Knowing when to leave is half the battle

We all know the type: the person at the party who cannot bring themselves to leave. Whether they just like the sound of their own voice or fear of facing what is at home is just too much, knowing when your time is up is critical.  (Watch this segue.)  And the same goes for IVC filters.

Oh geez.  Its time to go.

Oh geez. Its time to go.

After surgery, the risk of blood clots forming goes up.  If one of those clots makes it into the lungs, it can be bad.  Like, pulmonary embolism-bad.  So, surgeons can place a metal cage or filter in a vein, called the inferior vena cava, to trap blood clots to prevent them from reaching the lungs.  

The problem is that, if these IVC filters are left in too long, they tend to not stay in place. That is, they can move or tilt, causing perforation or tearing of the vein.

These filters have several metal spines, and in a pinch, can also be used to catch bass and stripers.  (This statement has not been evaluated by the FDA.)  What has been stated by the FDA is that leaving an IVC filter in too long can be dangerous.

What does this mean to you:

It can sometimes be as important to know when to stop using a particular medical device as it can be to know when to start.

The hidden cost of tort deform

General Motors knew that its ignition switches were faulty but allowed people to continue to drive Chevy Cobalts and other cars for years.  To date, 49 of those people have died in crashed related to the defective switches, and many more suffered horrific injuries.


However, many families of these innocent victims have not been able to obtain justice.  Many states, including Ohio, place a limit on the amount of compensation injury victims and their families can get under the guise of “tort reform.”  As pointed out in this recent New York Times piece, it simply becomes too expensive to bring a case, in light of what the law allows to be recovered.  Said another way, by the time experts are hired to prove the case, the value of the injuries and suffering is not enough to obtain a successful result.

In fact, Ohio even takes the added step of cutting off the right to bring a case after the product is 10 years old.  This “statute of repose” applies even if it is defective and dangerous and even if the manufacturer knew of the problem.

What does this mean to you:  

No one would dispute that frivoulous lawsuits have no place in our legal system. The dispute is, what constitutes “frivolous” and who gets to decide?  Politicians or a jury of your peers?

Leap of faith

Commercials for insurance companies make you feel all warm and fuzzy, don’t they?  If you believe these ads, some insurance companies are like your neighbor (but only the good ones), some are on your side, and others help old ladies cross the street.  What’s your policy?

We got another one. Get the stamp out!

Despite what these ads would have us believe, insurance companies sometimes actually act in downright un-neighborly ways.  Whether it be car insurance claim, a home owners claim, or any other kind of claim, insurance companies exist for one reason and one reason only – to make money.  (If they do anything other than try to maximize profit, they will be sued.)  To expect them to “do the right thing” is, unfortunately, not reality.

Your own insurance company has an obligation to treat you fairly, even if it means, believe it or not, they have to pay.  If your own insurance company wrongly denies your claim, or drags out the claims process, they may be practicing bad faith insurance, sometimes called “first party” bad faith.  One insurance company defense law firm was even nice enough to post some examples of what can be considered bad faith insurance.

What does this mean to you:

Insurance companies spend a lot of money on ad campaigns, mottos, and spokespeople to convince people they treat you fairly.  We all know, that doesn’t always happen.  Keep in mind that if your own insurance company gives you the run around, they may be liable.

It’s all about the children

One of my favorite SNL sketches from back in the day was Dan Aykroyd as Irwin Mainway on the show “Consumer Probe.”  Mr. Mainway made toys for kids such as Johnny Switchblade, Bag O’ Glass (part of the very successful Bag O’ line), and Teddy Chainsaw Bear.  Classic!  The comedy lies in the fact that the danger in these kids products is patently obvious to everyone.

Is he playing with Mr. Skingrafter?

But plenty of products for children are recalled for hidden problems and latent defects each year.  Everything from strollers to cribs to toys with magnets in them.  Time Magazine just did a story on these issues.

What does this mean to you:

Though it is a pain, always fill out and return the warranty cards that come with products – especially children’s products – so you know when a recall happens.  A recall can be critical evidence in proving a claim.  Without a recall notice, you are relying on the goodness of Mr. Mainway’s heart to give you notice.

Don’t cry over spilled coffee

Spill coffee on yourself and make a million dollars.  That’s what most folks believe happened in one of the most infamous product liability cases of all time – “the McDonald’s coffee case.”  Everyone knows coffee is hot, right?  So how can it be that McDonald’s was sued again in March of this year – not once but twice – for burning people with hot coffee?

Make mine a double-decafinated half-caf, skinny, venti, no whip with a shot of decaf.

The answer:  McDonalds continues to serve its coffee at dangerously hot temperatures.  As recounted is a recent documentary on the original case, the real facts (not those reported in the media or regurgitated on talk radio) are as follows:

– The injured person was 79 year old Stella Leibeck.

– She had never filed a lawsuit before in her life

– She was the passenger, not the driver.

–  They were parked, not driving.

– McDonalds served its coffee 20 degrees hotter than everyone else.

– McDonalds had burned over 700 people before, but refused to lower the temperature.

– Ms. Leibeck suffered third degree skin burns in her crotch, which required skin grafts.

– When she asked McDonalds to pay her medical bills of $20,000, they offered her $800.

– The jury awarded $2.7 million in punitive damages.  That’s the amount of profit McDonalds makes selling just coffee every two days.

– On appeal, the jury’s award was reduced, and the parties settled for a confidential amount that we will never know.

What does this mean to you:

There is often more to so-called “frivolous cases” than is first reported.  Cases like this, not only make up to the injured person for what they have lost, but discourages dangerous conduct in the future.

Does everyone know that coffee is hot?  Sure.  Does everyone know coffee is burn-your-skin-off-in-three-seconds hot?  Maybe not.

They are everywhere

Interesting post on defective truck brakes from friend of FSBD, The Moore Law Firm, on their blog.

What does this mean to you?

The cause of a truck accident might not always be the truck driver’s inattention.  Any legal case is a search for the truth, which requires investigation by counsel in to all potential causes of the wreck.

But let’s be honest, its usually the truck driver’s inattention.


Can we at least send them to their room with no dessert?

Every parent knows that, from time to time, a little punishment can be warranted.  We generally punish for the really bad stuff, and even then, the punishment has to “fit the crime.”  In really bad cases, juries can punish bad behavior too by awarding punitive damages. Punitive damages are hard to actually prove, and as a result, are rarely awarded.

The type of behavior punitive damages discourage is the worst of the worst – intentional, dangerous behavior.  The classic example is the infamous Ford Pinto, often recognized as one of the worst cars of all time.  Ford engineers knew its gas tank design was likely catch fire in a crash and knew how to fix it for only $11 per car, but decided it would be cheaper to let people burn and pay the lawsuits.

Why, then, did the Ohio Supreme Court recently make it even harder to punish wrongdoers when they deserve it?  And why are lawmakers in Arizona seeking to exempt manufacturers of dangerous products from being punished when their conduct warrants it?  How will this create jobs or make products safer?  Hint: It’s not a trick question.

What does this mean to you?

Know your legislators and judges.  Let them know that everyone, including corporations, should be accountable for their actions.

You know you want to

Is work ever “voluntary”? Setting aside questions of the neuroscience behind our actions, it is an interesting question to cogitate on.  Once at work, we essentially must do what our employer asks, or else be fired.  True, we certainly choose to have a job and go to work each day, but once there, can our actions be termed truly voluntary?  Especially in this economy?

Putting a finer point on it, should an employee who uses a defective product at work (a press missing a safety guard, etc.) be allowed to make a claim against the manufacturer of the defective product?

He really, really wants to run that press all day.

I’m defective? No, you’re defective!

We often hear of the concept of a “defective product” being something that physically breaks or malfunctions.  And, as a parent who just survived another Christmas filled with plenty of plastic horse pucky, I could certainly provide several recent examples of just this type of defect in many different products.

But in Ohio, as in many states, any product can be defective in one or multiple ways.  As an example, think of a riding lawn mower that rolls over and injures the driver.  It may be that something happened while this particular mower was being manufactured at the factory causing it roll.  This type of manufacturing defect is usually confined to one part coming off the line wrong.  This same mower may also be defectively designed.  That is, the way all the mowers were designed and created by the company creates a danger of rollover.  What’s more, if the company should have known their mower would rollover, the product can also be defective if there is not an adequate warning about the risks and dangers of their mower.

Let’s hope Santa invests in some good R&D between now and December.

Can you spot all the defects in this photo?