Richmond Virginia Personal Injury Lawyer - Miscellaneous

"Homes For Our Troops" Prove Altruism is Alive and Well in America

Michael Phelan — Sat, 16 Jan 2010 13:26:24 GMT

Army Staff Sgt. Dwayne Cole was shot in the neck at close range while serving our country in Iraq. The bullet lodged in his spinal column, leaving him a quadraplegic. A fellow patient at Walter Reed Army Medical Center told Sgt. Cole about Homes for Our Troops and the Build Brigade program. Sgt. Cole and his wife applied and Homes for Our Troops accepted the mission of easing the effects of this catastrophic injury by building a specially adapted, barrier-free home for the Coles in Varina, Virginia. The group has built 50 such homes for wounded vets since 2004 and has another 30 under construction.

Tomorrow, Homes for Our Troops will complete the exterior of the four-bedroom, wheelchair accessible home, which, when finished is expected to be valued at $275,000. It will be presented to the Coles at no cost. During a ceremony at the construction site yesterday, Sgt. Cole took the microphone, but was too choked up to speak. Someone in the crowd reportedly shouted, "You've done enough," to which Cole replied, "If I had a chance, I'd do more."

It goes without saying that we civilians owe heroes like Sgt. Cole a tremendous debt of gratitude. It also deserves to be mentioned that we could all learn from Homes for Our Troops by volunteering for a cause for no other reason than to help others. Supporting organizations which turn around and send us business is not altruism, it's marketing. We should continue to support all of our favorite organizations, but also find time to help people like Sgt. Cole for no other reason than he deserves the help. Kudos to the good people involved with Homes for Our Troops (www.HomesForOurTroops.org) and the companies that have donated money and supplies to the organization, including: Dunkin' Donuts and Baskin Robins-Community Foundation which gave $100,000, and local Virginia companies, Pro-Build of Chester, S.B. Cox Inc., Riverside Brick & Supply, Simonton Windows, Marshall Mechanical, Ducts Unlimited, and Ferguson plumbing supply, which donated materials to the Cole project. Thank you too to Katherine Calos, reporter at the Richmond Times-Dispatch, for publicizing this important event.

Originally posted at InjuryBoard by Michael Phelan

Ethical Law Firm Marketing?

Michael Phelan — Mon, 30 Nov 2009 10:51:49 GMT

The endless quest to improve search engine optimization may have landed one Wisconsin personal injury firm in hot water. Wisconsin’s largest personal injury law firm, Habush, Habush & Rottier, is suing another firm, Cannon & Dunphy alleging that Cannon has been hijacking Habush's name in Google searches. The suit claims that Cannon is paying Google and other search engines to direct people who search for Habush to the Cannon website. The suit says consumers could be confused when their search for the Habush law firm turns up a competitor. "Defendants' obtaining and using the keywords 'Habush' and 'Rottier' is an intentional and illegal effort to trade on the hard-earned names, personal reputations and good will" of the plaintiffs, the suit claims.

If these allegations are true, I hope the Habush firm prevails. Aside from the privacy right and consumer law implications, the alleged hijacking seems, in my opinion, to be plain wrong and unethical. I cannot imaging making the decision to try or allowing a SEO marketing company I hired to try to divert consumers searching for a competitor firm to my website. Aside from the obvious appearance of an impropriety, and the concern about false and misleading information, the activity is just wrong. I'm sure most lawyers know this and would never undertake such Rambo marketing tactics.

In fairness to Cannon & Dunphy, its name partner Patrick Dunphy said he thought a marketer made arrangements with search engines, and that his firm never requested that Habush and Rottier keywords bring up his firm in search results. On the other hand, Dunphy does not concede that there is anything wrong with the alleged diversionary tactic. If Dunphy's professed ingorance is true, I believe C &D should have instructed their marketer to stop the practice as soon as they learned about it.

Originally posted at InjuryBoard by Michael Phelan

Are Enemies of 7th Amendment Outraged About This Frivolous Defense?

Michael Phelan — Thu, 15 Oct 2009 10:29:19 GMT

Let's see if the insurance industry-sponsored lobbyists who call themselves tort reformers hold any press conferences or buy any advertisements to criticize the frivolous defense being put forth in the case where the pet chimpanzee ripped the face off of a woman. I'm not going to hold my breath waiting because this frivolous legal maneuver benefits the defendant chimpanzee owner's insurance company. Consequently, I don't expect any outrage from the so-called tort reformers. They only seem to become outraged when trials guaranteed by the Seventh Amendment to the Constitution benefit individual citizens.

In the case of the maraudering chimp, the attorney representing the owner of the beast that mauled and blinded a woman is calling the attack a work-related incident and said her case should be treated like a workers' compensation claim. The strategy, if successful, would bar the victim's claim against the chimp's owner and limit her damages to whatever is recoverable under the applicable state worker's compensation statute, which statutes typically provide for partial payment of lost wages and payment of medical bills. Claims for permanent disfigurement, pain, humiliation, embarassment and loss of enjoyment of life (sypmtoms one would expect in connection with loss of one's face) are typically not covered by worker's compensation.

Here's the genesis of the worker's comp defense. Sandra Herold owned a tow truck business called "Desire Me Motors." Travis the chimp's face was painted on the side of the tow trucks and he apparently appeared at company promotional events. Sandra Herold lives in Stamford, Connecticut where she keeps the 200-pound chimp. One day in February 2009, Ms. Herold could not get Travis to come into the house from the yard, so she asked her friend and employee Charla Nash to help lure him back into the house Stamford. The animal ripped off Nash's hands, nose, lips and eyelids, and she remains hosptialized. Nash was an employee of Herold's tow truck company. When police arrived at the scene, Travis attacked them too. The police were forced to shoot and kill the chimp. Test results showed that the chimp had the anti-anxiety drug Xanax in his system. Does helping her "friend" lure her friend's pet into the house sound like part of Nash's duties as a tow truck company employee? Not in a million years.

Nash's family filed a lawsuit against Herold, saying she was negligent and reckless for lacking the ability to control ''a wild animal with violent propensities.'' But Herold's attorney filed court papers saying that Nash was working in the scope of her employment with Desire Me Motors at the time of the attack. He argues that Travis was an integral part of the business, and that Nash's claims against Herold are barred by the workers' comp statute. I wonder if he'll be arguing that Travis was a statuory co-employee.

Here's the good news. We don't need tort reform or any other sweeping government intervention into the legal system in order to address this or any other case. The system will likely sort this case out. For the most part, we have excellent trial judges and responsible jurors in this country. I predict that this workers' compensation plea will not succeed.

Originally posted at InjuryBoard by Michael Phelan

Tort Reform Means Less Safety(2)

Michael Phelan — Thu, 18 Jun 2009 15:35:16 GMT

The naive among us who believe that limiting our Seventh Amendment right to trial by jury would benefit most citizens probably also supported Newt Gingrich's plan in the 1990's to privatize the Food and Drug Administration (FDA). Then Speaker Gingrich advocated disbanding the FDA and giving the pharmaceutical, medical device, and food industry oversight of their own industries. What a disaster that would have been!

Anyone who believes that products would not be less safe or the environment more toxic without the threat to manufacturers and polluters of lawsuits is similarly naive. One would have to believe that, left to their own devices, these manufacturers and polluters could be trusted to do the right thing, i.e., to fairly balance the risks of harm against the benefits of the product, and to always choose to adopt reasonable safety precautions. A pending case in the United States District Court for the Southern District of Indiana is a typical example of the dishonesty and abuse by manufactureres and polluters that has become far too common in toxic tort and product liability cases. In this case, the plaintiff property owner, 110 West, LLC allged that Red Spot Paint & Varnish Co. Inc.'s manufacturing operations contaminated plaintiff's property with extremely dangerous chemicals, including benzene, a solvent used by the Nazis in the gas chambers. One issue was whether Red Spot and its law firm, Bose, McKinney & Evans, LLC, "lied or misrepresented the truth about Red Spot's use of ...[chlorinated solvents]." Naturally, in discovery, Red Spot was asked to identify all chemicals used in its manufacturing process. Red Spot not only used the chlorinated solvents in its process, but it also possessed reports of soil samples showing that the solvents had contaminated the soil and groundwater.

So, of course, Red Spot and its lawyers turned this information over in discovery, right? No, what Red Spot and its lawyers did was to hide the crucial documents and state in writing, under oath, among other misrepresentations, that "Red Spot's operations have not included the use of ...chlorinated solvents." Fortunately for 100 West, LLC and anyone interested in truth and non-toxic drinking water and soil, the lawyers for 100 West were persistent. They obtained the truth from the EPA, which had documented, including with photos of leaking solvent waste drums, that Red Spot had dumped over 96 gallons of hazardous chemical waste into the environment. The EPA informed the plaintiff's lawyers that Red Spot's lawyers at Bose McKinney had received a copy of the Red Spot EPA file. Upon learning this, the court ordered Red Spot to turn over the file, however, the court later concluded that the Bose McKinney lawyers "'sanitized' the EPA RCRA file by pulling out the most damaging documents."

The federal judge found that Red Spot committed fraud and made misrepresentations to the court. "Red Spot has made a mockery of the discovery process and has subjected the truth to ridicule." The court's lengthy opinion is replete with examples of Red Spot witnesses lying under oath and of Red Spot's lawyers being complicit in those lies, having possessed enough documentary evidence to know the testimony was untruthful. The court issued the most severe of sanctions under Fed. R. Civil P. 37 and found Red Spot liable for contaminating plaintiff's property and responsible for remediating the contamination. The court also ordered Red Spot and Bose McKinney to split the cost of all of plaintiff's legal fees for the three years of discovery that preceeded the sanctions order.

Red Spot was not going to voluntarily clean up its toxic mess. And the EPA obviously had no success in forcing Red Spot to do so. Only through the litigation process was 100 West LLC able to receive justice, and it took years of litigation caused by Red Spot's abusive discovery tactics to get justice. The tort reformers want to make it easier for defendants like Red Spot and harder for plaintiffs like 100 West. Does that seem right?

Originally posted at InjuryBoard by Michael Phelan

Sexual Assault of Child to be Tried in State Court

Harris Butler — Fri, 24 Apr 2009 10:00:00 GMT

In an April 22, 2009 opinion, U.S. District Judge Henry E. Hudson refused to allow companies who were alleged to have negligently hired or retained a previously-convicted sex offender who assaulted a child to remove the case from state court to federal court. Defendants Dish Network Service, LLC, Echostar Satellite, LLC, Rocking “R” International, Inc. and Donald Waters were sued in Goochland, Virginia Circuit Court in a civil suit brought by parents of a child who they assert was sexually assaulted by the maintenance worker performing work on a Dish Network home system. The worker, who was convicted of felony sexual assault of a minor in the criminal case, is presently serving a 20 plus year sentence.

The Defendants argued that the worker was a domicile of Maryland and that complete diversity of citizenship between the parties existed, which would have permitted removal to federal court. The Court, however, reviewed the evidence and found that the Defendants failed to meet their burden to establish Maryland domicile for the worker. The Plaintiffs presented evidence that the worker had lived and worked in Virginia prior to his arrest and conviction on the sexual assault charge, and that the Defendants’ position (and worker’s testimony) were not credible. As the Court writes, “the exhibits submitted by Plaintiffs demonstrate a substantial and continuing connection between Waters and the Richmond, Virginia area. In contrast to the evidence submitted by Defendants, which shows only a minimal connection between Waters and Maryland, Plaintiffs’ exhibits portray Waters as an individual whose personal and professional affairs were centered in and around Richmond, Virginia prior to his incarceration in 2005. Viewed against Plaintiff’s substantial evidence to the contrary, Waters contention that he subjectively considered Maryland to be his domicile is simply not credible. Thus, even if Waters was domiciled in Maryland at some point, Plaintiffs’ evidence suggests that Waters had switched his domicile to Virginia by early 2005.” Finding no diversity jurisdiction to support removal to federal court, Judge Hudson remanded the case to the Circuit Court for Goochland County.

Harris Butler, Mike Phelan and Rebecca Royals of the law firm Butler, Williams & Skilling, P.C. represent the Plaintiffs in their claims against Mr. Waters and the companies who placed him in their clients’ home.

Originally posted at InjuryBoard by Harris Butler

Federal Court Determines Pharmaceutical Sales Representatives Are Not "Outside Salesmen"

Zev Antell — Thu, 02 Apr 2009 18:33:32 GMT

On March 30^th, a Connecticut Federal court found that the FLSA’s “Outside Salesman” exemption did not apply to Pharmaceutical Sales Representatives. In issuing its ruling the court resisted the temptation to concede to legal fictions created by other courts in order to justify withholding overtime compensation. Without getting too technical, at the core of the ruling is the fact that Pharmaceutical Sale Representatives do not actually sell anything. In fact, federal and state law precludes them from making the very sales that would make them exempt. Rather, their role is to inform health care providers about the benefits of a given drug and to attempt to convince those professionals to write prescriptions. In order to be exempt under the FLSA as an outside salesman, you first have to actually sell something. This decision means that thousands of Pharmaceutical Sales Representatives (sometimes referred to as “Drug Reps” or “Drug Representatives”) may be entitled to countless hours of previously unpaid overtime compensation. Overtime compensation is calculated as one and a half times your regular rate of pay for those hours beyond forty worked in a single week. Typically, Drug Reps make a good living, but the work requires long hours, often well beyond forty in a single week. Thus, it is not a stretch to think individual Drug Reps might be able to recover tens of thousands dollars for unpaid overtime accrued over just a couple of years.

For those readers interested in reading the court’s 3/30/09 opinion in Kuzinski v. Schering Corp., it is currently available at 2009 U.S. Dist. LEXIS 25702.

Originally posted at InjuryBoard by Zev Antell

Vicki Iseman's $27 Million Defamation Case Settles for Zero Dollars and No Retraction

Michael Phelan — Mon, 23 Feb 2009 16:03:42 GMT

Vicki Iseman, the lobbyist whom the New York Times reported was suspected by John McCain's staff in 1999 of having a romantic affair with Senatory McCain, sued the New York Times for defamation. The Complaint was filed December 30, 2008 in the United States District Court for the Eastern District of Virginia, Richmond Division, and can be viewd by clicking "defamation" in the previous sentence. Iseman sued The New York Times Company, its executive editor, an editor, and several reporters for Twenty Seven Million Dollars, and her Complaint was accompanied by much publicity. According to a New York Times article last week, the lawsuit was settled without any monetary payment to Iseman or a retraction of the allegedly defamatory article by the New York Times. Click "defamatory" in the preceding sentence to read the NYT's account of the settlement. So what did Ms. Iseman get for settling her $27 million complaint? The Times agreed to publish a joint statement, a Note to Readers, and to let Ms. Iseman's lawyers publish their views on the NYT's website. Click to read the statement from Iseman's lawyers. The statement quotes Shakespeare but does not cite any monetary consideration for the settlement. That's because there was none.

The Times continues to maintain that the original article was an accurate examination of the record of Mr. McCain, then the presumptive Republican presidential nominee, as an ethics reformer who was at times blind to potential conflicts of interest; the section of the article referring to Ms. Iseman focused on the fact that some top McCain advisers had confronted the senator with their concerns that the relationship had become romantic. To resolve the lawsuit, Ms. Iseman accepted the NYT's explanation, which it agreed to publish in a Note to Readers. The Times maintains that its article did not state, nor did it intend to conclude, that the parties engaged in an affair or any type of unethical relationship. The point of the original article, according to The Times, was that Mr. McCain had a cavalier attitude toward protecting his reputation as an ethics reformer. In its Response to the statement from Iseman's lawyers, the Times aggessively states that the case "settled without money changing hands, and without The Times backing away from the story."

Originally posted at InjuryBoard by Michael Phelan

FDA Rank and File Do Not Support Preemption

Michael Phelan — Thu, 30 Oct 2008 14:13:38 GMT

Yesterday the U.S. House Committee on Oversight and Government Reform issued a report saying FDA career staff objected to a change in preemption rules, even saying the central factual justifications for the agency’s new positions were false. The report highlights internal FDA documents which show high-ranking career officials repeatedly warning about the dangers of not allowing drug companies to add additional warnings to their labels without FDA approval. Prior to this the FDA had asserted through a rule on drug and device labeling that manufacturers should not be held accountable for failing to update their label with additional risks, if the original label was approved by the FDA.

The report cites Dr. John Jenkins, the highest official in FDA’s new drug review process, writing:

" [M]uch of the argument for why we are proposing to invoke preemption seems to be based on the false assumption that the FDA approved labeling is fully accurate and up-to-date in a real time basis. We know that such an assumption is false.”

Prior to the rule being issued one FDA career official asserted that the rule “is not as it purports to be, consistent with the agency’s role in protecting the public health…”

A copy of the report can be found at http://oversight.house.gov/documents/20081029102934.pdf . My friend, Brooks Schuelke, has also written an important blog on this topic and has written a series of blogs on the White House's attempt to ram complete preemption down the throats of the public and the states.

The Bush Administration continues to push for federal agencies to support the concept of preemption, even in the face of dissent from agency insiders who know best how the agency functions. Contrary to the view of the White House and the FDA general counsel (an administration stooge), the drug regulators said pharmaceutical manufacturers could not be trusted to warn patients of new risks. The concept of preemption, as it is being pushed by the administration, violates principles of states' rights and citizens' rights to trial by jury as set forth in the Seventh Amendment.

Originally posted at InjuryBoard by Michael Phelan

Stop Businesses From Sending Child Molestors Into Your Home

Michael Phelan — Fri, 24 Oct 2008 21:48:21 GMT

The Sex Offense Registry can be accessed for free in a matter of minutes. Requiring a prospective employee to sign a release authorizing the prospective employer to access his criminal record takes no time at all. Following through and actually requesting the criminal record simply requires mailing the form, typically with a check for a few dollars. If a certain Fortune 500 company had taken any of these simple steps when hiring home installation technicians, a little girl would not have been molested in her home by a registered sex offender who had been sent to the home by his employer to maintain a product sold to the homeowners. That's right, a simple background check would have revealed that the guy had already done prison time for a sex crime involving a minor. Before allowing some stranger who arrives at your home in a white van into your home, make sure the vendor has done a background check on this person. Get the vendor to commit that this simple background check has been done. Another thing we can all do is lobby our legislators to pass a bill requiring background checks on all service people whose primary job is to enter consumers' homes to install, maintain, or repair their employer's products. After learning the facts of these egregious case, I won't even allow my teen age children to have pizza delivered to the house unless my wife or I am home. The pizza delivery business is also notorious for not requiring background checks. Home much would it cost for these businesses to take that extra step to protect our kids?

The facts of the above-referenced sexual assault of a four year old girl are set forth in a public opinion from the United States District Court of the Eastern District of Virginia, Richmond Division.

Originally posted at InjuryBoard by Michael Phelan

Predatory Lobbying and Legislating Caused the Economic Crisis

Michael Phelan — Wed, 01 Oct 2008 11:22:49 GMT

I am a big fan of the philosophy of objectivism, which promotes rational self-interest, individual liberty,and the capitalist system. Followers of this philosophy know that one of the biggest enemies of our free-market capitalist system is government sponsored cronyism. In a free market, both the borrower and lender would suffer from the decision to make a bad loan. In a system dominated by special interests with powerful lobbyists and an activist Bush Administration which has raised cronyism to a new level, the powerful go unpunished and the tax payers, small businesses, shareholders, and retirement plan participants get screwed.

Sadly, the U.S. Chamber, which has become basically a powerful lobbying firm, has played a major role in lobbying to protect corporate wrong doers from the punishment they should have received in the free market. A couple of the U.S. Chamber's major lobbying clients have been Enron and AIG. At the same time the Chamber is fighting to protect the cheaters, it is also fighting to take from individual Americans their Seventh Amendment right to trial by jury. The right of a shareholder to hold accountable his or her company in a court of law may be the best free market check on the abuses that got us into this mess. The Chamber opposes the individual's constitutional right to trial by jury. That is the basis of its tort reform agenda. If the Chamber had its way, only businesses would have access to our courtrooms and the rest of us would be forced into binding arbitration by a panel of arbiters who are friendly to Wall Street.

For more facts on the Chambers role in creating this mess, see AAJ's brief, "Behind the Bailout: How the U.S. Chamber Created the 2008 Financial Crisis." This brief tells one side of the story only. The federal government and the borrowers deserve their share of the blame. The Bush Administration promoted the concept of home ownership at all costs, and many borrowers were stupid to borrow more than they could afford to pay. My point is that only the borrowers, shareholders, and taxpayers are being saddled with the bailout. The government is pointing fingers and, with the blessing of the Chamber, the CEO's who made some of these disasterous decisions are walking away with golden parachutes. I'll wager that buried deep in the fine print of whatever bailout bill ultimately passes will be a provision holding the corporate bad guys immune from civil liability. If the Chamber was truly pro-capitalism, why is it so in favor of the Administration's attempt to socialize Wall Street? Perhaps because its lobbying clients need it to be.

Originally posted at InjuryBoard by Michael Phelan