Blog Topic

President Obama Orders No Texting While Driving (DWIt)
December 10, 2009

President Barack Obama signed an executive order stating that any government employee or its contractors that drive a government vehicle or using a government cellphone should not text while driving. The order blames texting while driving -- henceforth to be referred to as a DWIt, or driving-while-intexticated -- for everything from distracting drivers to causing deadly crashes.

The executive order comes as LaHood wraps up a two-day Distracted Driving Summit, in which he called distracted drivers "a menace to society" and "an epidemic that seemed to be getting worse every year." He also announced new findings from the National Highway Traffic Safety Administration that blamed distracted drivers for 6,000 fatalities and half a million injuries in 2008.

The executive order only applies to federal employees now, but drivers eyeing the guy who's DWIt in the lane next to them should take heart: Several states have already enacted bans on cellphone use while driving and, at the end of July, four Democratic senators, led by Sen. Chuck Schumer (D-N.Y.), introduced legislation that would push the ban nationwide.

Studies show that people who talk on the phone or text message while driving are actually as impaired as drunk drivers, braking almost 20 percent slower than other motorists. Motorists who talk on cell phones while driving are as impaired as drunken drivers with blood-alcohol levels at the legal limit of 0.08 percent. According to Jim Moulin of the University of Utah. "We found that people are as impaired when they drive and talk on a cell phone as they are when they drive intoxicated at the legal blood-alcohol limit," said Frank Drews, an assistant professor of psychology at the University of Utah. Previous studies have suggested as many as 2,600 people are killed each year in accidents involving drivers on cell phones. About 10 percent of drivers say they sometimes talk on cell phones while driving, and that figure is growing.

Another study conducted by AAA found that nearly half of 16 and 17 year-olds say they text message while driving, and 20 percent of drivers overall admit to occasionally keeping one eye on their keyboards while the other is on the road. Considering that these teenagers are the least experienced driver's on the road, and that often they tend to be driving too fast or under the influence, the addition of another distractor makes for a deadly combination.

Researchers believe that part of the problem is that motorists on the phone don't realize what's going on around them. Previous research has shown that up to 50 percent of the visual cues spotted by attentive drivers are missed by the talkers. Another part of the problem is that people tend to over-estimate their ability to drive while distracted. As has been largely reported in drinking and driving studies that people who are intoxicated tend to believe they can handle it or drive safer after a few drinks, the study reported that. "Eighty percent of drivers think they are above average in their ability to drive while talking on a cell phone.

These studies confirm what our common sense tells us about distracted drivers: Drivers that use a cell phone to send text messages or emails while they drive are a clear danger to themselves and to others. Those who engage in this behavior are acting in a manner which is grossly negligent because it involves an extreme degree of risk that someone will be killed or sustain a substantial physical injury because of a distracted driver. Those that engage in this behavior are aware of the risk but nevertheless continue to engage in such behavior without regard to the rights, safety and welfare of others on or near the roadway, and without regard to the safety of their passengers who often are small children.

The Montes Herald Law Group, L.L.P. is a law firm with offices in Irving and Dallas Texas. We are experienced and qualified attorneys who dedicate our practice to the representation of personal injury victims, including victims of car accidents, drunk driving accidents, premises liability claims, insurance and bad faith claims, construction accidents and other cases where people are severely injured through the negligence and reckless conduct of others. Please visit our website at www.MontesHerald.com for more information concerning our law firm and Rachel Montes and Tom Herald. If you desire a free consultation on a personal injury matter, please call us at (214) 522-9401 or email us at Rachel@MontesHerald.com or Thomas@MontesHerald.com for a free case evaluation.

Permalink

Class Action Lawsuits Against Credit Card Companies Filed
November 20, 2009

A Rhode Island woman is suing Citibank, claiming the financial giant is trying to squeeze money out of its credit-card customers in advance of changes in federal law due to take place in February 2010. In July 2009, Citibank notified Murphy that it was raising the variable annual percentage rate on her card to 29.99 percent, despite that her account was in good standing and that her original credit agreement does not expire until April 30, 2010. The lawsuit filed in U.S. District Court earlier this week by Providence lawyer Peter N. Wasylyk on behalf of Portsmouth resident Michol K. Murphy states that Citibank has violated the terms of her credit-card agreement by jacking up the annual percentage rate on her account without cause.

Meanwhile a lawsuit against Citizens Financial Group claims that ATM withdrawals and debit transactions are a trap into which unwary customers fall.

Following an uproar about the questionable actions of credit card companies and banks, the Credit Card Accountability, Responsibility, and Disclosure Act was passed in May 2009 to protect consumers. A copy of that Act is attached.

Attachments:
CreditCardAccountabilityResponsibilityandDisclosureAct.pdf

Permalink

TEXAS BANS THE USE OF CELL PHONES USE IN SCHOOL ZONES
August 24, 2009

Although many cities had already enacted laws to prohibit the use of cell phones in school zones, effective September 1, 2009, the use of cellphones and wireless devices in school zones will be prohibited state wide. This law will prohibit all

No handset talking or texting while driving are allowed when the school zone is active.

Hands-free devices while driving and handset use WHILE STOPPED are allowed.

Calls in certain emergency situations are also allowed.

In addition, effective September 1, 2009, the following restrictions on the use of wireless devices take place statewide:

teenage drivers are prohibited from using wireless devices while driving. This includes a ban on talking on a cell phone, from sending or receiving text messaging and from sending or reading emailing while driving.

Learners permit holders are prohibited from using handheld cell phones in the first six months of driving.

School bus operators prohibited from using cell phones while driving if children are present.

About two-thirds of Texas teenagers surveyed said they have talked on a cell phone while driving in the past six months, according to the state Transportation Institute. More than half said they had read or sent text messages while driving. A 2007 study said cell phone use was among the primary causes of fatal car crashes among teens.

The Montes Herald Law Group, L.L.P. is a law firm with offices in Irving and Dallas Texas. We are experienced and qualified attorneys who dedicate our practice to the representation of personal injury victims, including victims of car accidents and other cases where people are severely injured through the negligence and reckless conduct of others. Please visit our website at www.MontesHerald.com for more information concerning our law firm and attorneys Rachel Montes and Tom Herald. If you desire a free consultation on a personal injury matter, please call us at (214) 522-9401 or email us at Rachel@MontesHerald.com or Thomas@MontesHerald.com for a free case evaluation.

Permalink

Irving Prohibits Roadside Solicitation
June 29, 2009

The City of Irving strengthened its solicitation and handbill ordinance to increase pedestrian and motorist safety, and improve traffic flow and the aesthetics of major roads. The revised regulation prohibits:

• Roadside solicitation except as allowed by state law.
• Costume/sign-holding advertisers in a roadway or on public property adjacent to a roadway.

The new ordinance makes good safety sense. Clearly the people who stand near the roadway and wave signs such as going out of business and advertising sales are doing so to catch the attention of passing motorists. It is just that distraction that the City of Irving does not want drivers to be operating under.

In addition to a basic prohibition against roadside solicitation, the new ordinance also prohibits "Aggressive Solicitation" which is defined as:

1. Intentionally touching or causing physical contact with another person or an occupied vehicle without the solicited person's consent.
2. Intentionally blocking, either individually or as part of a group of persons, the passage of the solicited person.
3. Following closely behind, ahead or alongside a person after he/she has been solicited or
4. Using violent or threatening gestures toward the solicited person.o Approaching or speaking to a person in a manner that would cause a reasonable person to believe he/she is being threatened with imminent bodily injury.

The new ordinance is also designed to prohibit solicitation in settings where people are believed to be at risk for theft because they are either in a potentially vulnerable position or they are likely to be handling their money or engaged in a consumer transaction.   By making solication in these settings illegal, the City of Irving is acknowledging the fear that people have when their personal space is invaded by unwanted solicitors, especially when we are in a particularly vulnerable location or position.   In addition to making it unlawful to engage in direct solicitation in places such as a public transportation facility or public restroom, the new ordinance also makes it unlawful to engage in such solicitation within 25 feet of:

• An automated teller machine -
• An entrance or exit of a bank, credit union or other similar financial institution -
• A pay telephone located outdoors or on the exterior of a structure -
• A self-service car wash -
• A self-service fuel pump -
• A public transportation stop -
• An outdoor dining area of a restaurant, cafe or cafeteria
• Distribution of handbills/fliers on any vehicle without consent.

The adoption of the improved ordinance will help residents who feel "uncomfortable or threatened by unwanted solicitation" to "have the law on their side," said Assistant Police Chief Terry Zettle. "This is another element being implemented to ensure a safe and secure city." For more information, call the Irving Police Department at (972) 721-2518

 If you have legal questions, contact Montes Herald Law Group, LLP at (214) 522-9401.   We are located in Las Colinas (Irving) Texas.   We handle personal injury cases on a contingency fee basis.  Visit our website at www.MontesHerald.com for more information concerning our law firm and our practice areas.   We handle all types of injury cases from automobile accidents, drunk driving accidents, 18 wheeler cases, insurance and bad faith cases, premises liability claims and a variety of other claims involving significant injuries or death.

Permalink

Congressional Bill to Create National Database To Track Artificial Hip & Knee Joints
June 11, 2009

Two House Democrats introduced a bill Wednesday to create a national database of patients who received artificial hips and knees. Several other countries already use such a database to monitor how patients fare, to reduce unnecessary surgeries, and to promote the design, manufacture, and use better products. The bill is co-sponsored by Bill Pascrell Jr. of New Jersey and Lloyd Doggett of Texas, would establish a government-backed registry to track patients' results over time and help detect ineffective surgical practices and faulty devices. Patient registries, in areas like orthopedics, are expected to play an important role in "comparative effectiveness" reviews that the Obama administration hopes will help identify which medical procedures and products work best. "I think it will improve patient safety and outcomes and get rid of poorly performing devices," said Representative Pascrell. America is the largest consumer of artificial hips and knees in the world, but it has long lagged behind other countries like Australia, Sweden and England in making use of joint registries. Advocates of registries say that the lack has resulted in an untold number of unnecessary surgeries and the waste of hundreds of millions of dollars.

In a letter sent earlier to Mr. Pascrell, the surgeons' group sounded a similar theme and also said it preferred a privately run registry that would include both Medicare and non-Medicare patients. Dr. Daniel Berry, chairman of the orthopedics department at the Mayo Clinic in Rochester, Minn., noted that patients in their 40s and 50s, not typically covered by Medicare, now account for a large percentage of those receiving artificial hips.

Orthopedic surgeons' groups have tried for more than a decade to set up an independent registry, but failed because, among other reasons, device manufacturers have balked at financing it. Representative Pascrell said he believed that patients had waited long enough for a private registry to be established, and said that the government needed to be involved, given deferred prosecution agreements reached a few years ago between the Justice Department and makers of artificial hips and knees after investigations of illegal kickbacks to surgeons from manufacturers of the artificial joints to use their products.

The types of problems associated with not having a registry were highlighted last year by an episode involving a Zimmer hip component called the Durom cup. Though some doctors warned Zimmer the device was failing at an unacceptable rate, the company kept selling it for months while it reviewed patient records in an attempt to determine how frequently the problem was occurring. By the time Zimmer temporarily halted Durom cup sales last July, an additional 1,300 patients may have received the device. While Zimmer executives maintained they responded promptly to issue, some experts like Dr. Malchau said that having a registry would have brought the device's problems to light far earlier.

At Montes Herald Law Group, LLP, because we represent people who have been injured and have been forced to undergo major surgeries such as hip and knee replacements, we strongly support efforts by orthopedic surgeons and lawmakers to create an environment that encourages the design and manufacture of safe medical devices. The livelihood and well being of our clients and future clients depend on it. This national registry, whether it is done on a private or governmental basis is major step towards promoting better and safer healthcare for everyone by putting into place mechanisms and systems that are designed to detect dangerous medical products that are failing so that manufacturers and doctors can more quickly respond to issues, and therefore reduce medical treatment and costs for everyone.

If you would like to have a free case consultation with Montes Herald Law Group, LLP., contact us at (214) 522-9401.

Permalink

Proposed Law Will Make Telephone Solicitation of Accident Victims Illegal
June 01, 2009

The Texas legislature has passed HB 148, a bill that has been widely supported by the Texas Trial Lawyers Association, Texas Chiropractic Association and by various insurance groups to stop the practice of soliciting the victims of auto accidents and other incidents illegal via telephone or in person. The bill still needs Governor Perry's signature to become law, but considering the widespread support of this bill from all sides of the political spectrum, Governor Perry is expected to sign the bill into law. The new law would make such solicitation a criminal offense.

This legislation is particularly aimed to stop the practice of "public adjusters," telemarketers and solicitors who contact accident victims by purchasing accident reports from local police departments in order to encourage the victims to see a particular doctor or attorney by promising them money.

While some people may be surprised to hear that the Texas Trial Lawyers Association ( a group of lawyers that primarily represent accident victims) and the Texas Chiropractic Association have long since supported this type of legislation. This legislation is seen as a way to curtail questionable legal and medical practices that negatively impact the value of meritorious claims. This legislation is also expected to help victims of accidents get better medical care and better legal representation by stopping the practice of soliciting accident victims.

This law does not change anything for lawyers, as it was already a crime and an ethical violation for lawyers to make an unsolicited contact of accident victims. However, there was a loophole in the law that allowed chiropractors to purchase these police reports and to contact accident victims. This new law is seen as a way to close that loophole.

While this new law makes the solicitation of these accident victims a crime, it is important to note that this proposed new law does not make it illegal for a doctor or a lawyer to advertise their services because every business has the right to advertise. Just like the insurance companies that pay millions of dollars to advertise and to market their business on TV, radio, internet and in the paper, doctors and lawyers have the same right to advertise their business. Further, just like it is not unethical for an insurance company to advertise, it is not unethical for doctors or lawyers to advertise as long as the ads are not misleading.

At Montes Herald Law Group, LLP, we strongly support this bill, and we hope that it becomes law. We have seen victims of car wrecks who are seriously injured have the value of their claim diminished because the insurance companies have tried to convince people through their advertising campaigns that all attorneys are "ambulance chasers" or that every injured person is faking it. As in all professions, there are a few bad apples that ruin it for everybody. If you are contacted directly by a solicitor, we encourage you to report that contact to the State Bar of Texas and to your local district attorney. The truth is that the vast majority of all doctors and attorneys conduct themselves in a completely ethical and legal manner, and would never engage in such solicitation.

You should never pick your doctor or your attorney simply because they have a good advertisements. What really matters is experience.

Attorney Rachel Montes has earned a reputation as a no-nonsense, assertive advocate determined to take on and overcome powerful opponents. In 2006, she was recognized as one of Dallas' "Best Lawyers Under 40," reflecting not only her success in obtaining millions in recoveries by settlement and trial verdict, but her tireless effort in every case we handle. Mrs. Montes is a dynamic, innovative courtroom and negotiating presence, known for her follow-through and engaging communication style.

For over a decade, Thomas A. (Tom) Herald built and tried cases in defense of insurance companies' interests. Since turning his attention entirely to representing personal injury and wrongful death victims, this experience has been an irreplaceable asset. Simply stated, Mr. Herald - now a veteran of over 120 jury trials and many more favorable settlements - knows how insurers operate and the range of defense strategies they employ. Equally important, he knows how to evaluate your case and counter those strategies accordingly.

Be sure to go to our website at www.MontesHerald.com to learn more about our lawfirm.

Permalink

A Safer America: President Barack Obama Issues an Executive Order to Limit Pre-emption
May 26, 2009

President Obama has made America a safer place for all Americans by issuing an Executive Order to limit the use of "pre-emption" statements by Executive Departments and Agencies to those instances where it can be justified by law or has been expressly stated by Congress. This Executive Order will remove the artificial immunity that big business enjoyed from being held accountable for its actions under the Bush Administration. Recognizing that the Bush Administration took actions that put the safety of American's at risk for the benefit of big business who are more concerned with profits than providing safe products, President Obama has issued an executive order to the heads of all federal departments that makes it clear that "pre-emption" should only be undertaken "with full consideration of the legitimate perogatives of the States and with a sufficient legal basis for pre-emption." President Obama has ordered the heads of departments:

1. Not to issue regulatory preambles claiming pre-emption unless Congress has expressly declared that there is federal pre-emption in the statute;

2. Not to issue pre-emption statements in codified regulations unless justified by law and unless the statement complies with Executive Order 13132; and

3. To review previous statements of pre-emption issued over the past 10 years to ensure that all such statements are in compliance with this Executive Order, and if the statement cannot be justified, to take appropriate action to remove the statement.

This Executive Order is a return to traditional American values that only Congress has the power under our Constitution to enact laws, and that the president does not have the power to go around the Constitution and to enact laws without Congressional authority. As President Obama states in his Executive Order, both the Federal Government and the State Governments have operated concurrently to provide independent safeguards for the citizens of our country.

I encourage you to read the following articles in our blog which deal with Pre-emption: 1.Supreme Court Declares Drug Manufacturers Are Not Immune From State Lawsuits; 2. Texas Court Allows Prempo Lawsuits Against Pfizer, Inc. For Menopause Drug; and 3. Congress Is Considering the Medical Device Safety Act. These articles should help to give you a more specific example of how this Executive Order is likely to impact Americans and to make our country safer for everyone.

At Montes Herald Law Group, LLP, we strongly believe that our system of government and Constitution were designed to protect the rights of everyone, not just big business, and that everyone should be held accountable for their actions, and that the right to a jury trial is a fundamental right of citizens of our country.

Attachments:
ExecutiveOrderRegardingPreemption.pdf

Permalink

Texas Lawmakers Debate New Hazing Law
May 26, 2009

Texas Senator Judith Zaffirini, D-Laredo, has sponsored Senate Bill 48 which seeks to remove the protection of automatic immunity from civil lawsuits and criminal prosecution to all persons who report a hazing incident. Under the proposed law, immunity would only be available to persons who voluntarily report the incident to the dean of students or other appropriate school official before being contacted by school officials investigating the matter, and would require the person to continue to cooperate with the school in its investigation. The law also attempts to make clear that a person cannot get immunity by reporting his or her own acts of hazing or if the person reports the incident in bad faith or with malice. While lawmakers continue to work on getting a consensus for the bill, and it would not be a surprise to see amendments attached to the bill or additional proposed changes. The bill is set for intent and could reach the floor of the Texas Senate any day. You can monitor the status of the bill at http://www.legis.state.tx.us/ by searching in the 81st legislature for "SB 48." If you or someone in your family has been seriously injured or killed as a result of hazing or if you suspect that hazing was involved, it is imperative that you act immediately to investigate the incident. Groups that engage in hazing will quickly cloak all of their activities in secrecy and begin to destroy damaging critical evidence. At Montes Herald Law Group, L.L.P., we are experienced in dealing with hazing cases. We immediately begin the fight for justice and to break through the Code of Silence that exists in fraternities, sororities, and other groups that engage in hazing. We encourage you to view our website regarding hazing cases we have handled at http://www.hazinglaws.com/ and to immediately contact us to discuss your case.

Permalink

North Texas Cities Ban the Use of Cell Phones in School Zones
May 26, 2009

North Texas cities are taking action to reduce traffic accidents by drivers who are distracted by using their cell phones while driving. The list of cities enacting ordinances against the use of cell phones and PDAs to talk, text, email and to surf the internet by drivers while traveling through a school zone continues to grow. While drivers can be cited for using their cell phones and be made to pay a fine ranging from $99 to $200, the violation is not a violation of State law, and therefore does not go on the driver's driving record. Among the cities that have enacted such bans or that are considering a ban include Dallas, Southlake, Highland Park, University Park, Denton, Hurst, Flower Mound, Watauga, Irving, Duncanville, Rowlett and Denison. Across the state many other cities and towns have taken similar action, and it is expected that legislature may enact state-wide legislation this session. It should be noted that Texas law bans the use of hand-held cell phones by school bus drivers who are transporting minors and by drivers under 18 for the first six months after they are issued their license. At Montes Herald Law Group, L.L.P. we treat accidents caused by people talking on their cell phone with the same tenacity that we go after drunk drivers. If you have been injured by a motorist who was distracted by talking or texting on a cell phone or pda, call us now.

Permalink

Federal Database Tracks Damaged Vehicles
May 19, 2009

In February, 2009, the U.S. Department of Justice initiated a new program for the National Motor Vehicle Title Information System ("NMVTIS") which is designed to allow all car owners or prospective car owners to access a federal database outlining the history of their vehicles. For a small fee estimated to be approximately $2.50 per report, anyone can type in a vehicle identification number, and find out if that vehicle has ever been designated "totaled," gone through fire or flood, registered as a taxi or reported stolen. The database also includes the car's odometer reading most recently recorded by the state. Twenty-seven states are participating in the database. The information available through NMVTIS is not as detailed as the information available through other sources such as Carfax. A Carfax vehicle history report, which usually costs about $20.00, gets odometer readings from multiple sources, service records and information on many accidents that don't result in a car being totaled. While a report from NMVTIS will only indicate if the vehicle was ever issued a salvage brand by a state or totaled by an insurance company.

Permalink