Recent Blog Posts in January 2011

The American Association for Justice is warning the public about the sweeping new Health Act intended to replace Obama's health care law. AAJ President C. Gibson Vance issued the following reaction to the proposed Health Act and its effects on plaintiffs' rights:

The 112th Congress has been in session for only a few short weeks, and we have already seen that elections indeed have consequences. Instead of focusing like a laser on jobs, the U.S. House of Representatives has gone back to the past.

The House Judiciary Committee's first hearing was entitled "Oversight Hearing on Medical Liability Reform--Cutting Costs, Spurring Investment, Creating Jobs." Yesterday, Rep. Phil Gingrey (R-GA) introduced H.R. 5, the Health Act. The bill is an exact copy (it even has the same bill number) of H.R. 5 from the 109th Congress. The only difference is now there is a new justification; pass this bill to replace the new health care law.

H.R. 5 is a very broad bill. It applies to all claims against health care providers, regardless of the theory of liability. It also applies to cases against the pharmaceutical, nursing home, and insurance industries. The bill preempts state law that is more favorable to patients while keeping in place state law that favors medical providers.

Here are some of the major problems with the bill:

• Breathtaking scope. The bill applies to claims against health care providers, pharmaceutical and insurance giants, and the nursing home industry.
• Reduced statute of limitations. The legislation reduces the amount of time an injured patient has to file a lawsuit to one year from the date the injury was discovered or should have been discovered, but not later than three years after the "manifestation" of injury.
• Arbitrary and discriminatory $250,000 cap on non-economic damages. The bill limits non-economic damages to $250,000 in the aggregate, regardless of the number of parties against whom the action is brought.
• Elimination of joint liability for economic and non-economic damages. The bill completely eliminates joint liability, preempting the law in many states.
• Severe restrictions on contingent fees. The bill gives the court power to restrict plaintiff's attorney fees regardless of whether recovery is by judgment, settlement, or any form of alternative dispute resolution.
• Severe restrictions on punitive damages. The bill limits punitive damages to $250,000 or two times the amount of economic damages, whichever is greater. It further provides that punitive damages may only be awarded if the plaintiff proves by an impossibly heightened evidentiary and pleading standard.
• Immunity from punitive damages in product liability cases. The bill completely immunizes manufacturers of drugs and devices that are approved by the FDA from punitive damages. 

Peggy Gargis of Reuters reports that over 1,200 lawsuits against Pfizer over its drug Chantix will be centralized in federal court, in the Northern District of Alabama.

Chantix is a drug touted to help people stop smoking. The lawsuits allege that Chantix leads to depression and suicide, and that the drug was put on the market without adequate warnings. The drug was apparently not tested in patients with mental conditions. As a result, thousands of users have died or have been seriously injured.

Pfizer defends its drug, claiming that it acted responsibly and that no reliable scientific evidence supports the plaintiffs' claims. Pfizer has added warnings to the drug's package insert.

Avoid car accidents and breakdowns out there on the road in these colder months. The National Highway Traffic Safety Administration offers the following tips to be safe this winter.

Get your car serviced now.

• Visit your mechanic for a tune-up and other routine maintenance.
• Have your entire vehicle checked thoroughly for any leaks, bad hoses, or other needed parts, repairs, and replacements.
• Check your battery. When the temperature drops, so does battery power. Also, be aware that it takes more power to start your vehicle in cold weather than in warm. Find out if your battery is up to the challenges of winter by:
• Having your mechanic check your battery for sufficient voltage;
• Having the charging system and belts inspected;
• If necessary, replacing the battery or making system repairs, including simple things like tightening the battery cable connections.

Check your cooling system.

When coolant freezes it expands. This expansion can potentially damage your vehicle's engine block beyond repair. Don't let this happen to your vehicle this winter.

• Make sure you have enough coolant in your vehicle and that it's designed to withstand the winter temperatures you might experience in your area.
• A 50/50 mix of coolant to water is sufficient for most regions of the country. See your vehicle owner's manual for specific recommendations.
• Thoroughly check the cooling system for leaks or have your mechanic do it for you.
• If your system hasn't been flushed (draining the system and replacing the coolant) for several years, have it done now. Over time, the rust inhibitors in antifreeze break down and become ineffective. Coolant also needs to be refreshed periodically to remove dirt and rust particles that can clog the cooling system and cause it to fail.

Fill your windshield washer reservoir.

You can go through a lot of windshield wiper fluid fairly quickly in a single snowstorm, so be prepared for whatever Mother Nature might send your way.

• Completely fill your vehicle's reservoir before the first snow hits.
• Use high-quality, "no-freeze" fluid.
• Buy extra to keep on hand in your vehicle.

Check your windshield wipers and defrosters.

Safe winter driving depends on achieving and maintaining the best visibility possible.

• Make sure your windshield wipers work and replace worn blades.
• If you live in an area that gets a lot of snow and ice, consider installing heavy-duty winter wipers.
• Check to see that your window defrosters (front and rear) work properly.

Inspect your tires.

• If you plan to use snow tires, have them installed now. Check out www.safercar.gov for tire ratings before buying new ones. For existing tires, check to ensure they are properly inflated (as recommended by your vehicle manufacturer), the tread is sufficient with no uneven wear, and that the rubber is in good overall condition. Note that tire rubber starts to degrade after several years, and older tires need to be replaced even if they have not seen much wear.
• Regardless of season, you should inspect your tires at least once a month and always before setting out on a long road trip. It only takes about five minutes. If you find yourself driving under less-than-optimal road conditions this winter, you'll be glad you took the time.
• Check tire pressure and make sure each tire is filled to the vehicle manufacturer's suggested PSI (pounds per square inch) of air pressure, which is listed in your owner's manual and on a label inside the driver's door.
• Keep a tire pressure gauge in your vehicle at all times and check pressure when tires are "cold" -- meaning they haven't been driven on for at least three hours.
• Look closely at your tread and replace tires that have uneven wear or insufficient tread. Tread should be at least 1/16 of an inch or greater on all tires.

Know your car.

Every vehicle handles differently; this is particularly true when driving on wet, icy, or snowy roads. Take time now to learn how to best handle your vehicle under winter weather driving conditions.

• Practice cold weather driving when your area gets snow -- but not on a main road. Until you've sharpened your winter weather driving skills and know how your vehicle handles in snowy conditions, it's best to practice in an empty parking lot in full daylight.
• Drive slowly. It's harder to control or stop your vehicle on a slick or snow-covered surface. On the road, increase your following distance enough so that you'll have plenty of time to stop for vehicles ahead of you.
• A word of caution about braking: Know what kind of brakes your vehicle has and how to use them properly. In general, if you have antilock brakes, apply firm pressure. If you don't have antilock brakes, pump the brakes gently.
• If you find yourself in a skid, stay calm and ease your foot off the gas while carefully steering in the direction you want the front of your vehicle to go. This procedure, known as "steering into the skid," will bring the back end of your car in line with the front.

Plan your travel and route.

Keep yourself and others safe by planning ahead before you venture out into bad weather.

• Check the weather, road conditions, and traffic; plan to leave early if necessary.
• Don't rush! Allow plenty of time to get to your destination safely.
• Familiarize yourself with directions and maps before you go, and let others know your route and anticipated arrival time.
• Keep your gas tank close to full. If you get stuck in a traffic jam or in snow, you might need more fuel to get home or keep warm. Note: To avoid carbon monoxide poisoning when stuck in snow, be sure to keep your vehicle's exhaust pipe clear of snow and ice, run your vehicle only in the open with the windows partially down, and run it only long enough to keep warm.
• If road conditions are hazardous, avoid driving if possible. Wait until road and weather conditions improve before venturing out in your vehicle.

Stock your vehicle.

Carry items in your vehicle to handle common winter driving tasks, such as cleaning off your windshield, as well as any supplies you might need in an emergency. Keep the following on hand:

• Snow shovel, broom, and ice scraper;
• Abrasive material, such as sand or kitty litter, in case your vehicle gets stuck in the snow;
• Jumper cables, flashlight, and warning devices such as flares and markers;
• Blankets for protection from the cold;
• And a cell phone, water, food, and any necessary medicine (for longer trips or when driving in lightly populated areas).

Learn what to do in a winter emergency.

If you are stopped or stalled in wintry weather, follow these safety rules:

• Stay with your car and don't overexert yourself;
• Put bright markers on the antenna or windows and keep the interior dome light turned on;
• To avoid asphyxiation from carbon monoxide poisoning, don't run your car for long periods with the windows up or in an enclosed space. If you must run your vehicle, clear the exhaust pipe of any snow and run it only sporadically -- just long enough to stay warm.

Protect yourself and your loved ones.

• Remember to always wear your seat belt.
• Do not text or engage in any other activities that may distract you while driving.
• While thick outerwear will keep your children warm, they can also interfere with the proper harness fit of your child in their car seat. Place blankets around your child after the harness is snug and secure. 

On Monday, January 3, 2011, the California Supreme Court held that the 4th Amendment permits police officers to search the contents of the cell phone incident to a lawful arrest.

In People v. Gregory Diaz, the defendant was arrested after participating in a drug sale with a police informant. The defendant was taken to the sheriff's station, where his cell phone was seized. After the defendant denied involvement in the drug deal, the deputy who arrested the defendant searched the defendant's text messages in his cell phone. The deputy's search of the phone occurred about an hour and a half after defendant was arrested. The deputy found an incriminating message in the phone, showed it to the defendant, and the defendant confessed to participating in the drug deal.

The defendant plead not guilty to the charge of selling a controlled substance, and moved to suppress the incriminating text message and his subsequent confession. He argued that the warrantless search of the cell phone violated the Fourth Amendment.

The California Supreme Court held that the defendant's cell phone was "immediately associated with [defendant‟s] person," and therefore, the warrantless search of the cell phone was valid. The Court stated that because the cell phone was immediately associated with the defendant's person, the deputy was entitled to inspect its contents without a warrant.

The dissent argued that the privacy interests in cell phones is great, considering technological advances that make smart phones similar to personal computers, and the invasion of privacy of searching these phones without a warrant is also great. The dissent stated that this type of search is highly intrusive and unjustified, arguing that it fails to meet the warrant requirement or the reasonableness requirement of the U.S. Constitution. 

Nevada rings in the new year with several new laws taking effect as of January 1. Among them, as reported by the Daily Sparks Tribune:

• AB162 requires health insurance companies to screen and provide treatment for autism spectrum disorders up to a cap of $36,000 a year, until the child is 18 unless still in high school.

• Another law requires energy efficiency evaluations of homes before they are sold, if requested by a prospective buyer. Such evaluations can be waived by mutual consent between the buyer and seller. Regulations adopted this fall allow home sellers to satisfy the evaluation by providing a year's worth of utility bills.

• The construction worker safety bill, AB148, requires 10 hours of OSHA-certified safety training for employees and 30 hours for supervisors, with ongoing training required every five years.

• SB303 adopted the Interstate Compact on Education Opportunity for Military Children. Its provisions make it easier for children of military families to transfer between schools when their parents are forced to move between states while on assignment.

• AB513 sets pre-licensing and continuing education requirements for escrow agents, eliminates exemptions for consumer finance companies from licensing and other requirements imposed on mortgage brokers; and requires certain fee disclosures by brokers.

• AB202 requires cosmetologists, hair designers, aestheticians, electrologists, manicurists, nail technicians and cosmetic demonstrators to complete four hours of training on infection control before their license is renewed.

Read more: Sparks Tribune - New Nevada laws take effect today