Mobile Personal Injury Lawyer

RV Awnings Recalled

Billy Cunningham — Thu, 16 May 2013 09:21:29 GMT

Dometic USA has initiated a recall and replacement of its 9100 Power Awnings, Weatherpro Awnings and Motor Service Kits and all the affected power awning units. Apparently, if a step was missed in the installation of the power awnings, the motor can be damaged causing the awning to unfurl. If you have one of these awnings, please heed the recall and immediately have your awning checked. If you own any awning that is installed on your RV or trailer, please check it for stability and security as well.

I previously posted a blog about awnings unfurling, coming off moving RVs and effectively becoming dangerous flying projectiles. (“RV Awnings can Become Missiles” January 12, 2013) In 2010, one of our clients was struck by a 90+ pound awning rod assembly that came crashing through her windshield. She was lucky to survive the event, but continues to undergo major surgical, medical and dental treatments.

This particular recall involves power awning products manufactured between February 13, 2013, (306XXXXX serial #) through April 9, 2013, (314XXXXX serial #). The serial # appears on a label on the right underside of the fabric and on the roller tube. On the power awning field Motor Service Kit the serial # appears on the end cap of the shipping tube. Dometic has identified 27,098 affected units. The Company has advised its other equipment manufacturers and aftermarket dealers to call 1-888-943-4905 for specific replacement instructions. Consumers are being notified directly by the company's dealers. Consumers can obtain specific instructions to determine if their awning is subject to the recall or obtain information regarding repair by calling the toll–free number 1-888-943-4905.

Regardless of what kind of awning you have, before any trip, a walk around to inspect the vehicle and its component parts is always necessary. A detailed re-inspection should be done periodically and before any extensive trip. Some of the safety features to prevent separation can be seen by the naked eye. Because not all potential problems are obvious, an inspection of the component parts by a qualified mechanic should be periodically performed.

Originally posted at The Legal Examiner by Billy Cunningham

Managing New Hurdles in Freedom of Information Act Requests

Clay Rossi — Tue, 14 May 2013 08:35:00 GMT

In many instances it is beneficial to your case to get documents and information outside of the parameters of formal discovery. One popular vehicle is a Freedom of Information Act (FOIA) request. FOIA requests allow for the full or partial disclosure of government documents and are generally available on the federal and state level. However, last month’s 9-0 decision by the Untied States Supreme Court in McBurney v. Young made it a little tougher to access state documents if you are not a resident.

McBurney addressed Virginia’s version of FOIA which granted access rights only to citizens of Virginia. Virginia argued that the policy was reasonable because FOIA’s purpose as a sunshine law is to give citizens the opportunity to monitor the performance of government agencies – therefore non-resident had not interest. SCOTUS agreed.

Opposing the Virginia law were Mark J. McBurney and Roger W. Hurlbert, residents of Rhode Island and California respectively. The petitioners raised both the privileges and immunities clause as well as the dormant commerce clause in an attempt to overturn Virginia’s preferential treatment of its state version of FOIA. The effort failed.

The merits and legal reasoning of the case aside, the ruling means that to utilize FOIA in Virginia (as well as in Alabama, Arkansas, Delaware, Montana, New Hampshire, New Jersey, and Tennessee) you need to have a citizen of the state make the request. However, there is an easy way around the McBurney ruling thanks to organizations like Muckrock, a website dedicated to making FOIA requests primarily on behalf of journalists and activists.

FOIA is a powerful tool for finding information outside of formal discovery and while it has just gotten slightly harder, it is oftentimes worth the effort.

Originally posted at The Legal Examiner by Clay Rossi

Protecting the Client In the New, Old Fashioned Way

Clay Rossi — Tue, 07 May 2013 08:50:00 GMT

The attorney-client privilege is one of the cornerstones of our legal system. So sacred is it that not even the death of the client will work to unseal the lips of the attorney.

Months ago, there were reports that terror suspects held at Guantanamo had their right to the attorney-client privilege violated through eavesdropping by way of bugging devices made to look like smoke detectors. While the American Bar Association waged a complaint about what was going on at Gitmo, there is little doubt that no general public outcry emerged, and no outcry from the bar, because those having their rights violated were viewed as “terrorists.” The lack of outrage brings to mind that the lessons of Martin Niemöller’s poem First They Came . . . have not been learned:

First they came for the communists, 

and I didn't speak out because I wasn't a communist.

Then they came for the socialists, 

and I didn't speak out because I wasn't a socialist.

Then they came for the trade unionists, 

and I didn't speak out because I wasn't a trade unionist.

Then they came for the Jews, 

and I didn't speak out because I wasn't a Jew.

Then they came for the Catholics, 

and I didn't speak out because I wasn't a Catholic.

Then they came for me, 

and there was no one left to speak for me

So now we learn that it’s not just accused terrorists in military prisons who are the target of eavesdropping – it’s everyone. In the wake of the Boston Marathon bombing, one former FBI counterterrorism agent alleged on CNN that “all digital communications - meaning telephone calls, emails, online chats and the like - are automatically recorded and stored and accessible to the government after the fact.” For lawyers, this means that conversations between you and your client are being monitored and saved – by someone – somewhere – for future use. If the claims are to be believed, this means that your attorney-client privilege is being violated even if you don’t practice criminal law, even in your client isn’t accused of being a “terrorist” or even committing a crime, and even if there is no legitimate national security rationale to do so.

How we stop the practice? I don’t know but there is one thing we can do. It is the way that lawyers have shileded their clients for centuries. We can meet with our clients face to face when we know that the details of the conversation are of a scope and sensitivity that it goes beyond the facts of a lawsuit. As attorney’s we are duty-bound to guard the words of our clients, even if it seems the whole world is trying to listen. If this means eschewing phone and e-mail, so be it.

Originally posted at The Legal Examiner by Clay Rossi

High Hurdles: Proving Slip and Fall Cases in Alabama

Dottie Perry — Mon, 06 May 2013 15:32:25 GMT

I read a Minnesota lawyer's post today that described his state's mentality toward victims of slip and fall incidents, which closely mirrors Alabama's: put simply, don't waste your time! Those who recover from slip and fall injuries are not the injured persons, but often the treating physicians who can charge the injured patient upwards of $1,000 an hour for a deposition or testimony about the treatment they provided. (This was an actual dollar quote I got from a doctor treating a client of mine, which was maddening and made me wonder how I could possibly ask all the questions I needed answered in as little time possible. Think, auctioneer-style.) Needless to say, this Minnesota lawyer's frustration echoes my own.

Alabama premises liability law only requires businesses to use reasonable care in keeping customers safe. The law intends to put the burden on the store owner, but that's not the rule courts are enforcing.

In Alabama, premises owners must timely clean and repair all floors, stairs, sidewalks and carpets where customers are allowed to walk. They are also required to warn about the dangers they know or should know exist in their stores. However, stores routinely defend cases brought by injured customers by arguing the customer was at fault because 1) the danger to the customer was open and obvious, and should have been avoided, 2) the customer assumed the risk of walking/stepping/being wherever the accident occurred, or that 3) the store didn't know about the hazard or hazardous condition of the floor or merchandise.

The result is that there are many ways premises liability and serious injuries can arise. Simply going about your day in the mall, grocery store, on a car lot, or in a restaurant, you may not realize that YOU are entirely responsible for every accident you encounter, but you increasingly ARE the only one held responsible! This is not what the law intends, but it is often the outcome of premises liability suits. For example, even if you are cautious, serious and permanent injuries can occur from tripping, slipping and falling on a slippery floor in a retail store, on uneven sidewalks and curbs, on improperly maintained steps, as a result of inadequate lighting or security, or when products in a store fall on shoppers.

While the store or property owner is in a better position to prevent hazards, and warn of those they cannot prevent, they will defend their failure to do so by pointing a finger at the victim.

Originally posted at The Legal Examiner by Dottie Perry

Caught in the Web -- Forever!

Clay Rossi — Tue, 30 Apr 2013 08:11:00 GMT

For years Internet users have been operating under a misconception. We have treated web-content as something ephemeral -- especially when we are the originator of that content. We will write things in e-mails that we never would have put into old-fashioned paper correspondence. We tweet things we might not be inclined to say to a large group of people. We publicly post pictures on Facebook cavalierly that we wouldn't want our parents to see in private. To most, that cyber-world is “someplace else” -- an alternate universe that we can visit but that does not otherwise impinge on our "real world." We've come to discover that such a view is not just wrong -- but really wrong, tragically wrong, dangerously wrong.

While traditional "real world" lampshade-on-the-head at-the Christmas-party mishaps might fill us with more angst, such faux pas, though concrete, were actually limited in time and space and audience. Conversely, while the electronic flickers of technology may appear a candle in the wind, it turns out that an errant tweet may have as much permanency as the pyramids as Giza.

In short, we need to understand that the real world and the cyber universe are not separate places. Lawyers, who have won or lost a law suit because of social media, have been awakened to this reality.

This is why most litigators have come to understand what a powerful discovery tool social media sites are. However, those who have attempted to subpoena information from the likes of Facebook or Twitter know that, while the desired information is likely there, getting it from one of the social media providers is not easy. But is the day coming where searching social media archives will be relatively simple?

One harbinger of easy access is a deal struck between Twitter and the Library of Congress for all tweets made between 2006 and 2010 – that’s 170 billion it you are counting. While the search time for the 133,000 gigabytes currently takes days to search, the information is there and is searchable.

If you think that the Library of Congress plan is ambitious, the LOC UK-equivalent, the British Library, has its sights set on archiving the entire web.

While this massive amount of (now searchable) information represents a potential boon for e-discovery, it also serves as a reminder to think before you (or your client) tweet, post or pin.

Originally posted at The Legal Examiner by Clay Rossi

Marketplace Fairness Act: How Will a Tax on Internet Sales Affect You? (Because it will affect you.)

Dottie Perry — Mon, 29 Apr 2013 10:23:09 GMT

In 2012, internet sales in the United States totaled $226 billion, which is an increase of 16% over 2011, according to the U.S. Commerce Department. That number is expected to increase between 9 and 12% in 2013.

The U.S. Senate could soon pass a bill enabling states to collect sales taxes from stores with online sales of $1 million or more, nationally. Supporters call it a "states' rights" law that will enable states to collect more revenue, and opponents claim it will harm small businesses trying to compete in an international market.

Currently, online sales are only taxed by a state if the seller has a physical presence in that state. The strongest opposition is coming from the states with no sales tax (e.g., Montana, New Mexico and Oregon), claiming the bill forces businesses to become tax-collectors for other states. Montana Senator Max Baucus believes the proposed law will force "small businesses to hire expensive lawyers and accountants to deal with the burdensome paperwork and added complexity of tax rules and filings across multiple states." These three states are not alone in their dissent. Mammoth online companies like Ebay have started recruiting their users to protest the bill, and are lobbying hard to raise the bill's $1 million exemption to $10 million.

President Obama and many governors, Democratic and Republican alike, support the bill, and a bipartisan coalition of senators introduced companion legislation in the House.

How far-reaching could the effects of this bicameral bill be, if it is passed?

It will increase the cost of products because it will give states the right to collect sales tax on out-of-state retailers, whether they sell online, through catalogs or over the phone. (This is by virtue of the fact that only a small portion of the taxes on these sales that SHOULD be recovered under the current tax scheme, ever are.) Retailers will not absorb these new taxes or the cost incurred in collecting them. They will pass them along to the consumer.
States' revenues will likely increase, which, depending on the state, could mean more social service programs or lowering budget deficits. Unfortunately, the bill reportedly does not address where these new taxes will be collected: the home state of the buyer or seller? Congress may leave that up to the states to determine.
Some claim it will invade the privacy of online users. How is unclear.
The bill could pave the way for financial transaction taxes levied by states, which worries Wall Street groups.
It could lead to larger, overall tax reform.
It could hamper business and technological innovation, and stymie market growth.

http://www.youtube.com/watch?v=tSuubh_4VWM&feature=player_embedded

In the past, members of Congress have attempted to pass legislation similar to the Marketplace Fairness Act of 2013 three times, unsuccessfully.

But there are significant differences between the prior proposal and the MFA of 2013. Key differences include an increase in the dollar threshold for the small-seller definition, the requirement that states must provide free sales tax calculation software to remote sellers (other than those that meet the small seller exception), the exclusion of single and consolidated service providers, and a preemption clause which may be interpreted as an expansion of state’s powers.

See http://bit.ly/Zvwzqp .

Proponents of the current bill hope these differences will aid in its passage. If their hopes are realized, the bill could potentially impact every aspect of our market economy, which in turn impacts every aspect of American culture - good, bad or otherwise.

Originally posted at The Legal Examiner by Dottie Perry

The Effects of Strange Side Effects

Clay Rossi — Tue, 23 Apr 2013 07:30:00 GMT

The Atlantic magazine has written a very interesting piece on a Tylenol study that raises many more questions than it answers. It seems that acetaminophen is not only an effective pain reliever but also has “subtle cognitive effects” on those who take the drug which “altered the way subjects passed moral judgments.” What does this mean?

It seems that acetaminophen takes the edge off of people’s anxiety. While this can generally be viewed as a positive, one of the studies raised novel legal issues. One of the ways in which the study was carried out was by testing how high Tylenol users set bond for a fictional prostitute against a control group who did not take acetaminophen. Those who were acetaminophen users set lower bail numbers which was alleged to be a function of their “sense of moral judgment [being] blunted.” (Perhaps even more telling the acetaminophen users seemed not to be so bothered by creepy, surrealistic David Lynch films.)

If the claims about acetaminophen having a cognitive effect prove true, whether a potential juror is taking the drug would seem to be a necessary inquiry during voir dire. Theoretically, jurors who have been chemically blunted will not respond in a typical fashion to those aspects of a case which are shocking. One could infer that this raises the possibility of chemically induced lower verdicts. It might also spell problems to the adherents of the “reptile” method which relies on raising anxiety levels in the jury concerning the defendant’s bad behavior.

While its not clear whether further research will bolster the initial claims concerning acetaminophen, it raises questions that need to be considered. Are there similar or even contrary effects caused by other over-the-counter or prescription drugs? If so, where will the line be drawn between a potential jurors right to medical privacy and counsel’s right to know whether the person takes medications which have an effect on how that person processes the evidence?

Certainly judges don't hesitate to disqualify the drunk or drug-addled jurors who might not act according to the dictates of reason but what do you do with the juror who has merely been dulled? Is there a right to a fully “unimpaired” juror? Does such a juror even exist?

If acetaminophen effects are determined largely emotional in nature, is there any right to question potential jurors about usage, as emotions are improper bases of awards?

Only time will tell.

Originally posted at The Legal Examiner by Clay Rossi

Supreme Court to Decide if FDA Approval Immunizes Drug Manufacturers

Dottie Perry — Mon, 22 Apr 2013 11:12:42 GMT

The Supreme Court has recently heard oral argument in a case that presents the issue of whether the Food & Drug Administration's approval of pharmaceuticals for production, sale and consumption immunizes the manufacturer of that drug. That case, Mutual Pharm. Co. v. Bartlett, stems from a trial in federal court in New Hampshire, where a jury awarded the plaintiff $21 million in compensatory damages. The First Circuit Court of Appeals upheld the verdict and the matter was brought before the United States Supreme Court for oral argument on March 19, 2013.

Bartlett originally sued the manufacturer, Mutual, alleging products liability and design defect claims. In New Hampshire, where Bartlett resides, state law imposes strict liability against manufacturers for producing products in unreasonably dangerous and defective conditions.

The debate this case has sparked is heated. The issue on appeal became whether federal law preempted state law because it was impossible to comply with New Hampshire's law and also FDA regulations of the same product Mutual manufactured.

Presumably, when the Court decides the issues that this case raises about federal preemption and the role of state tort laws governing prescription drugs under the federal regulatory regime, it will adhere to precedence and preserve the states' role in governing drugs, which is complementary to the federal regulation of them.

Originally posted at The Legal Examiner by Dottie Perry

Will You Try My Case?

Pete Mackey — Wed, 17 Apr 2013 14:56:58 GMT

Twenty years ago, a prospective client would often ask me if I was up to the task of trying their case. Perhaps it was my youth or lack of gray hair. I rarely get asked that question now, but it's not because I am a lot older and have a head full of gray hair. No, it's because folks have been conditioned to the idea that they don't want a lawyer that is willing to try their case. They want the lawyer that will settle their case ... for big bucks ... in less than a month ... just like those billboard and tv ads promise.

Though I wish it was true - it's not - at least if you are talking about settling a case for its true value. A settlement can be great, it can be fair or it can be unfairly low. Remember - THE INSURANCE INDUSTRY IS IN THE BUSINESS OF GETTING SUED. It's what they do seven days a week. When you do something every day, you get good at it. When the adjuster tells you "don't hire a lawyer," it is because they believe it will be to their financial advantage to do so. When the adjuster pushes you toward a quick settlement, it is because they believe it will be to their financial advantage to do so.

What you want is a lawyer that will settle your case for fair value and try if that can't be done. If you want to settle it for fair value, you sure have that right. But you should know what you are doing. How do you do that? You do it by hiring the right lawyer. How do you do that? Today, there is so much more that one can do than just ask questions. Throw your lawyer's name in a search engine. See what her website says. Ask others who have had to hire lawyers. And if you don't want to get shortchanged, hire a lawyer who is not afraid to try your case if that is what you decide that you want to do.

Originally posted at The Legal Examiner by Pete Mackey

The beginning of the end for football?

Troy Schwant — Wed, 17 Apr 2013 12:07:14 GMT

Two days ago, a Colorado jury awarded 11.5 million in a lawsuit against Riddell and several high school coaches and administrators over a child's brain injuries incurred as a result of playing football. Does this jury award signal the beginning of the end as football as we know it? Its possible. Here is the USA Today article on the jury award:

A Colorado jury has awarded $11.5 million in a lawsuit originally brought against helmet maker Riddell and several high school administrators and football coaches over brain injuries suffered by a teenager in 2008.

The ruling comes as the company faces a similar lawsuit in Los Angeles, plus a complaint by thousands of former NFL players against the league and Riddell.

Riddell said it planned to appeal the verdict but was pleased that jurors rejected allegations regarding helmet design defects.

"While disappointed in the jury's decision not to fully exonerate Riddell, we are pleased the jury determined that Riddell's helmet was not defective in any way," the company said in a statement. It said it believes it designs and manufactures the most protective football headgear for athletes.

The jury in Las Animas County found that Riddell was negligent in failing to warn people wearing its helmets about concussion dangers. The jury assessed 27 percent of the fault for Rhett Ridolfi's injuries, making the company responsible for paying $3.1 million of the damages.

Ridolfi's family sued Riddell and his coaches after Ridolfi suffered a concussion in a Trinidad High School football practice. He wasn't immediately taken to the hospital and now has severe brain damage, as well as paralysis on his left side.

Three people reached confidential settlements before Saturday's verdict, but two coaches were still defendants at the trial. Ridolfi's lawyer, Frank Azar, said Sunday that he'll ask a judge to find Riddell responsible for paying all $11.5 million in damages.

Riddell contends that the court erroneously excluded testimony from its warnings expert, though Azar disputed that.

"I think this jury has said they're in very serious trouble," said Azar, who said he is representing between 10 and 20 former NFL players with complaints against Riddell.

In October, a jury in Mississippi found Riddell wasn't responsible for an injury to a high school football player who had suffered a stroke after a practice.

In my opinion, you will see hundreds of lawsuits like this across the country and the biggest issue that this will present to football as a sport, will be the inability for high schools, pee wee programs and colleges to obtain insurance for the kids playing the sport. If a high school can't obtain insurance for injuries that their students may have, its distinctly possible that they will simply have to shut down the sport.

Combine this decision with the ongoing litigation against the NCAA by former and current athletes to split up the revenue that colleges and the NCAA receive and it is a brave new world that is facing America's favorite sport.

Originally posted at The Legal Examiner by Troy Schwant