Neuhardt Law Firm, PC

Rabies is a word that strikes fear in everyone. There have been 16 cases reported of rabies since February 22, 2012. Rabies is deadly but preventable and affects all species of mammals, including humans. The preventable part is key. One of the first questions Solomon Neuhardt will ask in the case of an animal bite is whether the animal has been previously vaccinated for rabies. Even with this information, the animal may still be quarantined to see if symptoms develop.

The virus infects the central nervous system, causing swelling of the brain (encephalitis) and ultimately death. It cannot be cured in the animal that has the disease and therefore is always fatal to the animal. According to the Montana Dept. of Livestock: “Most rabies cases in the U.S. involve wild animals: mostly skunks, bats, raccoons, coyotes and foxes. In Montana, skunks and bats account for more than 90 percent of all reported cases.”

In animals rabies can take on two forms: dumb or furious. With the dumb form, animals become shy or hide, and are often unapproachable. They may be sluggish and act depressed or confused. With the furious form, animals are excitable, irritable and aggressive, and suddenly attack if approached. Other signs include drooling; inability to eat, drink or swallow; frothing at the mouth; and staggering, weakness, convulsions and paralysis, leading to coma prior to death. Mr. Neuhardt recommends that if you encounter an animal with these symptoms, even if you haven’t been bitten, contact a veterinarian, animal control, or the county sheriff: professionals trained to handle these cases. Solomon cautions: You need to protect yourself first.

If you are bitten or scratched by an animal or saliva from the animal has come in contact with the mucous membranes of your eyes, nose or mouth, you should immediately and thoroughly wash the area with soap and water and seek medical attention. Contact the county health department (or dial 9-1-1 after hours) as soon as possible.

In people, victims feel fine for up to three months before the first symptom show themselves. First you may experience general, nonspecific flu-like symptoms: malaise, fever or headache. Then, mental dysfunction, anxiety, confusion, agitation, delirium, abnormal behavior, hallucinations, convulsions, insomnia and paralysis may manifest. Death generally occurs one to two weeks after the onset of symptoms.

In light of the above, Solomon Neuhardt recommends that if you are the owner of a dog, cat, sheep, cattle, horses or ferret, you should use the effective and inexpensive vaccines available. In Montana, vaccination by an accredited veterinarian is required for dogs, cats and ferrets. By getting this simple vaccine you protect your pet and you. And you protect yourself from litigation if your pet bites or scratches another animal or a human. Proving you have up-to-date vaccination/boosters is the first line of defense.

If you are a victim of a bite, Mr. Neuhardt suggests you write down the breed, size, sex, whether it had a collar (and collar color) and any distinguishing marks of the animal. Memories fade and it is important to capture any details as soon as you can. Add information later as it occurs to you. This is information that is vital to your health and your attorney who represents you in prosecuting a negligent owner. Neuhardt Law is available to help and can aid you in getting a fair settlement to your claim. 

Tales of Good Samaritans are universal.  The stranger who helps another, without any expectation of recognition or reward, could be anywhere.  We can be the giver of this gift or its recipient. For example, in Great Falls,  four teens, Alison Taylor, 13; Korey Thompson, 14; Kaylee Olson, 14 and Sean Morris, 14; found a wallet containing $700 in cash near some train tracks.(http://www.huffingtonpost.com/2012/07/05/teens-return-lost-wallet-700_n_1651821.html ) They did not give in to the temptation to keep the money but turned it over to the police. The police returned it to Chance Cleveland, who was unaware he had lost it. Through a friend who overheard the four teens discussing the matter, Mr. Cleveland tracked the teens down and was able to thank them with some free ice cream.

Solomon Neuhardt tells us this pleasant story of small town goodness isn’t always how it works out. Being a Good Samaritan can have legal consequences.

When rendering aid in an emergency to an injured person, the person giving the aid owes the stranger a duty of being “reasonably careful.” Without such care and caution, one can be accused of  ”gross negligence or wanton acts or omissions." And within various states there may be slightly differing definitions of those terms. Depending on the circumstances, it may take some serious legal skills to avoid problems. Solomon Neuhardt cautions that the advice of an attorney would be of inestimable aid if you are so accused of any negligence because of your willingness to help someone else.

Before becoming directly involved, consider that not every adult is legally obligated to render aid. You should at least call or seek someone with experience or professional ability to help. And if the injured person is conscious, ask their permission before doing anything at all. If the injured party is unconscious, they would usually be viewed as giving implied consent to any aid you render. “Implied consent” is the idea that had they been able to give consent, they would have.

Some states offer immunity to Good Samaritans. Mr. Neuhardt points out not all do, and not all do in all circumstances. If your voluntary good deeds are negligent or done in a willful and wanton or reckless manner while providing this care, advice, or assistance, a claim of negligent care may be filed against you. Even in states that do grant immunity, two conditions must be cleared to avoid liability for civil damages: 1) if the error is made giving aid at the scene of the emergency, and 2) the volunteer or Good Samaritan cannot render aid with the hope of receiving remuneration or reward.

Solomon Neuhardt suggests referring to an important statute in Montana. Title 50, HEALTH AND SAFETY, section 50-6-505 gives the basic rule: a Good Samaritan or volunteer is “immune from civil liability for a personal injury that results from that care or treatment or from civil liability as a result of any act or failure to act in providing or arranging further medical treatment for the individual . . . unless . . ., acts with gross negligence or with willful or with wanton disregard for the care of the person . . . .”

Another important facet is rendering aid within the scope of your training. Medical professionals who happen upon an accident and who give aid are held to a higher standard than someone who is entirely untrained. The short version of this is that you still have to follow the standards of your profession and act within your skill level.

Mrs. Roxanne Gourneau of Wolf Point, MT has hired Billings attorney Solomon Neuhardt to represent her in a wrongful death lawsuit against the Wolf Point School Board, the State of Montana and Henry Hamill, the District Superintendent. The complaint alleges that these defendants contributed to the suicide death of 17 year-old Dalton Gourneau, on November 23rd, 2010.

Dalton, a student at Wolf Point High School, was a member of the wrestling team. After being accused of having chewing tobacco on his person, the young man was told he would not be allowed to participate in athletic events for 60 days. In this period, Wolf Point would be competing in state level events.

That same day, Dalton met with the Athletics Director, then the School Principal and finally with the District Superintendent to see if the policy could be modified. After being rejected at every step in the process, the young man returned home, composed a note and took his own life by gunshot to the head. His parents were not contacted by the school, and Dalton had no history of mental illness or depression.

Alleged in the suit is that the school officials performed no investigation, didn’t fully inform Dalton of available options and mishandled the incident by not involving his parents. A trial by jury has been requested with damages to be determined at trial.

For the age group 10-34, suicide is the second leading cause of death in Montana, topped only by automobile accidents.  

The Neuhardt Law Firm is based in Billings Montana and handles personal injury and wrongful death cases across the state. Mr. Neuhardt remarked, “We expect our school officials to provide a safe, positive environment. In this case, a vulnerable young man was the victim of rigid adherence to a flawed system without regard for his concerns or the mitigating factors. There’s no excuse for such callousness.”

Read more about this case in the news: Mom files lawsuit after rash of child suicides

Last month’s jury award in a wrongful death suit illustrates both the tragedy and the path to a just outcome when a loved one dies from avoidable error. In this case, it was the death of Gerard Heidt, at the time a 42 year-old father of four. His widow sued Billings Clinic and Dr. Faranak Argani. The tragic part is obvious – a middle-aged father struck down and a grieving widow. The path to a just outcome is rather more involved.

The wrongful death happened in 2005, a year after Mr. Heidt went to the Billings Clinic complaining of chest pain. One of Mr. Heidt’s heart valves was “leaky” – a condition where the valve doesn’t close completely and blood can push past it. The lawsuit alleged that this condition wasn’t properly considered. Dr. Argani, who is an internal medicine doctor, saw him in the ER but didn’t seek a cardiologist’s opinion; instead the diagnosis was a torn muscle in the chest wall – unrelated to his heart condition.

Because no cardiac consult was recommended or performed, Mr. Heidt was not monitored for a leaky valve, nor did he get what could have been lifesaving surgery. Had he been referred to a heart specialist, it is likely the leaky valve would have been replaced. The condition eventually killed him. Five years after his death in October of 2005, a jury awarded his widow and children a total of $1.7 million dollars for the mistake.

Why so long?

Many of the details of the process in this specific case are private and fall under attorney/client privilege. But there are some common reasons why a large lawsuit like this can take years to resolve. Some of these are:
 

• Initial shock – A sudden death throws a family into turmoil. The first response isn’t to contact a lawyer, but to handle the burial and begin the grieving process. Although faster action is better, it’s not reasonable to expect a widow to think clearly about seeking damages right away. And even when she did, the attorney won’t file the lawsuit without gathering as much information as possible – both to see if an action is justified or worthwhile.
• Before filing – the wrongful death attorney will need to get medical records (including autopsy reports), interview parties involved (clinic staff, other medical personnel) and obtain expert medical opinions about the issues involved. All this take time. Once an action is filed, the opposition will want to do the same – they may even delay things if they think it is to their advantage.
• Settlement offers and negotiation – After each side (and there may be many: the widow and her children, the clinic, the doctor and any malpractice insurance companies) has gathered the facts to their satisfaction (looking for evidence that supports their point of view) there may be several rounds of settlement offers. Only when this process fails will the case move to a jury trial and court.
• Court – Actually getting the matter to court and having the trial can take many months as well. Motions will be filed and addressed by the judge, and then each side will present their evidence over the course of a trial with all the attendant delays.

In the Heidt case, the trial was only a week long and the jury came back with their verdict in six hours. The original suit was filed for $1.9 million dollars and the award was very close to that, with the majority going for lost wages, loss of companionship and emotional suffering. A portion of the total ($120,000) was to cover the cost of college for the children.

Please contact Solomon Neuhardt if you would like more information about this case, or would like to speak with a wrongful death attorney in Montana.

Rulings bring attention to an important consitutional question

Solomon Neuhardt, an injury attorney in Billings, Montana, is watching the development of new cell phone law carefully. “It may have a significant impact on how fault is decided in automobile accident cases,” says Mr. Neuhardt. At issue is whether or not the police need a warrant to search a cell phone after an accident.

“The law is being decided in cases across the nation, with judges in California allowing warrantless searches and those in Ohio denying them.”

The matter remains untested in Montana courts, but would impact what investigation tools the police have available after an accident. If the police can simply look at a driver’s cell phone and see that they were texting at the time of the accident it would establish grounds for a ticket (texting while driving is against current Montana law) and might indicate responsibility for the accident.

“Checking cell phone records by subpoena is a useful tool when constructing a case,” says Solomon Neuhardt, “but it is currently part of the investigation that lawyers have to do when establishing the facts.” If the police are allowed to check at the scene, not only is it more likely that a record will be preserved in the police report, but it may guide further inquiry.

The requirement of a warrant before searching is, at the root, a Constitutional question. It falls under the Fourth Amendment, which starts out: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

Until the United States Supreme Court rules on the issue of cell phone searches, it remains up to the States to decide whether the practice is legal and what constitutes an “unreasonable search.” Privacy rights advocates will likely push to bring the matter before the Supreme Court in the hopes of getting a ruling in favor of not allowing a warrantless search.

Here’s something to wonder about. A drug approved in 1957 (that’s right, more than fifty years ago) has finally been recommended for removal from the U.S. marketplace. The wonderment comes in when you think about how many people may have been adversely affected by the medication.

Propoxyphene Napsylate, sold in the U.S. under the trade names Darvon and Darvocet, wasn’t actually recalled – even though there was evidence that the pain medication caused heart arrhythmias. It was only “recommended” by the FDA that manufacturers quit selling it. Partly, this was because of the addictive nature of the drug. Allowing it to be sold (with a strong warning) would let doctors have a chance to either wean their patients off of it (if they were hooked) or switch them to another product.

The concern comes from two criticisms. Although the first FDA vote to remove it from sale came in July of 2009, only a warning was added to the labeling at that time. It wasn’t until mid-November of this year that the drug was no longer being sold. In that time, both Britain and Europe overall stopped the sale of propoxyphene, leading to an estimated one to two thousand unnecessary deaths in the States.

The death drug reputation

In hindsight it isn’t surprising that this medication, which had the same restrictions as Tylenol with codeine, was popular as a “death drug.” Organizations that advocate suicide for terminal illness were mentioning it for years – it was easier to get than the more restricted barbital type meds and just as deadly (or more so) when people intentionally overdosed on it.

The current information is that unintended deaths on this medication were not just the result of accidental overdose, but also from heart rhythm problems the drug caused. This particular adverse effect went unmentioned for the 50 years the drug had been marketed. To make matters worse, it was considered a good alternative to codeine containing products in people with a genetic variant that didn’t allow them to get the full benefits from codeine.

The legal outlook

While there is certainly a good case to be made for anyone who died from a heart rhythm disorder in the past year (since the information about risks has been available) it is unknown how difficult it will be to place the blame directly on this drug. Even though a study in dogs that goes back to the 70’s showed cardiac abnormalities, no follow ups were required by the FDA and, in fact, they delayed their removal recommendation until more human data became available – this was the rationale for the year-long delay from July of last year.

A quick phone check of Billings’ hospitals shows they haven’t had the drug on their formularies (the list of drugs they carry) for some time. The toxicity risks have been known in the medical community, even while it was still being prescribed by physicians outside of the hospital environment.

An excellent report by the Public Citizen tells the tale of requests made in 1978 and again in 2006 to have the drug recalled.

Even with this clear evidence of probable negligence, it can be extremely hard to pin down whether any individual patient actually died from the drug or another cause. Statistically, we know that people did die, but which? It remains to be seen whether a class action lawsuit or wrongful death suit will succeed against either the name brand or generic manufacturers.

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About Solomon Neuhardt:

Solomon Neuhardt is the owner and lead attorney at Neuhardt Law Firm, a member of the American Bar Association, the American Association for Justice, and represents individuals and families in personal injury cases, including accidents, medical malpractice, defective products, dog bites, and insurance disputes.

Forty years ago, Katie had just turned eleven. She was in the backseat of the car, a 1969 Nash Rambler. The car was solidly built, her father was driving and her mother was in the passenger seat. There was no reason to for an eleven-year old to feel anything other than safe and secure.

The family was stopped at a major intersection, Katie’s father waiting for the light to change. Coming from the left, in cross traffic, a semi-truck started to make a right-hand turn. The driver had the green light and plenty of room to turn into the lanes on the Rambler’s left. Ordinarily, this wouldn’t be a problem. But there was a problem.

The trailer was fully loaded. The semi-truck was going a little fast. One of the outside tires on the trailer was flat. These factors combined to create a tilt towards the outside of the turn. Centrifugal force did the rest.

Katie heard her father swear. She looked up in time to see what looked like a steel wall falling slowly toward the stopped car.

There was nothing her father could do. The cross traffic prevented him from going forward and there were other cars on his right and behind. Katie remembers there was just enough time for her dad to look at his wife. She says there was a “goodbye, I love you” look exchanged. And then the overturning trailer hit.

The next thing Katie remembers is her father yelling at her to climb out the now shattered back window. The roof of the car had crushed downward so that he was pushing on her with one arm squeezed between the top of the front seat and the collapsed roof. There was a little blood from the broken glass. She could see the trailer of the truck had split open and crates were spilling out onto the hood of the car.

Fast forward

No one died. Katie and her father weren’t seriously injured.

It turned out the driver knew he had a flat but thought he could make it to his destination. The truck was also loaded improperly with the cargo distributed unevenly.

Her mother was treated and still has some back pain that comes and goes. Insurance paid for the car. Ramblers were discontinued the next model year. Forty years later, the incident should be just a long ago childhood memory; except it isn’t.

Katie has her own children now. She’s as normal as anyone, except when she’s driving anywhere near a semi-truck. She absolutely cannot travel alongside a big rig. She has a hard time even passing one on the highway. She follows them, when she can’t avoid it, at least three car-lengths behind. She is visibly shaken when she’s trapped in city traffic next to a semi-truck.

Katie avoids truck stops on the interstate. She won’t even walk next to a parked semi if there is another way to go.

There are scars and there are scars. Katie can’t get over her phobia and the little movie that plays in her head when she’s too close to a big truck – the movie where the wall of steel is falling toward her.

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This blog post is based on a true story, but the names have been changed to protect privacy. We deal with tragic incidents like this more often than you think and it can be heartbreaking.

Looking back over some of this year’s more interesting cases

It’s been another interesting year here at Neuhardt law. Some of the cases feel familiar – passengers who are injured in single-vehicle crashes – and others are new, like the “pack of dogs” attack. We can’t release the dollar amounts for the settlements, these are confidential. I’ve also removed any identifying information to protect client privacy.


If nothing else, this partial list of the cases we handle should make drivers aware that serious injury accidents are a part of life here in Billings. Unfortunately, tragedies happen every day in Montana, and they don’t always make the news, other than a short paragraph or two. With the holidays fast approaching, be aware, be safe. And be very careful about getting in any motor vehicle when the driver is impaired.


January 26, 2010- Settled for Confidential six figure amount. We represented three teenage boys that where passengers in a vehicle that was drag racing. The teen that was driving ran a stop sign and crashed head-on into another vehicle. My clients suffered numerous, life-long injuries.


This case mirrored a couple of others from the past – one in 2008 and another in 2009 -- where passengers were injured when impaired drivers crashed their own vehicles. Both settled for six figures as well.


March 4, 2010- Settled for Confidential six figure amount. We represented a young woman whose car was stuck on the driver’s side as she drove through an intersection. The accident damaged her knee and caused a traumatic brain injury. We are still pressing a claim against her car insurance company for not paying her medical bills in a timely manner.


This case parallels one from September of last year (which also settled for a six figure amount) where we represented a woman who was traveling through an intersection when she was t-boned after the defendant ran a red light. Her spleen was injured in the accident and she underwent a splenectomy.


March 29, 2010- Settled for Confidential five figure amount. We represented a woman who was hit from behind when she slowed down to turn into her driveway. The force of the crash threw the car onto a neighbor’s front lawn. The other driver stopped, got out of her car and looked at my client through the car window. She then jumped back in her car and drove off. A witness followed her and called 911. The tort was under the influence of alcohol and before the police came, crashed her car into the side of a building. She was arrested that day for her 2nd drunk driving incident.


May 4, 2010- Settled for Confidential six figure amount. We represented a family that lost their son. He was killed while riding his motorcycle by a vehicle that pulled out in front of him. The driver of the other vehicle was under the influence of drugs at the time of the accident.


June 24, 2010- Settled for Confidential five figure amount. We represented a woman that was attacked by her neighbor’s three dogs. My client suffered injuries to her leg and had post traumatic stress disorder as result of the attack.


July 2010- Settled for Confidential eight figure settlement amount – We represented a middle aged woman with a teenage daughter who was a victim of horrible medical malpractice. Our client was in the ICU of a hospital when her oxygen supply was cut off. She was trapped in her hospital bed at the mercy of the doctors and staff as she slowly started to die. By the time her oxygen was restored she suffered severe permanent brain damage. She was in the hospital for almost 4 years before she was finally able to leave.


June 14, 2010- Settled for Confidential six figure amount.We represented a young woman and a young man that were involved in a single roll-over accident. They were passengers in a truck driven by a young man who was drinking while driving. While travelling on back roads to Billings, the driver lost control of the truck and overcorrected, causing the vehicle to flip. As a result of the accident, one client’s back was broken and she had to have a rod implanted. The other had a fractured disc in his back.


November 11, 2010- Settled for Confidential six figure amount. We represented the family of a 4 year old boy that was killed instantly in a motor vehicle accident. The boy was in the backseat on the passenger side of the vehicle. The driver pulled out and was hit by a motorcycle. The motorcycle was traveling at a high rate of speed and the rider was high on marijuana.


Alcohol and drug use continue to cause a great deal of damage
If I had to pick a theme, it would be that operating a few thousand pounds of metal at high (or even low) speeds is a recipe for tragedy.


Lock the car; take the keys; call a cab. You can even do what some creative people do: set up a tow from the bar or the party. You can get Hansers or another tow company to take you and your car back home. There’s no risk of a ticket or an accident, and when you wake up the next day, your car is in the driveway.

Unscrupulous truckers purchasing fake health certificates

One of the federal requirements for commercial truck drivers is a valid health certificate. The health card is issued every two years and requires drivers to get a physical from their doctor. The purpose of the law is to keep drivers off the road who might not be able to drive safely because of a medical condition.

Some of the medical conditions that may exclude a driver from operating a commercial vehicle are:

• Diabetes that requires insulin to keep blood sugar levels under control
• History of heart attack, angina, or any cardiovascular disease that might cause fainting, dizziness or collapse.
• A history of seizure.
• High blood pressure history or medication that may interfere with the ability to drive.
• Diagnosis of narcolepsy.
• Current diagnosis of alcoholism or evidence of narcotic use.
• Mental illness or psychiatric condition that might impair the ability to drive.
• Any other medical condition, such as arthritis or neuromuscular defect, that would impair driving ability.

Not meeting vision and hearing standards will also medically disqualify a driver.

The incentive to cheat

While the list above may seem like commonsense, for many drivers they face a loss of their jobs and careers if they expose any medical condition on the list. While the public is more concerned about safety, individual drivers may worry more about loss of income. Like anyone else, they probably think they are the exception to the rule, and ‘it won’t happen to me’. But every year it does happen – over and over again – a driver falls asleep or has a heart attack. And a 40-ton semi-truck goes careening out of control.

Because the health certification is required to maintain a commercial driver’s license, truckers have found several ways to cheat the system.

How they cheat

There are several methods on offer. The first is to simply ignore the rules altogether. Not having a valid medical certificate while driving will get you a fine, but they don’t pull your license.

Another way to cheat is to print up a blank heath card and fill it in. The card and certificate are used to obtain a CDL and have to be on the driver’s person when operating a semi-truck. However, there is no easy way to verify it, especially when issued by an out of state doctor, so there is a temptation to do a little ‘computer magic’ and print one up at home. The basic forms can be downloaded from the Department of Transportation’s own website.

The methods above have fallen out of fashion with the rise of quick-stop health clinics. These are located right where drivers need them – in the parking lots of truck stops. Some even go so far as to have mobile locations that move across the country, offering services wherever drivers are likely to congregate.

For $40 to $80, a quickie medical exam and certificate can be had from a real professional (and this can be a chiropractor, physician assistant or advanced practice nurse as well as an MD). The assumption is that few, if any tests will be done and the driver only has to answer questions about their medical history to pass. A bit of conversation with other drivers will give the correct answers. And if you fail at one truck-stop doc, try another tomorrow. There is no central database to check.

An article on MSN describes one trucker’s experience:

Caffee remembers that he had trouble reading past the top two lines of the eye chart. "I told her I wear glasses, and she OK'd me," he said, even though his driver's license didn’t say he was required to wear glasses.

The whole thing was over in 20 minutes, and Caffee emerged with a medical certificate that states he is healthy enough to drive a commercial truck for the next two years. Cost of exam: $30.

Why does this matter legally?

When a semi truck accident attorney is pursuing a case against a trucking company, one of the considerations is the condition of the driver at the time of the accident. If the driver is concealing a medical condition it can be a critical part of the case. Your attorney will obtain a copy of the driver’s current medical certificate and look into the validity of the document.

Drivers who cheat the system endanger everyone else on the roadway. If you have been the victim of a trucking accident, the best advice is to seek out an aggressive injury lawyer who will dig into the facts of the case.

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About Solomon Neuhardt:

Solomon Neuhardt is the owner and lead attorney at Neuhardt Law Firm, a member of the American Bar Association, the American Association for Justice, and represents individuals and families in personal injury cases, including accidents, medical malpractice, defective products, dog bites, and insurance disputes.

Neuhardt Law recently assisted a Billings woman in her personal injury case against her neighbors.

Ms. Person was set upon and attacked by their 3 boxer dogs in July 2009. The attack resulted in numerous bite wounds and a series of rabies shots.

We produced a successful settlement for Ms. Person and the Billings Gazette recently wrote about our story, read it here.