July 2009 Archives

July 31, 2009

"Tweeting" To a Defamation Action

I first heard about this lawsuit on NPR and thought that it was fascinating.  In just a few short words posted on Twitter, "You should just come anyway...Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it’s OK," a tenant of said Horizon Realty has found herself defending a defamation action.

The plaintiff corporation is stating that the statement was available to the public to be read by anyone in the world and damaged the corporations reputation.  Is this a textbook defamation action? 

  • Was the woman's "tweet" truly a publishing?  Or is Twitter more like a chat between friends in which one happens to be airing out grievances?

  • How many people truly read or were aware of the tweet (at least before the lawsuit)?

  • And was the company truly damaged? 

All interesting questions that could have serious implications on the way we use the internet and social websites like twitter.  As discussed in my post, The State of Illegally Downloaded Music, the internet is creating serious problems for people who are using websites the same way that millions of others are.  Seemingly innocent behavior with no malicious intent on the internet, might actually lead to both civil and criminal penalty.
July 31, 2009

The State of Illegally Downloaded Music

Only a few short months after Jammie Thomas-Rasset was ordered to pay $1.92 million in damages to the Recording Industry Association of America (RIAA) for illegally downloading and sharing 24 songs, it looks as if a second defendant is about to go down in flames. 

Joel Tenenbaum, is a 25 year old BU student, who along with Jammie Thomas-Rasset was among the 18,000 recipients of letters from the RIAA demanding payment for illegal downloads.  Like many, Mr. Tenenbaum decided to take the matter to trial and had well known lawyer Charlie Nesson at his side.  On the stand, however, Mr. Tenenbaum admitted responsibility for illegally downloading songs on Kazaa.  When asked "Are you now admitting liability for downloading and distributing all 30 songs," Tenenbaum simply replied, "yes."

Clearly Tenenbaum and Thomas-Rassetare people without malicious intent who are likely law abiding people.  Nevertheless, they have infringed on another's copyright and intellectual property and have been brought to court to answer for themselves.  The problem being, that there truly is no defense for such actions.  One can not deny the illegality of it.  A defendant can only ask that the damages be limited.  Unfortunately, Ms. Thomas-Rasset was ordered to pay $80,000 per song.  If the jury in this case finds similarly, Mr. Tenenbaum could be looking at a 2.4 million dollar bill.
July 27, 2009

Does Neurontin Increase Risk of Suicide?

That is the question that a Boston Federal Court will decide as trial is set to begin.  Superstar plaintiff attorney Mark Lanier is bringing the suit alleging that the Pfizer anti-epilepsy drug increases a patient's risk of suicide.  This case, the first of some 1200 prepared to go to suit in the coming years is predicted to mirror the Vioxx lawsuits.

Attorney Lanier has admitted that he is starting with a tough case to test the waters.  He represents the family of Susan Bulger, a thirty-nine year old woman who took the drug before hanging herself in 2004.  The case is made difficult by the fact that Ms. Bulger attempted suicide no less than three times previously. 

A win for the plaintiffs in this early case would be devestating to Pfizer with over a thousand lawsuits pending.
July 22, 2009

Slip and Fall: A Primer

I receive a lot of questions asking whether one has a valid case for slip and fall.  Often there is a fall on private property causing injury, but while these elements are essential, they are not enough.  A landowner is not always responsible for a flaw in the property that leads to a fall.  Occasionally weather, or another's mistake can cause a temporary flaw that the landowner may or may not be responsible for.

So, when might a landowner be responsible for a fall.  Here are the most common scenarios for a landowner to be legally responsible:

  • The owner of the property or his or her employee, caused the flaw in the surface by either damaging it or spilling something onto it, or otherwise causing something to be underfoot;

  • The owner of the property or his or her employee knew of the flaw on the property and did nothing to correct it;

  • The owner of the property or his or her employee should have known of the flaw in the property because a reasonable landowner would occasionally inspect his or her property and repair any known flaws.

In the first two scenarios, the landowner knows of the flaw either because he or she caused it or because he was told directly.  In the third scenario, often the most litigated, we have to ask if the "reasonable" landowner should have known of the flaw and repaired it.  Considerations include:

  • What is the nature of the object - size, shape, consistency;

  • Does the landlord have a routine inspection schedule? Is it sufficient?

  • How long has the object or flaw been present?  Would a routine inspection have identified it?;

  • Could a simple barrier or warning have prevented injury?;

  • Was there a legitimate reason for the object's presence?

So you see, a seemingly simple slip and fall can become a very fact intensive matter.  Report all falls immediately to someone of authority so that the condition is documented.  If the flaw is located in your apartment building, immediately notify the landlord or owner so that their knowledge is established.

This primer is an introduction only and does not cover all potential scenarios.  As you can see, a slip and fall can be very fact intensive and you need to speak with an attorney to determine your rights.  If you have been injured in a slip and fall accident, contact our office for a free initial consultation.
July 21, 2009

N.Y. Times has Interesting Article Suggesting Cover-up of the True Danger of Driving with Cellphones

The article, "Driven to Distraction", reports that a federal study investigating the true danger of cellphone use in automobiles, was shelved to avoid a confrontation with Congress.  The National Highway Traffic Safety Administration, given the task of research was hesitant to become a lobby group, and chose not to release the findings.  After a freedom of Information Act filing, the information has become public.

According to their findings, "motorists talking on a phone are four times as likely to crash as other drivers, and are as likely to cause an accident as someone with a .08 blood alcohol content."  In total, the highway safety researchers estimate that cell phone use caused 955 fatalities and 240,000 accidents in 2002.

The use of cell phones, either to talk or to text, greatly increase the risk of an accident and should be discussed with your attorney when determining the liability for an auto accident.
July 17, 2009

Kent Hospital on Probation After 2 Wrong Site Incidents

It's only been a few short months since a major Rhode Island Hospital was in the news because of wrong-site procedures, but today the Providence Journal is reporting that the interventional radiology department at Kent Hospital has been placed on 6 months probation by the Rhode Island Department of Health. 

Kent County reported to the Dept. of Health that a patient had a long term IV catheter inserted into the wrong arm and reported a second incident while the first was still being investigated!   The second incident concerned a patient who had X-ray dye injected into the wrong hip. 

The detailed report from the Department of Health is located here.
July 16, 2009

Sheldon Whitehouse Champions Civil Justice

Our own Senator was quoted in a recent op-ed piece in the Wall Street Journal written by Philip K.  Howard.   In the piece entitled, "Health Reform Requires Lawsuit Reform," Mr. Howard advocates for the creation of a special health court akin to Workers Compensation Courts to replace the jury in medical malpractice trials.

As a plaintiff attorney and member of the American Association for Justice, my opinion on the matter is obvious.  Not only is the jury system necessary to our system of justice, but numerous reports have shown that changes to the malpractice system can not and will not save our battered health care system.  In 2008, the Congressional Budget Office reported that the "CBO has not found consistent evidence that changes in the medical malpractice environment would have a measurable impact on health care spending." 

The scare tactics of tort-reformers overstates the situation greatly suggesting that there are countless frivilous suits filed daily to shake down doctors.  Anyone who has approached an attorney with a potential malpractice claim knows that quite the opposite is true.  Unless the damages are staggering and the negligence somewhat clear, no attorney in the world is going to attempt to file a lawsuit because of the prohibitive cost.

Tort reform costs us all our constitutional right to civil compensation for the wrongs suffered and this cost far outweighs the meager benefit to our health care system.  I want to applaude our Senator for protecting our rights for as he states himself, the jury trial "our protection against tyranny of the majority."
July 13, 2009

Expunge Your Criminal Record

Many people who made a one time mistake in their lives are unaware that they can have their criminal record permanently deleted - let me help you with this process.

Rhode Island law allows one to expunge and permanently erase their criminal record after five (5) years for a misdemeanor and ten (10) years for a felony so long as this is the only incident on your record.  If you believe that you qualify and do not want to lose another job opportunity because of what appears on your record, please contact my office so we can begin the process of clearing your record immediately.
July 6, 2009

Musicians - Consider a Band Partnership Agreement

It is easy for bands struggling to break free from the garage and make it big to think that legal issues surrounding music only occur to big national acts.  While there may be some truth to this, the music you are writing right now may one day be an income generating hit.

Therefore, it is best for bands even in the early stages to have a partnership agreement that can help identify:

  • ownership of musical rights;

  • percentages of revenue;

  • ownership of equipment;

  • how responsibilities are shared;

  • ownership of the band name and/or logo;

  • distribution of band assets after termination, and;

  • how the band is affected when members join or leave the band.

These are but a few of the essential questions that should be put to writing in a band partnership agreement as soon as your group begins to make money and perform live shows.  I will be happy to help you with this process which can give your band peace of mind so that you can concentrate on making music.
July 2, 2009

Landmark Ruling Concerning Nursing Home Neglect

While it is out of our jurisdiction it is worth noting that the 3rd Circuit has recognized a cause of action for civil rights violations at nursing homes resulting from inadequate and abusive treatment.  The case is Grammer v. John J. Kane Regional Centers.

The Court held that the Federal Nursing Home Reform Amendments (FNHRA) "is explicitly and unambiguously rights-creating," and that its provisions make clear that "nursing homes must provide a basic level of service and care for residents and medicaid patients."

Under the law, nursing homes:
are required to care for residents in a manner promoting quality of life, provide services and activities to maintain the highest practicable physical, mental and psychosocial well-being of residents, and conduct comprehensive assessments of their functional abilities...

According to the holding the FNHRA also:
specifically guarantees nursing home residents the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for the purposes of discipline or convenience and not required to treat their medical symptoms.

Recent years have seen an increase in nursing home abuse and neglect cases because families have finally begun to speak up for their loved ones who are often unable to fight for themselves.  This is an important decision and gives federal support to this area of tort law.

If you believe a family member has been subjected to nursing home abuse or neglect, please contact my office for a free consultation.