100% natural cancer

“Natural” foods and products seem to be all the rage these days.  Buzzwords like “organic,” “free range,” and “gluten free” convey a sense of health and superiority to other products.  But not all natural products are good for you.

Talcum powder on black background

This is not the powder you’re looking for.

Talc in talcum powder is a naturally-occurring mineral, similar in composition to asbestos. Research suggests, however, that talc may be linked to ovarian cancer.  Two recent cases against Johnson & Johnson in St. Louis found that they knew about the risk of ovarian cancer and never disclosed it.

What does this mean to you:

Interestingly, talcum powder is not regulated by the FDA, as other products are, but the makers should still warn about its potential dangers.  I guess talc is not considered a drug.  Or, you know, a food.  What I’m saying is, don’t eat talcum powder.

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That fracking hurts!

Ohio has become the new Texas with the oil and gas drilling boom consuming much of eastern Ohio.  Most of the media attention around fracking has focused on the environmental impacts – flammable tap water, earthquakes in Ohio, or toxic drinking water, to name a few.  Nasty stuff, to be sure.

fracking

But the physical dangers to people in the area of the wells, workers and others, is also a big fracking problem.  I saw this article today about a worker at a well in Noble County, Ohio who died after an explosion.  I suspect we will start to see more and more unfortunate, but preventable, injuries in the fracking industry in the coming months and years.

What does this mean to you:

Though the energy companies promise jobs and increased economic opportunities to the communities they invade, the costs – in terms of both environmental and human loss – continue to mount.

What did you expect?

Its football season again.  Finally.  But with the season comes the ongoing discussion about concussions, especially repeated ones, and what is and is not an acceptable level of carnage that players endure for our amusement.  The NFL recently settled a lawsuit by former players regarding concussions.  And now comes word that a suit has been filed in California against FIFA attempting to alter rules to curb concussions too.

Brain Trauma

What does this mean to you:

Does everyone know that slamming your head into a 300 lb. hunk of linebacker is probably not good?  Sure.  But if the organizing league had information that the problem is much worse than reported, and refused to take action to fix the problem, all in order to make a profit at expense of the players’ health, that is a problem too.

What kind of action do you have?

Not all cases involving hundreds or thousands of plaintiffs are class actions.  Class cases make the most sense where the wrongful conduct applies the same to everyone affected.  Think of a corporation that misrepresents its financial condition.  All shareholders suffer the exact same loss in share value.

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But what about when the wrongful conduct affects lots of people, but each in their own individual way?  Those cases are called mutli-district litigation, or MDL for short.  MDL’s are common with defective medical devices, where the defect is the same in every case, but the way it affects each person is unique to their circumstances.

The defective Stryker hip implants is an example of a current MDL.  For every implant, the metal in the hip joint begins to fret, or corrode, causing pain and swelling in the hip joint.  Some affected patients may have to have a revision surgery, some won’t, while some may require multiple surgeries.

What does this mean to you:

Class actions get a bad name, perhaps not without merit, for automatically including people without their knowledge.  MDL’s on the other hand, require the plaintiff to actively pursue a claim for their harms and losses.

And another thing about that Instagram…

The Facebook world was aghast this week when Instagram changed its Terms and Conditions so it could claim ownership of photos posted there.  What was also changed, but not as well known, was the requirement for mandatory arbitration of any disputes with Instagram.  Thanks to the Pop Tort for pointing out this equally clandestine yet more nefarious change!

shrug

What does this mean to you:

Always read the fine print.  Forced arbitration means you cannot file a lawsuit if they treat you unfairly.  You cannot have a jury of your peers hear your case and decide what is right.  You “agree” to have any disputes decided by an arbitrator, who sees the company in arbitration all the time.  There is usually no appeal from an arbitration decision – you must live with whatever the arbitrator decides.

 

Big Tobacco and Big UV

Aside from causing cancer and making you look brown, it appears tobacco now shares yet another undesirable trait with tanning beds: deceptive marketing techniques.

solarium treatment

An industry trade group has now produced a video for employees of tanning “salons” so they can extoll the virtues of getting more vitamin D through tanning.  Which is, you know, like good for you and stuff.  Recall that medical doctors used to recommend particular brands of cigarettes as well.

What does this mean to you:

Though its often hard to know the difference between a “trade association” and an “industry front group,” remember that the source, motivation, and funding behind a message are often as important as the message itself.

 

Upcoming Trial Skills Seminar

I will be presenting at the CBA and COAJ‘s The Trial Skills Institute on November 9, 2012.  The seminar will once again present a full mock trial from jury selection to verdict.

So THAT’s what it looks like!

This year’s trial is a personal injury/car crash case.  In addition to seeing some of central Ohio’s premiere Plaintiff’s and Defense litigators in action, attendees will also be able to watch and listen to the jury’s deliberations via closed circuit television. This ability to “get inside the heads” of jurors provides unique and invaluable insight into their thinking process for all litigators.

Here is the brochure with all the details – COAJCBA brochure.  You can also register now online.  Hope to see you there.

 

Think inside the (jury) box

 

While not all jury deliberations are watched by hordes of people in underground bunkers with wiretapping equipment and video monitors like those in movie The Runaway Jury, they are serious nonetheless – and meant to be secret.  But in the age of Facebook, Twitter, and other social networking sites, jurors posts or internet research about a case can have dire consequences.

I cannot believe it. An iPhone 4?!?

Judges around the country are concerned.  In one case, a juror’s Tweets may have even let a murder off of death row.  Some states have outlawed the practice.  There are proposals online for jury instructions to help steer jurors in the right direction.

What does this mean to you:

Our civil justice system depends on fair and impartial jurors deciding cases based on the facts presented.  Trial lawyers should keep abreast of these constantly evolving technologies to best represent their clients.

 

The last medical exhibit you will ever need

I am, what the kids call, an Apple fanboy.  There, I said it.  That includes the iPad, which, lets face it, is revolutionizing the practice of law, and indeed, our very reason for existence.

One area where the iPad shines is trial presentation.  Suddenly, even a svelte laptop begins to seem positively brick-like compared to the paper-thin iPad in the courtroom.  And with its touch-screen interface, trial exhibits – particularly medical exhibits, such as Visible Body, make it all the more elegant.

The ability to rotate medical images in 3D and zoom in and out with the effortless flick of your fingers provides more clarity than a static, 2D foam-core board ever could.  And at $30, it may be the best, and the last, medical exhibit you ever buy.

Speaking of buying things, if you are in the market for an iPad, hold your horses for the next few weeks.  iPad 3 is probably right around the corner.

Questions or comments about iPads in trial?  Drop me a line.

Well that’s good to know

Did you know that 10 years after a product is made, it is no longer dangerous in Ohio?  Few!  What a relief!  I feel much safer now.

Is this some miraculous feat of magic that automatically renders products safe – anything from an industrial punch press in a factory to the toaster in your kitchen – after the specified time of 10 years?

On the contrary, it is merely a feat of legal maneuvering.  The General Assembly passed a law a while back called a statute of repose.  Statutes of repose start the clock ticking for when you can bring a case when the product is made, whether or not you even know of the defect yet.  These are different from statutes of limitations, which only start the clock running once you have been injured or at least know that something is wrong.  Because statutes of repose can cut off your right to bring a case before you even know you have a case, the Ohio Supreme Court struck down the law as unconstitutional.

But, suprisingly, when the General Assembly again passed the same law in 2005, this time the Ohio Supreme Court upheld the statute of repose!  This does nothing to make products safer, protect Ohioans, or encourage manufacturers to design safer products.  In fact, statutes of repose create an incentive to only make products safe for the first 10 years.  After that, no matter how dangerous the design and no matter how bad the manufacture was, the manufacturer is not responsible for any harm caused by their product in Ohio.

So much for extended warranties!

What does this mean to you?

Product liability cases often involve lengthy investigation.  The sooner a lawyer can research the product, the more likely the case will yield a successful result.