Shannon Tesar, the father of the fetus, is seeking damages from the mother’s insurance company based on the death of his unborn child, reports the Associated Press. Tesar’s case was originally denied when the lower court ruled that the mother did not owe a legal duty to the fetus. The reversal has brought up some real concerns that the court is opening the door to other types of suits against mothers for nearly any action that can harm unborn children, such as poor dietary habits.

To put it simply, Tesar could argue that the fetus was like a passenger in the car, and was killed as a result of the accident. This argument rests on the fact that the fetus was a stillborn at the hospital, and therefore at a developmental stage capable of living on its own. One of the threshold questions in this case may be whether the fetus was viable for purposes of affording the unborn child the status of a person in the eyes of the law. Whether or not the fetus is viable will serve to determine if the mother breached her legal duty to the fetus. Should viability not be an issue, this case would likely play out as if the unborn child had already been born at the time of the accident, essentially sitting shotgun when the accident occurred.

A stretch? Perhaps. But viability is not the only legal hurdle Tesar will have to jump. Another difficult question this case poses is whether Tesar will be able to calculate a reasonable determination of damages. Many states do not allow suits based on the wrongful death of a fetus for this very reason- damages are impossible to calculate to any degree of certainty. Courts often return a modest award for children and elderly, as it is much more difficult to quantify life at the beginning and ending states without becoming overly speculative in nature. A successful wrongful death action requires a showing of negligent or intentional conduct of another that brought about a death. In this case, Tesar needs to prove that negligent driving brought about the death of the fetus, and that he has suffered a financial loss.

What distinguishes this case from those involving fetal murder hinges on the nature of the activity that brought about the death. In this case, Tesar is not alleging that the mother intended to kill the fetus, but that her negligent actions played a role in the death and he deserves to be compensated for his loss.

Related Resources:

• Court: Man can sue over death of fetus (Fox 11 online)
• Wrongful Death FAQ (FindLaw)
• Public Pool Drowning Leads to Wrongful Death Suit (FindLaw’s Injured)
• Texas Man Receives A Life Sentence for the Murder of his Unborn Twins: When Feticide is a Capital Crime (FindLaw’s Writ)
• Wrongful Death Overview (provided by The Law Office of Scott M. Miller)
• Auto Accident Injuries and Compensation (provided by Derzon & Menard, S.C.)

Both Jack Rousch and Brenda Strickland, “exited the aircraft following the accident,” according to Fenway Racing President Geoff Smith. “Both were transported to local hospitals, with Roush in serious but stable condition and Strickland with non-life threatening injuries.” No stranger to crashes both on and off the track, Rousch survived a nearly fatal plane crash in 2002, when his plane crashed into a pond in Alabama, reports ABC News.

Personal injuries for aviation accidents are far less common that automobile accidents, but are nevertheless on the rise as the number of private pilots and smaller planes have increased in recent times. There are varying legal standards depending on whether a commercial or private aircraft is involved in an accident, and there are also different requirements for obtaining a commercial and private license. Commercial aircrafts are held to a common carrier standard, which is a much higher duty than what is required for private aircrafts.

Determining liability for the personal injuries sustained in an airplane crash, like other accidents, depends on the causes and circumstances of the incident. In the case of Rousch, officials are still investigating the cause of the crash. Should Jack Rousch be at fault, his negligence would make him liable not only for the personal injuries of his passenger, but also for any property damage the crash may have caused in its unsuccessful landing.

There is a fine line between an accident and negligence. Rousch appears to be, however, one of the few people that are safer on a NASCAR race track than in the sky!

Related Resources:

• NASCAR team owner Jack Roush injuries in Wisconsin plane crash (TMD Celebrity News)
• Jack Roush hurt in plane crash – NASCAR legend (Cherry Creek News)
• Aviation Accidents: Overview (FindLaw.com)
• 30 Injured in United Airlines Flight Turbulence (FindLaw’s Injured)
• Airplane Accidents Information Center (provided by Lane & Lane, LLC)
• Personal Injury Info Ctr (provided by Culpepper | Kurland)

All state car seat laws require a child restraint system, most up to the age of seven, a few up to the age of eight. While many states base the restraint on age and weight, the restraint requirement in Kentucky is based on height: required for anyone under 40″ tall. Once a child is over the age, height and/or weight requirement, then regular seatbelt laws apply.

The child restraint systems also vary depending on the age of the child. In many states, infants are required to be in rear facing seat restraint systems. This is usually applicable until the child is one year old and 20 pounds. After that milestone, car seats are required in most states until the next age/weight milestone. Most states require a car seat until around the age of 5-7, with some states requiring a carseat up to the age of 8 (West Virginia, Virginia and Vermont, for example). Florida only requires a car seat until age 3.

The next common restraint system used is the booster seat. This is meant to work with a car’s seatbelt system, but raises children up to keep the seatbelt from crossing the child on the neck, which is dangerous in an accident. Many state car seat laws require booster seats until the child is between 4-8 (depending on the state) or 40-80 pounds, again depending on the state. California, for example, requires a booster seat until age 6 or 60 pounds.

Some states require that children up to a set age or weight do not ride in the front seat of a car which has a passenger-side airbag. The force with which the air bag deploys is calibrated to protect an adult and can injure or kill a small child, especially if not restrained properly by the seatbelt.

Many state car seat laws have exceptions for emergency vehicles, vehicles like buses and working vehicles such as farm trucks and tractors.

All states carry a civil penalty such as a fine for breaking the law and some will even add points to your driving record, which could affect your insurance premiums. Since the laws vary so widely, if you are in doubt as to your own state’s laws, or are taking a trip to another state, be sure to view a good resource for all the laws. The National Highway Transportation Safety Administration’s list of the Occupant Restraint Laws through September 2005 can be viewed online (pdf).

As the state of California likes to say, click it or ticket. And that goes for your kids, too.

Related Resources:

• Seat Belt and Child Restraint Violations, by State (FindLaw)
• Highway Safety Official Calls for Improvements to Child Safety Seats (FindLaw’s Common Law)
• Drivers Need to be Aware of Recent Changes in Texas Traffic Laws  (FindLaw’s Knowledge Base)
• Child Passenger Restraints: Requirements (California Dept. of Motor Vehicles)
• NHTSA Child Safety  (NHTSA)
• An Overview of Car and Motor Vehicle Accidents (provided by Jensen & DeHaan, PC)
• Consumer Protection & Safety Resources (provided by Caravona & Czack, P.L.L.)

Not only do the Giudices have to contend with the sale of their property, but they have to refute claims by the bankruptcy trustee overseeing their case that they are undervaluing their property and hiding assets. CNN reports that the court papers filed by trustee John Sywilok says that the couple is claiming assets exempt from the bankruptcy filing at a low value including a pool table ($1000) and even their wedding bands ($400).

According to CNN, the attorney for the reality couple, Jim Kridel, says the value set by his clients reflect what someone would pay for it, not the sticker price. “You can’t sell used, personal property for the sticker price. A $5,000 chandelier won’t sell for $5,000. Nobody will buy a used mattress. The real issue in bankruptcy is, what’s the value of everything? And at the time of the bankruptcy, these things didn’t have any value,” said Kridel.

Most people file for bankruptcy when they have made a good-faith effort to repay their debts, but see no other way out. In that case, individuals (or businesses) may declare bankruptcy by filing a petition with the U.S. Bankruptcy Court that asks the court to provide protection and debt relief under the Bankruptcy Code. In addition to that request, the debtor must provide information about his or her assets, liabilities, income, and expenditures. Complete disclosure, candor, and honesty are required. After the filing, a court will decide if one of two results will follow. Either non-exempt assets will be sold or a three to five year repayment plan will be approved by the bankruptcy court.

In the case of our now desperate housewife, the asset sale has been set, but the Giudices hope the auction won’t need to take place. Their public probably hopes it will. If you seek a piece of Housewife glamour, don’t miss the opportunity to consider items from the Teresa Giudice acution such as a foosball table, a faux marble chess set, a suit of armor and at least three chandeliers. Maybe she should just donate the suit of armor to Danielle. But that is another post.

Related Resources:

• Bankrupt Teresa Giudice’s Belongings up for Auction on Aug. 22July 26, 2010 (People.com)
• Ten Things to Think About: Before Filing Bankruptcy (FindLaw)
• 4 Steps to Filing for Small Business Bankruptcy (FindLaw’s Free Enterprise)
• Bankruptcy – An Overview (provided by James H. Monroe, P.A.)
• Bankruptcy FAQ (provided by David G. Volman, Attorney at Law, L.L.C.)

Under the new guidance, VA doctors are not specifically authorized to prescribe medical marijuana, as it remains illegal under federal law. However, under the directive, VA clinics will not interfere with veterans who are already being prescribed medical marijuana from other clinics.

Dr. Robert Jesse, who works in the veterans department as principal deputy under secretary for health, said that “When states start legalizing marijuana we are put in a bit of a unique position because as a federal agency, we are beholden to federal law.” The new directive is designed to reconcile this dilemma. 

The move is part of what appears to be a continuing shift regarding medical marijuana laws in the United States. More states are legalizing it for medical purposes. California is set to vote on legalizing marijuana for recreational purposes as well. And while the Obama administration has not been an advocate of marijuana, they have stated that the justice department is not going to go after dispensaries that comply with state medical marijuana laws.

Laura Sweeney, a spokeswoman for the Justice Department added, “What we have said in the past, and what we have said for a while, is that we are going to focus our federal resources on large scale drug traffickers … We are not going to focus on individual cancer patients or something of the like.”

Related Resources:

• Medical Marijuana – An Overview (FindLaw.com)
• Legalization of marijuana (FindLaw’s LawBrain)
• 73% Support Legalized Medical Marijuana (FindLaw’s Blotter)
• DC Council Approves Medical Marijuana Use (FindLaw’s Blotter)

Under SB1070, signed by Arizona Gov. Jan Brewer in April, police were expected to “make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested” if the if the arresting officer has a “reasonable suspicion” that the person is an illegal immigrant. Reasonable suspicion means that the reasonable person or officer could reasonably believe that a person has been, is, or is about to be engaged in criminal activity (such as being in the country illegally) based on specific and articulable facts and inferences. Reasonable suspicion cannot be a mere hunch.

U.S District Judge Susan Bolton granted the injunction just hours before SB1070 would have gone into effect. The injunction also denies Arizona the right to:

• criminalize the failure to apply for or carry alien registration papers
• criminalize the solicitation, application or performance of work by illegal aliens
• authorize the warrantless arrest of a person if there is reason to believe that person might be subject to deportation.

The Arizona immigration case winding up in the Supreme Court seems a forgone conclusion. The Court could hear the case in October after the end of the summer recess.

The Justice Department issued a statement saying the court “ruled correctly.”

Many disagree with the Justice Department’s assessment. They contend that SB 1070 merely encourages Arizona to enforce what is already federal law and specifically bans racial profiling.

Related Resources:

• Arizona Immigration Lawsuit: Court Blocks Portion of Arizona’s Immigration Law – Full Order (FindLaw.com)
• Arizona Immigration Law (S.B. 1070) (FindLaw’s Learn About the Law)
• Supremacy Clause (LawBrain)
• The Pei Wei 12: Fired for Protesting SB 1070? (FindLaw’s Law and Daily Life)

The ADA was originally signed into law by President George H.W. Bush in 1990. The landmark legislation was designed to help Americans who could not receive equal access to facilities due to disabilities. While much progress has been made under the law, it also remains an ongoing source of complaint and controversy.

The ADA prohibits discrimination due to disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications.

The creator of the legislation, Senator Tom Harkin of Iowa, introduced a resolution last week applauding the progress under the law: “Twenty years ago, we heard testimony from Americans who had to crawl on their hands and knees to go up a flight of stairs; who couldn’t ride on a bus because there wasn’t a lift; who couldn’t even cross the street in their wheelchairs because there were no curb cuts … The ADA has broken down barriers, created opportunities and transformed lives.”

Many businesses find the law to be a source of high costs which benefit very few, to the detriment of the business. Some organizations have made multimillion dollar changes to their buildings and businesses in order to comply with the law and avoid lawsuits. CNN recently reported about the Los Angeles International Airport, where they recently installed grassy “relief stations” for air travelers traveling with guide dogs. The stations came equipped with water bowls and fake fire hydrants to help facilitate canine urination.

Despite the criticism, access to facilities remains a priority of the Obama administration. Kareem Dale, President Obama’s White House adviser on disability policy, said that as technology continues to progress, the ADA will have to be updated to help bring equal access online. “Our goal is to help level the playing field with disabilities to ensure that everyone has an opportunity,” Dale said.

Related Resouces:

• Disability Discrimiation Overview (FindLaw)
• Disability Access: How to File an ADA Title III Complaint (FindLaw)
• Employers: Disability Discrimination (FindLaw)
• What is evidence of total disability? (provided by Jeffrey A. Rabin & Associates, LTD)
• Who Is Eligible for Social Security Disability Benefits? (provided by Robert A. Mordhorst, Esq., P.C.)

Under SB1070, signed by Arizona Gov. Jan Brewer in April, police were expected to “make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested” if the if the arresting officer has a “reasonable suspicion” that the person is an illegal immigrant. Reasonable suspicion means that the reasonable person or officer could reasonably believe that a person has been, is, or is about to be engaged in criminal activity (such as being in the country illegally) based on specific and articulable facts and inferences. Reasonable suspicion cannot be a mere hunch.

U.S District Judge Susan Bolton granted the injunction just hours before SB1070 would have gone into effect. The injunction also denies Arizona the right to:

• criminalize the failure to apply for or carry alien registration papers
• criminalize the solicitation, application or performance of work by illegal aliens
• authorize the warrantless arrest of a person if there is reason to believe that person might be subject to deportation.

The Arizona immigration case winding up in the Supreme Court seems a forgone conclusion. The Court could hear the case in October after the end of the summer recess.

The Justice Department issued a statement saying the court “ruled correctly.”

Many disagree with the Justice Department’s assessment. They contend that SB 1070 merely encourages Arizona to enforce what is already federal law and specifically bans racial profiling.

Related Resources:

• Arizona Immigration Lawsuit: Court Blocks Portion of Arizona’s Immigration Law – Full Order (FindLaw.com)
• Arizona Immigration Law (S.B. 1070) (FindLaw’s Learn About the Law)
• Supremacy Clause (LawBrain)
• The Pei Wei 12: Fired for Protesting SB 1070? (FindLaw’s Law and Daily Life)

Under the new guidance, VA doctors are not specifically authorized to prescribe medical marijuana, as it remains illegal under federal law. However, under the directive, VA clinics will not interfere with veterans who are already being prescribed medical marijuana from other clinics.

Dr. Robert Jesse, who works in the veterans department as principal deputy under secretary for health, said that “When states start legalizing marijuana we are put in a bit of a unique position because as a federal agency, we are beholden to federal law.” The new directive is designed to reconcile this dilemma. 

The move is part of what appears to be a continuing shift regarding medical marijuana laws in the United States. More states are legalizing it for medical purposes. California is set to vote on legalizing marijuana for recreational purposes as well. And while the Obama administration has not been an advocate of marijuana, they have stated that the justice department is not going to go after dispensaries that comply with state medical marijuana laws.

Laura Sweeney, a spokeswoman for the Justice Department added, “What we have said in the past, and what we have said for a while, is that we are going to focus our federal resources on large scale drug traffickers … We are not going to focus on individual cancer patients or something of the like.”

Related Resources:

• Medical Marijuana – An Overview (FindLaw.com)
• Legalization of marijuana (FindLaw’s LawBrain)
• 73% Support Legalized Medical Marijuana (FindLaw’s Blotter)
• DC Council Approves Medical Marijuana Use (FindLaw’s Blotter)

The Los Angeles Times reports that the California Medical Board is alleging Kamrava’s actions in one case “constitute an extreme departure from the standard of practice.” The new charges against the doctor come six months after the Board accused him of a pattern of gross negligence that led to the birth of eight of Nadya Suleman’s 14 children. In addition to the over-implantation in Suleman’s case, the Board says Kamrava has created a “stockpile” of unused frozen embryos that serve “no clinical purpose.”

The new allegations, according to the Times, included two separate cases. In one, Dr. Kamrava implanted seven embryos into a 48 year-old woman referred to in the charging documents as L.C. The medically recommended number of implanted embryos is two. The doctor’s actions caused L.C. to become pregnant with quadruplets, delivered six weeks early. One fetus was lost during the complicated pregnancy; one was born with “profound developmental delays,” according to the Amended Accusation filed at the end of June.

In a separate case, Dr. Kamrava is accused of implanting an embryo into a woman with a history of cancer. According to the Medical Board, Kamrava failed to order additional tests or refer her to a specialist to rule out ovarian cancer, after initial test results were “questionable.” The Times writes that when the patient sought a second opinion after failing to become pregnant, she was diagnosed with stage 3 ovarian cancer, according to the Medical Board documents.

Dr. Michael Kamrava has repeatedly declined comment on the charges.

The California Medical Board has the ability to revoke Kamrava’s medical license. A hearing has been set for October.

Related Resources:

• ‘Octomom’ Doctor Accused of Implanting 7 Embryos in New Patient (FOXNews)
• State Law Summaries: Medical Malpractice and Reform (FindLaw)
• Artificial Conception: Artificial Insemination and In Vitro Fertilization (FindLaw)
• Reproduction (FindLaw’s LawBrain)
• Birth Injuries Information Center (provided by McKeen & Associates, PC)
• Cancer Misdiagnosis: Patients’ Rights (provided by Biancheria & Maliver P.C.)