrician, who served as "investigators" in clinical trials involving a drug which was later determined to have been a very powerful teratogen; and the child was born with limb defects typical of the kind of birth defects which were caused by the particular teratogen. The settlement was achieved despite the fact that the medical records were unavailable 20 years after the birth and retirement of the obstetrician; and the mother did not recall the name of the sedative which was provided to her. The statutes of limitation had long passed by the time the client contacted Mr. Henke's office. Mr. Henke was however able to overcome the statute of limitations, over the demurrers and summary judgment motions of both the pharmaceutical company and physician, by successfully alleging that they had intentionally concealed from the public and from the child's mother that they had distributed the drug.
*State Bar of California Disclaimer: The results obtained in the cases listed were dependent upon the facts of the cases, and the results will differ in other cases based on different facts
Driving Under the Influence of Cell Conversation Results in DUI Level Driving Impairment And a 4 fold Increased Likelihood that the Driver will Cause an Accident.
Read Henke Law Group Scientific Review Article. As Knowledgeable Cell Phone Accident Lawyers We Can Investigate to Establish That The Other Driver Was On His Cell Phone. The Evidence Can Make the Difference in a Contested Liability Case.
Where we Can Establish That the Other Driver Was Engaged in a Business Call We Can Bring his Employer in as a Defendant and Recover Against the Employer's Assets and Insurance Coverage.
California auto accident attorney Henke has reviewed all the scientific literature on the effect of cell phone use to impair driver attention. Driving under the influence of cell conversation renders the driver DUI level driving impaired and results in a four fold increased likelihood that the driver will cause an accident. Contrary to popular belief, it is not "holding" the cell phone which resulting the impairment. It is the diversion of conscious attention to the internal-cognitive tasks associated with the give and take of the cell conversation away from the external-visual tasks essential for safe driving. Indeed, it matters not whether the motorist is driving under the influence of handheld or hands-free cell conversation, the impairment and the 4 fold increased likelihood that the driver will cause an accident are precisely the same. Yes, California and a number of other states have enacted handheld laws; unfortunately that is just a function of politics. The scientists are not in dispute. All agree that driving under the influence of any cell phone results in the identical DUI level driving impairment.
It is important that the auto accident lawyer obtain the cell phone records of the other driver in every contested liability case, and especially in any serious injury case in which it appears that the other driver lacks sufficient insurance coverage to fully compensate the plaintiff for his injuries and full measure of his damages. In the contested liability case,the evidence of the other party's cell phone use in the moments prior to the accident may snatch victory from the mouth of defeat. In the most common serious injury auto accident case in which the other driver lacks sufficient insurance to fully compensate the plaintiff for his injuries and damages, it is essential that the cell phone records be obtained and appropriate depositions taken of the defendant and the other party to the call to determine whether the other driver was engaged in a business call in the moments leading up to the accident. If he was, then the knowledgeable cell phone auto accident lawyer can bring the employer into the litigation as a defendant "vicariously liable" for the injuries caused by its employee in the "course and scope of his employment." In this way the auto accident lawyer may assure that the plaintiff will be fully compensated up to the limits of the employers insurance policy, and indeed, the employer's assets would be available to execute against.
Read Henke Law Group Scientific Review Article. As Knowledgeable Cell Phone Accident Lawyers We Can Investigate to Establish That The Other Driver Was On His Cell Phone. The Evidence Can Make the Difference in a Contested Liability Case.
Where we Can Establish That the Other Driver Was Engaged in a Business Call We Can Bring his Employer in as a Defendant and Recover Against the Employer's Assets and Insurance Coverage.
California auto accident attorney Henke has reviewed all the scientific literature on the effect of cell phone use to impair driver attention. Driving under the influence of cell conversation renders the driver DUI level driving impaired and results in a four fold increased likelihood that the driver will cause an accident. Contrary to popular belief, it is not "holding" the cell phone which resulting the impairment. It is the diversion of conscious attention to the internal-cognitive tasks associated with the give and take of the cell conversation away from the external-visual tasks essential for safe driving. Indeed, it matters not whether the motorist is driving under the influence of handheld or hands-free cell conversation, the impairment and the 4 fold increased likelihood that the driver will cause an accident are precisely the same. Yes, California and a number of other states have enacted handheld laws; unfortunately that is just a function of politics. The scientists are not in dispute. All agree that driving under the influence of any cell phone results in the identical DUI level driving impairment.
It is important that the auto accident lawyer obtain the cell phone records of the other driver in every contested liability case, and especially in any serious injury case in which it appears that the other driver lacks sufficient insurance coverage to fully compensate the plaintiff for his injuries and full measure of his damages. In the contested liability case,the evidence of the other party's cell phone use in the moments prior to the accident may snatch victory from the mouth of defeat. In the most common serious injury auto accident case in which the other driver lacks sufficient insurance to fully compensate the plaintiff for his injuries and damages, it is essential that the cell phone records be obtained and appropriate depositions taken of the defendant and the other party to the call to determine whether the other driver was engaged in a business call in the moments leading up to the accident. If he was, then the knowledgeable cell phone auto accident lawyer can bring the employer into the litigation as a defendant "vicariously liable" for the injuries caused by its employee in the "course and scope of his employment." In this way the auto accident lawyer may assure that the plaintiff will be fully compensated up to the limits of the employers insurance policy, and indeed, the employer's assets would be available to execute against.
©2010 The Ray Henke Law Group