August 2009 Archives

August 31, 2009

Another Fatal Motorcycle Accident

Sunday, a Westerly man was killed while riding his motorcyle marking the 14th fatality this year in Rhode Island involving motorcycles.  I do not know the details of Sunday's accident, but it is clear that 14 fatalities in this small State is far too many. 

Unfortunately, around 3,000 cyclists are killed each year across the country.  Both drivers of cars and motorcyclists need to help bring down this staggering number.  Drivers of cars are unaccustomed to looking for motorcycles or bicyclists.  Often while looking for other vehicles to avoid, a driver's eye can miss a motorcyle or bike.   Unfortunately, a relatively minor car accident can result in a fatal motorcycle accident. 

I am an avid bicyclist myself and know the unique hazards that motorcycle and bicycle riders face.  It is always on us to drive defensively when the rest of the world is innattentive.  If you have been injured while riding a motorcycle, it is important to call an attorney who understands this difference and has experience representing bikers.
August 27, 2009

An Argument Supporting Liability for Future Harm

I first came across this law review article in the Law Professors blog which included an abstract and I decided I had to read the article.   Professors Ariel Porat and Alex Stein have written a compelling argument supporting liability for future harm in tort cases.

Historically, a plaintiff could not be compensated for the "chance" that illness might develop at a later time.  A small example of this is a plaintiff who suffers a concussion in an auto accident.   Obviously, the plaintiff will be compensated for the head injury, but it is well documented that concussions can occur more easily, and with greater severity, after the first one is suffered.  The plaintiff, however, will not be compensated for the increased likelihood that he or she will suffer concussions in the future.

Professors Porat and Stein begin their argument with a relatively recent Supreme Court case, Norfolk & Western Railway Company v. AyresThe plaintiff in that suit contracted asbestosis from exposure to asbestos along the railway.  The plaintiff suffered emotional distress because he was aware that 1 in 10 people suffering from asbestosis eventually develop mesothelioma, a fatal form of cancer.  Even though the plaintiff had not yet developed mesothelioma, the United States Supreme Court in a 5-4 decision, held that the plaintiff was allowed to recover if the distress was proven to be "genuine and serious."

This case, while a step forward, is not far enough because the plaintiff had already contracted asbestosis, a very serious condition.  Common law courts have often allowed recovery for emotional distress stemming from an illness or injury, in this case, asbestosis. 

This article takes the next step and argues for liability for future harm without the necessity of a pre-existing condition.  The authors propose a probability approach where the plaintiff should be compensated for the illness he or she has been exposed to multiplied by the probability of such illness manifesting.

Before I do any further disservice to the authors argument, I will stop and suggest that you read their article in the full.  I was able to download it via SSRN here.
August 24, 2009

Many Providence Day Cares Putting Children At Risk

The City of Providence has almost 500 day care centers, many of which are home day cares located in poor sections of the City.  While it is quite easy to obtain a license, a recent article in the Projo, shows that being licensed is not enough. 

Many day cares were cited or suspended due to issues such as improper ventilation that could lead to carbon monoxide build up, fire hazards, improper electrical wiring, etc.  One house was infested with flies and sickly animals. 

The economic reality is that proper day care is incredibly expensive and home day care offers a cost-effective alternative to a low income family.  Ensuring that the facility is properly licensed and insured is not enough, however.  Parents must carefully examine the facilities where the kids will be spending their time to ensure that they are safe and secure.
August 21, 2009

"Skanks in NYC" Blogger Identified

Any regular reader of this blog is aware that I am fascinated watching the law adapt and adjust to the ever increasing use of the internet and social medial as a form of sharing ideas, communication, and material... legally and illegally.

"Skanks in NYC" was a google hosted blog that existed for the sole purpose of smearing and defaming a model named Liskula Cohen.  A defamation action was filed and the plaintiff convinced the judge to force google to disclose the bloggers information so that he or she would appear in the defamation action.  The blogger was identified as Rosemary Port who used the blog to seek revenge against Cohen for the most common and cliched reasons, a man.  Apparently Ms. Port thought that Cohen had spoken poorly of her to an unnamed gentleman.

Once identified, Cohen has chosen to drop the suit so long as the website is taken down.   This is an important decision that rides the line between privacy, free speech, and civil freedoms.  Ms. Port is shocked that her privacy was disturbed and believes the Court decided wrongly.    Her actions, however, made the decision easier for the Justice.  The blog (which I admittedly have never seen) seems to have no purpose other than to abuse and smear the reputation of Ms. Cohen.   Ms. Port does not qualify as a legitimate reporter, nor is she sharing news with the public.  Her actions cross the line of free speech and she did not deserve anonymity.

I expect to see a number of these cases come up in the future.  It is SO EASY today to besmear and defame a person.  On twitter, myspace, facebook, or Ebay (as in a case I handled in which a buyer was so dissatisfied that she made it her life's goal to destroy my client's business and reputation.)  We may see a flood of defamation lawsuits stemming from social media. 

Long gone is the day when we gathered around the water cooler making snide comments.
August 18, 2009

Split Massachusetts SJC Suggests GPS Unconstitutional for Some Sex Offenders

Massachusetts enacted a law in 2006 that allows for GPS units to be placed on sex offenders on probation.  Today, in Commonwealth v. Cory, the SJC, split 4-3 held that the 2006 law could not be enforced retroactively for offenders convicted before 2006.  The reasoning of the court, namely, that it "burdens liberty" because it is a permanent intrusive attachment with continuous surveillance.

Sex offenders have a well documented high rate of recidivism and it is for this reason that the 2006 law passed despite the obvious Constitutional dilemma it proposed.  As the SJC held today, public safety may have to give way to constitutional protections against government intrusion into the lives of citizens, including sex offenders.

It is a question that divides many of us and cuts to the center of Constitutional protections.  What is more important, the rights of the criminal or the protection of potential victims?  The ruling today makes this question much more difficult in Massachusetts.
August 17, 2009

Minivan Mom Tasered?

I first saw this post on Attorney Eric Turkewitz blog and I could not believe the video.  The video depicts Audra Harmon who was initially pulled over for allegedly talking on her cell phone.  Apparently when she was able to demonstrate to Officer Sean Andrews that she was not in fact talking on the phone, he decided to cite her for driving five miles over the speed limit.  Why bother admitting he was wrong?  Ms. Harmon disagreed and asked to see the tape from the radar gun indicating her speed. 

Ms. Harmon made the mistake of getting out of her vehicle to see the radar gun.  Upon realizing her error, she quickly returned to her vehicle... but that was not the end of it.  She was dragged back out of her car in front of her kids and while standing in a completely non-threatening posture, was struck twice by the officers taser.

I understand cops have a dangerous job, and I understand that this is an outlying exception caught on video.  The point, however, is that abuse of power occurs.  Racial profiling occurs.  It is not acceptable.  Thanks to this video Ms. Harmon will likely be compensated by the city, and with any luck Officer Andrews will be re-assigned, but there are many defendants who do not have a tape to corroborate their sometimes unbelievable tales of police abuse of power.
August 6, 2009

Are Ghostwriters paid by Drug Companies Controlling Our Medical Treatment

There is a shocking story in the New York Times that shows in equal measures how far drug companies will go to push their agenda, and how necessary the plaintiff bar is to prevent such abuses.

I have helped represent a woman who was diagnosed with breast cancer after being prescribed Premarin for decades, so this story was very relevant to me.  Drug companies pushed the publication of 26 articles that downplayed the risk of hormone replacement therapy while emphasizing the benefits.  Wyeth paid a medical communications firm to draft the documents while sales of Premarin and Prempro soared to over $2 billion in 2001. 

In 2002, a federal study led to the discovery that menopausal woman who ingested certain hormones had a heightened risk of invasive breast cancer, stroke, and heart disease.

Many doctors rely on such medical literature to decide when and what to prescribe their patients.  The system is inherently flawed when that information is biased and drafted by drug companies themselves.  This information became public following as a result of discovery in one of the thousands of lawsuits that Wyeth now faces.