The Harper Law Blog

The Harper Law Blog offers news, announcements, thoughts and articles on life, law and our practice areas of emphasis.

Giving Back: Military & First-Responders

Posted Monday, November 06, 2017 by Ed Harper

As John F. Kennedy once said, “As we express our gratitude, we must never forget that the highest appreciation is not to utter words, but to live by them.”

The Harper family has a long-standing history of military members and first-responders. I am the proud grandson of a Marine Corp World War I veteran, son of a retired naval officer, brother-in-law to a firefighter and paramedic captain, and father-in-law to an active duty Naval Aviator. There are countless other friends and colleagues I know who have served our country with the utmost integrity and honor.

As we honor those who have served in our military, I thought of how I could give back to our country’s service members and first responders. In partnership with Spirit 105.3 and fellow attorneys, Harper Law wants to give veterans, active-duty and retired military, and first-responders a free legal consultation to assist you in your time of need. This can be of any legal nature; I am happy to answer questions you may have. If I cannot assist you with your case or questions, I will refer you to a trustworthy attorney who can help you.

We honor you and thank you for your service. Give me a call at 425-284-3333 or email me info@edharperlaw.com.

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Product Liability - Design Defect

Posted Monday, October 30, 2017 by Ed Harper

Washington’s Product Liability Act – RCW 7.72.030 (a): “A product is not reasonably safe as designed if, at the time of manufacture, the likelihood that the product would cause the claimant’s harm or similar harms, and the seriousness of those harms, outweighed the burden on the manufacturer to design a product that would’ve prevented those harms and the adverse effect that on the alternative design that was practical and feasible would have on the usefulness of the product…

(3) In determining whether a product was not reasonably safe under this section the trier of fact shall consider whether the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer. RCW 7.72.030(1) (a)(3) there are two tests for determining whether a product is defective:

1 – the Risk Utility Test

2 – the Consumer Expectation Test.”

The risk utility test requires a showing that the likelihood and seriousness of a harm outweigh the burden on the manufacturer to design a product that would’ve prevented that harm and would not have impaired the products usefulness. The consumer expectation test requires a showing that the product is more dangerous than the ordinary consumer would expect. Higgins v. Intex Rec. Corp. et al., 123 Wn.App 821, 90 9 P.3rd 421 (2004).

In* Higgins v. Intex Rec. Corp*, which was a suit for personal injuries based on product liability, the plaintiffs submitted the question of a snow tube’s safety to the jury. The plaintiffs submitted that the snow tube went too fast, had no means for the rider to control it, and then turned the rider into a fixed backward position.

The jury determined that the tube was not reasonably safe as designed and the case was upheld on appeal utilizing the two tests to determine whether this product was unsafe. Using the risk utility test and facts supporting this view of defectiveness, “speeding backward at 30 mph down a crowded snow covered hill is not safe,… The user cannot watch for others in his or her path. And bystanders cannot always move fast enough to avoid them. There was ample evidence that an alternative design would permit the user to see what is in his or her path and avoid collisions by either bailing out or by using minimal steering.”

The court also reviewed the consumer expectation test “comparing it to another device called a Snow-Boggan which provides a fast ride but not a blind high-speed ride. The jury could then find that a reasonable consumer would expect that the snow sliding product would not put him or her in a backward, high-speed slide.” (Higgins at 830).

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U. S. Vaccine Court and Fund Set Up for Injured Persons

Posted Monday, September 18, 2017 by Ed Harper

Recently the United States Federal Government has set up a vaccine court and fund to assist with the claims management of issues arising from vaccines to reduce the number of lawsuits against drug companies. The US Court of Federal Claims, commonly called the Vaccine Court, was established to help with resolving claims outside the traditional United States tort system. The program was established in 1986, after high-profile lawsuits were made against drug companies. Several children had serious, adverse reactions – including seizures and brain damage – that appeared to be linked to the diphtheria, pertussis, tetanus vaccine or DPT vaccine (this version was later replaced by the DTaP Vaccine). The parents sued the makers of the DTP vaccine and, in at least 2 cases, were awarded millions of dollars.

The National Childhood Vaccine Injury Act of 1986 created a unique mechanism for compensating persons injured by certain pharmaceutical products. The act established the National Vaccine Injury Compensation Program as an alternative to traditional product liability and medical malpractice litigation for persons injured by vaccinations. These include their receipt of one or more standard childhood vaccines. According to the courts website over the last 21 years, the fund has provided compensation to 2319 people, paid via this fund, and more than $1.8 billion combined has been paid out since the program’s inception in 1988.

To qualify, eligible claimants can recover compensation for vaccine injury – related medical and rehabilitative expenses, for pain-and-suffering, and lost earnings. Of significance, claimants may also recover “reasonable” attorney’s fees and costs, and the program also permits attorney fee awards to be made when a claim is otherwise denied, as long as the claim had a reasonable basis and was pursued in good faith.

Vaccines covered under the program include those that protect against diphtheria, tetanus, pertussis (whooping cough), measles, mumps, rubella (German measles), polio, hepatitis A, hepatitis B, varicella (chickenpox), Hemophilus influenzae type b, rotavirus, pneumococcal conjugate, trivalent influenza (seasonal flu), meningococcal and human papillomavirus.

The benefit of this program is that patients need not prove fault. The typical requirement in a tort case is to prove the person suffering injury or death must prove a medical causation or linkage to the event. However, in a vaccination case, this causal relationship has been lessened to allow claimants to merely determine whether it could be reasonably presumed that the injuries suffered could be related to the vaccine absent a more plausible explanation. Therefore, these claims can be brought with sufficient evidence of the vaccination. And coupled with information such as an expert opinion providing evidence for a reasonable presumption, these claims can be highly beneficial for an injured person suffering from the after-effects of a vaccination gone awry.

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Washington's New Law

Posted Thursday, August 31, 2017 by Ed Harper

Driving while Distracted and Using a Personal Electronic Device

Serious accidents stemming from distracted driving are on the rise in Washington. Specifically, distracted driving fatalities increased by 32% from 2014 to 2015, according to the Washington Traffic Safety Commission. In response, our state government has attempted to add more laws in an effort to deter this problem. Recently, in July 2017 Washington added a new section to Washington’s driving laws.

The ramifications are twofold: first, the new laws prohibits a person from using a personal electronic device while driving a motor vehicle; and, additionally it is now illegal for a person to drive while dangerously distracted.Regarding the use of cell phones - defined as a “personal electronic device” means any portable electronic device capable of wireless communication or electronic data retrieval…This includes a cell phone, tablet, laptop, two-way messaging device, or electronic game.

The definition of “use” or “uses” means holding a personal electronic device in either hand or both hands; using your hand or finger to compose, send, read, view…However one can use a finger to activate, deactivate, or initiate a function of the device; watching a video on a personal electronic device is also illegal.

Dangerously distracted has been defined as when a person who engages in any activity not related to the actual operation of a motor vehicle in a manner that interferes with the safe operation of their motor vehicle on the highway. Enforcement of this section is a secondary offense or action when a driver of a motor vehicle has been detained for suspected violation of a separate traffic infraction or equivalent local ordinance.

What do these new laws mean? The new laws as enacted provide the law enforcement officers more power, more weapons in their arsenal so to speak when they suspect someone from driving while distracted or using a personal electronic device. A hands-free set is necessary and should be utilized by all drivers.

The distracted driving restriction will allow the officers to encourage drivers from doing anything that’s harmful or attention getting which would deprive a driver from their full attention while on the road. For civil claims against other drivers, using the distracted driving statute can help, but in a manner that’s supportive of the standard negligence instructions. Examples such as failing to use reasonable care – the common definition for negligence, following too close, or driving too fast for conditions, all can be utilized with the new distracted driving law. The bottom line is a person must use reasonable care not to harm another person while driving.

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Preponderance of the Evidence – Washington Pattern Instruction 21.01

Posted Tuesday, July 25, 2017 by Ed Harper

“When it is said that a party has the burden of proof on any proposition, for that any proposition must be proved by a preponderance of the evidence, for the expression ‘if you find’ is used, it means you must be persuaded, considering all the evidence in the case bearing on the question, that the proposition on which the party has the burden of proof is more probably true than not sure.” This instruction is based on the case Cox v. Spangler, (cite omitted). This burden of proof falls on the plaintiff, regarding the injuries which allegedly have been caused by the defendants.

To establish a causal connection in most civil matters, the standard of confidence required is a “preponderance,” or more likely than not, more than 50%. According to Lloyd L, Wiehl, “In essence the Washington court has reduced the burden to the probability factor.” (Lloyd L. Wiehl, Our Burden of Burdens, 41 Wash. L. Rev. 109, 110)

The case of Anderson v. Akso Noble Coatings, Inc. 172 Wn. 2nd 593, 260 P 3rd 857, (2011), sheds light on this issue regarding an attempt by the defendants to establish medical issues with a potentially higher standard “a reasonable degree of medical certainty”. The plaintiff must establish their damages beyond the realm of speculation. The medical testimony must at least be sufficiently definite to establish that the act complained of “probably” or “more likely than not” caused the later disability.

The defendants if attempting to prove a different event caused injuries or damages, the burden falls on them to establish this other event caused injury. In Anderson, Justice Chambers establishes “expert medical testimony must meet the standard of reasonable medical certainty or reasonable medical probability” (Anderson at 606 – 607)

Justice Chambers notes that reasonable medical probability and reasonable medical certainty are used interchangeably.

In Anderson, Julie Anderson sued her employer for injuries caused to her unborn child while she worked at the paint company, Akso Nobel Coatings. One medical expert concluded Anderson’s young infant’s developmental malformations were likely due to his mother’s paint exposure at Akso. The doctor referring to the young child’s issues stated “significant medical problems very likely a result of significant exposure to organic solvents used in utero.” Additionally, plaintiff Anderson relied heavily upon the expert opinion of one of her doctors, who was prepared to testify “within a reasonable degree of medical certainty, as to the cause of her young son’s malformations as being in utero workplace exposure to her while employed at Akso Nobel. (Anderson at 603 – 604)

The defendants argued that under the Frye standard the theory of causation mentioned above must be “generally accepted” in the scientific community. The trial court agreed that under Washington common law there must be consensus of scientific opinion on the issue of specific causation and granted the motion in limine excluding Anderson’s expert’s testimony. The Supreme Court disagreed via Justice Chambers opinion as stated above. (Anderson at 612)

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