February 10, 2010

American Idol's "Pants on the Ground" Singer Hires Attorney

General Larry Platt could never have imagined that when he auditioned for American Idol in Atlanta to sing a funny song of his own writing that he would create a phenomenon. Platt is the next in the long line of viral videos and entertainers to emerge from American Idol auditions...William Hung, anyone? The video of his performance, shown here, has already received several million views on youtube, spawned several re-mixes and found it's way into politics and the pop mainstream.

I'll admit that I laughed the first time that I heard the song. Today, it takes a step further into the world of entertainment law and that is where I become really interested. The song is being played everywhere and other artists are re-mixing it to their taste, yet General Platt has not received any money.

The song is not registered with the Copyright office. In fact, since the performance several people have attempted to copyright the song, but General Platt was not one of them. General Platt is keen to make sure that if anyone profits off of his song that it is him. He has hired an attorney to help protect his legal rights. General Platt will have to show that the work was an original and that he was the first to enter it into commerce. Luckily, given the popularity of American Idol, 50 million people can attest to the fact that General Platt was the first to introduce the song to the world.

The biggest challenge facing Platt will be to prove that the song was original. A pair of brothers from Detroit have already come forward stating that in 1996 they wrote a strikingly similar song called "Back pockets on the floor". The similarities between the two songs are obvious particularly concerning the lyrics, although, in my opinion, General Platt is the superior rapper. Unfortunately, for General Platt any royalties he might be able to secure might be lost to a copyright infringement suit from these two brothers.

General Platt has been asked to record a version of the song. Hopefully, he can receive royalties from this recording and make some money off of his effort before the song becomes a pop culture afterthought.

If anyone is considering singing original material on future seasons of American Idol, be absolutely sure to copyright the material first.

Finally, you have to give it to Simon - love him or hate he really can spot a hit maker. After the audition he says I have a terrible feeling that song is going to be a hit!

February 9, 2010

Illinois Supreme Court Uncaps Medical Malpractice Awards... Again

The battle over tort reform is being fought on every front, namely, media and public opinion, federal and state legislatures, and the judicial system. In Illinois, at least, the Supreme Court has stood up for its citizens civil rights and rejected a state law capping damages in medical malpractice lawsuits, finding that such a statute violates the separation of powers between the judicial and legislative branches. More specifically, it was determined that legislative caps on pain and suffering interferes with the Courts rights and discretion to reduce jury verdicts.

The Illinois law in question sought to cap damages against Hospitals at $1 million dollars and $500,000 against doctors and other health professionals. The case, Lebron v. Gottlieb Memorial Hospital, is one of many similar cases being fought across the Country right now.

Medical malpractice caps do not work, result in substandard medical care, and is not the magic fix-all for the healthcare crisis that certain interest groups deem it to be. Furthermore, several studies show that doctors actually pay less in malpractice premiums, when adjusted for inflation, than they did decades ago. The latter study stemming from our own Commonwealth of Massachusetts.

I have indicated in previous posts, here, and here, that tort reform is not the answer to this Country's health care problems. For one, the Congressional Budget Office has declared that malpractice costs are minimal in the large scheme of things. Second, medical malpractice attorneys, despite large potential reward, will only accept a very small percentage of cases. This is because it costs tens of thousands of dollars to bring a medical malpractice lawsuit, and many medical malpractice cases are unsuccessful. Therefore, if only the most obvious of medical errors are being challenged in the court systems, a great many errors go unpunished. This seems to combat the impression that doctors face countless "frivolous" lawsuits at the hands of greedy plaintiff attorneys.

Let's hear it for the Illinois Supreme Court. They have recognized that the judicial system is the best vehicle for protecting innocent doctors while awarding victims truly harmed by medical error. Let's hope that all States will follow their lead.

February 4, 2010

Some Thoughts on Settling Your Personal Injury Claim

The most important decision you will make following a personal injury is which Attorney or law firm you will hire to take your case. The second most important decision you will make is whether to settle the case for the amount offered.

I feel that a lot of injured victims might not understand their rights and options regarding settlement, so I have decided to write this post. This is basic information that you should consider when deciding whether you should settle your personal injury claim, and if so, for how much. Be prepared to have this conversation with your attorney when the time comes.

If the other person is clearly at fault for causing your personal injury, you can expect to receive an offer for settlement from the insurance company. This will likely occur in many types of personal injury cases especially, auto accidents, motorcycle accidents, dog bites, ATV accidents, pedestrian accidents, and slip and fall accidents. Settlements might be offered in medical malpractice or product liability cases, but typically only after a lawsuit has been filed.

It is important to remember that you, the victim, decide whether to settle a case or not. An Attorney can advise you whether the offer is fair or too low, but he or she should not decide whether to settle the case. If you feel that the offer does not fairly compensate you for the injury sustained, you should ask your attorney to carefully explain your options.

If you choose to refuse a settlement offer, then your only option is to file a lawsuit. Not all cases are good candidates for litigation and you should discuss the strengths and weaknesses of your case with your attorney. Remember that by filing a lawsuit you are running the risk of losing the case and receiving no compensation. Furthermore, minor injuries can often be settled for fair amounts without the additional expense and time required from a trial.

Settlement, however, is not always the best option. Settlement means that you are accepting an amount in lieu of exercising your right to go to trial and have a jury decide what is reasonable compensation. If the offer from the insurance company is fair, then it makes sense to settle the case and receive your money right away rather than waiting years for litigation. If the offer is unfair, or less than you initially wanted, than it might not be in your best interest to settle the case.

The most important thing to remember is that you are in control of your case. It is your injury and compensation. Do not be afraid to discuss your options and rights with your attorney so that you fully understand the decision you are making.

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February 3, 2010

One in Five US Nursing Homes Receives Poor Ratings

A new study shows that approximately one in five nursing homes across the country rates poorly for the quality of care. That means that hundreds of thousands of senior citizens are residing in nursing homes that received the absolute lowest quality score and are subject to nursing home abuse and neglect.

Several years ago the Centers for Medicare and Medicaid Services began attributing a score to nursing homes ranging from one star to five stars based on overall quality, staffing, complaint investigations, and the results of health inspections. The most horrifying statistic is that nearly all homes that consistently receive one or two stars (for overall poor quality) are owned by for-profit corporations. Cost cutting and profit seeking behavior may be putting helpless senior citizens at risk.

The following is a database of the 15,000 plus nursing homes that were assigned a grade. Click on this link to look at how nursing homes in Rhode Island and Massachusetts stack up from the best to the worst. The lowest scoring nursing homes averaged 14 deficiencies per facility which may be attributed to quality of life or overall safety.

Family members must be proactive if a loved one is in a nursing home because they often can not speak up for themselves. This is particularly true if the nursing home in which your family member resides scored very low in this study.

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February 1, 2010

Cellphone Bans While Driving May not Prevent Auto Accidents

We've discussed the effects of cell phones (talking, texting, etc) in automobiles in past posts. Rhode Island is one of the many States to ban texting while driving but a recent report suggests that such laws may be ineffective in preventing auto accidents. The study compared auto accident statistics between States that have enacted cellphone bans and those States that have not enacted such bans and found little evidence that the laws were effective.

The growing concern comes amidst a University of Utah study which indicated that using a cell phone while driving was as dangerous, if not more dangerous, than driving drunk. Earlier this week Transportation Secretary,Ray LaHood, recently announced laws to prevent cell phone use by commercial truck drivers and bus drivers. However, effective efforts to curb cell phone use by the majority of drivers continues to be slow.

There is now substantial evidence that cell phones adversely affect drivers and can lead to auto accidents. If you have been involved in an auto accident and believe that the other driver was distracted by cell phone use, tell the police of your suspicion or attempt to secure eyewitnesses who can confirm the other driver was on the phone. This may help your case if liability (fault) for the auto accident is not already clear.

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January 29, 2010

2.3 Million Product Liability Cases?

The headline might be an overstatement of what Toyota Motor Company is facing as a result of the recent recall of over 2 million cars, but the scope of their potential problems is still staggering.

In the United States, some 2.3 million Toyota vehicles (the worldwide recall could extend to 9 million vehicles) are being recalled because the accelerator pedal could wear down potentially causing it to become difficult to depress, become stuck in a partially depressed position, or become slow to spring back. Toyota claims that the percentage of vehicles that might actually be affected is very low, and there are no verifiable statistics as to how many accidents have been caused as a result of these accelerator problems. Nevertheless, Toyota is facing a great number of product liability cases.

The House Energy and Commerce Committee has investigated the problems which may be the worst since the Ford and Firestone Tire debacle. According to the committee, unintended acceleration in Toyota vehicles has resulted in 19 US deaths in the past decade. Many lawsuits, including several class action lawsuits, have already been filed against the manufacturer. The plaintiffs all allege sudden, uncontrollable acceleration up to speeds over 80 mph. Neither brakes nor slamming the vehicle into park was sufficient to stop victims from striking trees, running red lights subsequently causing intersection accidents, and in one particular case, accelerating over a cliff.

Plaintiff lawyers are alleging that Toyota has been aware of this problem for a long time but has failed to take adequate steps to prevent the disasters described above. One of the attorneys involved in a lawsuit against Toyota has stated that the company initially blamed the drivers, then improper floor mats, and finally the accelerator pedals. It should also be noted that Toyota recalled their Lexus ES350 and Toyota Camry in 2007 for accelerator problems, but failed to extend the recall to all of their vehicles. This may have been a reckless and deadly decision by the corporation.

In the meantime, factories are closed and dealers are prohibited from selling remaining stock. The company is acting quickly to either repair or replace the problem parts on affected vehicles.

Here is a list of all affected vehicles.

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January 27, 2010

Kimberly-Clark Hit with 4.75 Million Dollar Jury Verdict

An Oregon man, Mr. Matthew Beale, has been awarded the sizable sum in a product liability suit against Kimberly-Clark which owns the company, I-Flow Corp. According to the lawsuit, I-Flow encouraged surgeons to insert a "pain pump" which supplies pain medication via a catheter to the affected area.

A jury has found that this pain pump is responsible for destroying the cartilage in Mr. Matthew Beale's right shoulder leaving the thirty-eight year old father of four permanently disabled. The story began in 2004 when Mr. Beale picked up a muscle injury playing football with his kids. He underwent arthroscopic surgery to repair the muscle at which time the surgeon also inserted the pain pump into the shoulder joint where it delivered medicine for several days. Mr. Beale began to recover but after six months found himself in excruciating pain. Mr. Beale now suffers from a condition called chondrolysis which is a severe deterioration of cartilage. Essentially, his shoulder cartilage has been eaten away leaving "bone on bone" friction.

In November, after hearing of many chondrolysis cases, the FDA stated that they have never approved such devices for prolonged infusion of medicine to joints.

This case will set a tough precedent for Kimberly-Clark and I-Flow since they are currently facing hundreds of similar lawsuits from victims suffering from chondrolysis. Attorneys for the plaintiff were successful in proving that I-Flow did not conduct sufficient testing, nor did it warn of the potential dangers.

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January 25, 2010

The Complex State of the Music Industry: Everyone Sue Everyone

The music industry continues to be a hotbed for litigation. It's penchant for controversy is sometimes staggering. What's happening just this week:

A court today reduced the "monstrous and shocking" (Judge Davis' words, not mine) $2 million dollar fine imposed on Jammie Thomas-Rasset for illegally downloading 24 songs on the internet. Now the mother of 4 will only have to come up with a mere $54,000.00 or $2250 per song. Ms. Thomas-Rasset, unable to pay anywhere near 50 thousand, plans to continue her appeal.

Universal Music Group has filed a lawsuit against the website grooveshark. Grooveshark already settled a similar lawsuit with EMI, but now face the wrath of Universal who claims that grooveshark is hosting illegal copies of their songs for the public to hear. Universal claims that grooveshark is paying nothing to provide online access to their songs.

And everyone's favorite target for plagiarism, Coldplay, is being targeted yet again. This time, a rocker named Sammie Lee Smith, is claiming that Coldplay have stolen no less than 3 songs from his catalog. It appears that Mr. Smith has a poorly imagined plan to sue any artist for copyright infringement. He has apparently recorded thousands of songs over the past few decades. Although, the overwhelming majority of these songs have never been released or heard by anyone other than himself, he is quick to point out if any melody or riff sounds like something in his vast catalog. Copyright infringement lawsuits are tough and I am skeptical about this one. Although, Satriani may be onto something with his lawsuit.

Eddie Vedder, of Pearl Jam fame, is also being sued over his cover of the Gordon Peterson song, "Hard Sun". Vedder had the legal license to cover the song which found itself on the Into the Wild soundtrack, but Peterson is claiming Vedder altered the lyrics to his song thereby "eroding the integrity of the composition."into_the_wild_movie_poster.jpg

January 20, 2010

Graco Recalls Over One Million Strollers Because of Possible Amputations

Approximately 1.5 million Graco brand strollers are being recalled after several children's fingertips have been amputated by hinges. The strollers, manufactured in China and available at all major retailers, include Graco's Passage, Alano, and Spree strollers and travel systems.

The children were injured by placing their fingers in the strollers canopy hinge while the canopy was being opened or closed. The reports so far show that five children have had their fingertips severed and another suffered serious cuts to their fingers.

Only a few months ago, MacLaren recalled approximately a million strollers because of a similar danger. Maclaren had received reports of over twelve children suffering fingertip amputations.

As with all product liability cases, plaintiffs who bring suit for the injury caused to their children will need to prove that the design of these strollers was defective. Considering a child's tendency to reach out for objects in their field of vision, it is reasonably foreseeable that a child might have their fingers near these dangerous hinges. This fact, coupled with knowledge of previous similar accidents, support a finding that the strollers were inherently defective and dangerous.

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January 19, 2010

Massachusetts Statute of Limitations for Injuries to Children

As a result of a new case, I had to conduct some research on the tolling (or lack thereof) of the statute of limitations in Massachusetts as it pertains to medical malpractice and children. Rhode Island General Law 9-1-14.1 allows for a tolling of the statute of limitations until the victim turns 18. The plaintiff then has three years from that date in which to file suit.

Massachusetts' law is not as kind as Rhode Island's law. Massachusetts General Law, Chapter 231, Section 60D states:

Notwithstanding the provisions of section seven of chapter two hundred and sixty, any claim by a minor against a health care provider stemming from professional services or health care rendered, whether in contract or tort, based on an alleged act, omission or neglect shall be commenced within three years from the date the cause of action accrues, except that a minor under the full age of six years shall have until his ninth birthday in which the action may be commenced, but in no event shall any such action be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based except where the action is based upon the leaving of a foreign object in the body.

In summary, the statute of limitations does not toll for minors in Massachusetts unless the child victim was under the age of 6 at the time of the negligence. In which case the child has until his ninth birthday in which to bring a lawsuit. In no situation, however, can a lawsuit be brought more than seven years after the occurrence of the negligent act.

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January 14, 2010

Cheese Distributed in Rhode Island Recalled Due to Possible Contamination

While no one has reported illness yet, the H.P. Hood Company is recalling two (2) Heluva Good Cheese products, which were sold and distributed in Rhode Island, due to possible bacterial contamination. The products in question are the eight ounce packages of the company's Port Wine Cold Pack Cheese Food with a sell-by date of 11/15/2010 through 12/15/2010, and the Sharp Cheddar Cold Pack Cheese Food with a sell-by date of 11/15/2010 and 12/15/2010.

The voluntary recall is the result of product sampling performed by the State of Wisconsin in the facility that produces the Heluva Good Cheese products. This sampling raised concerns over the possible contamination with a bacteria that can lead to listeriosis.

Listeriosis is a relatively rare bacterial infection that is most common in newborns, pregnant women, or those with a compromised immune system. In fact, pregnant women can account for nearly 30% of all reported cases. Premature birth, still birth and miscarriage are potential serious complications of the illness.

Symptoms of listeriosis can last for up to ten days and include fever and muscle aches. In more serious cases, listeriosis can lead to meningitis.

Foodborne illness is a very serious problem in America. Each year nearly 325,000 people are hospitalized with food poisoning. Of those, nearly 5000 people die each year. Minor cases of foodborne illness are estimated to be in the tens of millions each year.

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January 10, 2010

Inadequate Chinese Facilities Making Inadequate Generic Drugs

Our country has certainly seen a surge of problems and lawsuits associated with dangerous or defective Chinese made products including tainted fish, drywall, baby formula, and toys. It is now becoming clear that generic drugs manufactured in Chinese factories will result in a string of product liability and wrongful death lawsuits.

The most recent lawsuit to make the news comes from Texas and the family of Lloyd James Robinson. Mr. Robinson died after having an adverse reaction to Heparin he received at a DaVita Dialysis Center. The family has filed suit against both the dialysis center and the manufacturer of the drug. As it pertains to the drug manufacturer, the theory of liability is that the Chinese facility in which the drug is manufactured does not meet US regulations. Reports of adverse reactions to the Heparin injections began in early 2008 and led to a partial and then total recall of Heparin products on the market. Following the recall, the Food and Drug Administration discovered the drugs were contaminated with a "heparin-like molecule," identified as over-sulfated chondroitin sulfate. This contaminant accounted for up to 20 percent of the total mass of the each sample tested.

In order for a product liability case to be successful the plaintiffs must prove either:

  • The product design was defective

  • The product was manufactured in a defective way

  • The unsafe product lacked sufficient warning or direction

While I am unfamiliar with the facts surrounding this case, it appears that the attorneys are targeting option 2 above. Cost cutting measures in Chinese laboratories that do not meet US regulations caused a safe drug, such as Heparin, to become contaminated and, thereby, defective.

January 6, 2010

Wrongful Death Statute Now Allows for Recovery of Punitive Damages

A bill introduced by Representatives Caprio, Petrarca, Silva, Edwards, and Lally has now become law. Rhode Island General Law, Chapter 10-7 "Death by Wrongful Act" now includes the following:

R.I.G.L. 10-7-7.1. Punitive Damages. In an action commenced under section 10-7-5, recovery may be had for punitive damages if such damages would have been recoverable had the decedent survived.

Punitive damages are damages in addition to compensatory damages (medical bills, lost wages, pain and suffering, etc) that are intended to deter the defendant from acting in a certain way. Punitive damages are typically awarded in cases where the defendant's negligence was egregious or his behavior reckless. The most well-known examples have come from lawsuits against the tobacco industry.

Rhode Island joins the growing number of States (now the majority of States) to allow for punitive damages in a wrongful death lawsuit. I want to thank our State Representatives who fought diligently to pass this bill and who continue to look out for the well-being and civil rights of our State citizens.

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January 5, 2010

The New Website for Personal Injury Attorney Joseph Lamy is Live

Former clients familiar with the flash-based website will now find that it has been replaced with a new site. The new website contains significantly more content and information. I will continue to add content to the site in the coming weeks so that visitors can learn about their particular type of injury and the legal process surrounding it.

The new website contains specific pages for:

There is also a great deal of content in my other practice areas of entertainment law and criminal defense.

I am open to comment and opinion, so please let me know your thoughts.

December 29, 2009

Auto Accidents and Pregnant Women

A number of agencies are reporting about a new study regarding the effect of auto accidents on pregnant women. The study gathered data on tissue composition and the dimensions of pregnant women to help design new ways to protect expectant mothers in automobiles. After reading the article, I thought that this was a subject that warrants discussion.

There are no clear statistics regarding the number of fetuses lost each year due to auto accidents but researchers believe that the number is in the thousands. Auto accidents, even relatively minor ones, are very serious for pregnant women. It is imperative that you ALWAYS seek medical attention following an auto accident even if you feel fine.

Some complications that can occur for pregnant women following an auto accident are:

  • pre-term labor (premature birth)

  • hemorrhaging

  • high-risk pregnancy

  • birth defects

  • miscarriage

There is also emotional distress following an accident which can cause injury to both the unborn fetus and the expecting mother. I recommend that any pregnant woman seek immediate medical help following an auto accident, but especially if you notice vaginal bleeding or leaking of fluid, severe abdominal pain, dizziness, persistent vomiting, or any other uncommon symptom since this can be evidence of a much more serious problem with the fetus.

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