November 17, 2009

DJ AM to Test Limits of Proximate Cause

I found an interesting story on the website TMZ which I am embarrassed to comment on or admit that I read. Nonetheless, it turns out that the family of DJ AM (aka Adam Goldstein) has filed a wrongful death suit against several defendants involved in his airplane crash in 2008. You may remember that DJ AM died in August of this year from a drug overdose. The family alleges in the lawsuit that DJ AM became addicted to painkillers following the serious injuries sustained in the airplane crash and ultimately died from this addiction.

Proximate cause is an essential topic in personal injury litigation. It asks if an event is sufficiently related to an injury to be determined as the cause of that injury. For example, we can easily link a broken wrist to a slip and fall. In more complicated scenarios, the classic test is often referred to as "but for". In this scenario, DJ AM would not have died of an accidental drug overdose but for the negligence of the airline that caused his prior injuries.

I think that it is a stretch to link an accidental overdose of prescription drugs to an accident that occurred almost a year earlier, and the attorneys will have a tough case to present, but kudos to them for thinking outside of the box.

November 2, 2009

Vegas - Prostitution is All Yours!

Tuesday it will be official... indoor prostitution, for many years legal in the State of Rhode Island, is officially illegal.  The House overwhelmingly approved a bill to close the loophole in RI law that inadvertently allowed prostitution.  The previous law only made solicitation illegal, so that a prostitute could be arrested for "walking the streets."  The law, however, did not explicitly ban exchanging sex for money, so the Providence Phoenix and Craigslist, have been a haven for consenting adults to legally get together.  Not to mention the dozens of strip clubs and Asian massage parlors throughout the State.

Governor Carcieri is set to sign the law into effect on Tuesday.  A fight was made to prevent the passing of the law.  Opponents of the new law pointed out that making the activity illegal will not rid the State of prostitution but will force women to hide their activity where they are more likely to be harmed by dangerous "johns" or pimps.  In the end, I guess the legislature did not want to be known as the only prostitute friendly State outside of Nevada.

One could argue that the impetus to close this loophole began with the documentary film "Happy Endings" which illustrated the plight of woman trafficked from Asia for sex and living in squalor at one of Rhode Island's many infamous massage parlors.  The film thrust Rhode Island into the spotlight, particularly among those unfamiliar with the State's prostitution laws.

The legislation will make prostitution that occurs in brothels, strip clubs, homes or other indoor venues a criminal misdemeanor punishable for first offenders by up to six months in prison and fines of up to $1,000, or both.  Prostitutes convicted of multiple offenses would face up to a year in prison and fines of up $1,000, or both
October 24, 2009

Understanding Wrongful Death in Rhode Island

The Rhode Island wrongful death statute, R.I.G.L. section 10-7-1, like that of all other states, allows a suit to be brought against a liable party who caused the death of another.  The reason such statutes are necessary is that according to old common law, a suit died with the person who had the right to bring the suit.  In other words, if the plaintiff was killed in the accident, there was no person to available to bring the lawsuit, and hence no lawsuit.

Today, when someone dies due to the fault of another person or entity (such as a car manufacturer), the survivors may be able to bring a wrongful death lawsuit.  This lawsuit seeks compensation for the loss suffered, including but not limited to, loss of wages and earning potential, companionship, and funeral expenses.

Wrongful death claims involve all types of fatal accidents from simple car accidents to complicated medical malpractice or product liability cases. Persons, companies, and governmental agencies can be legally at fault for acting negligently (failing to act as a reasonable person would have acted) or for acting intentionally.

Immediate family members, such as spouses and children, are entitled to bring a wrongful death lawsuit in Rhode Island.

 It is also VERY important to know that the House of Representatives in Rhode Island voted to approve a bill which amends the wrongful death statute to allow parents to make a claim for loss of parental society and companionship even if the child is over the age of 18 and no longer a minor.  (please see my previous post regarding this change.)

 The truth is no lawsuit will ever compensate for the loss of a family member and loved one.  It is, however, important to understand your rights and contact an attorney who can help the family get their feet back on the ground.

 Contact my office for a free consultation.
October 19, 2009

Congratulations to New Rhode Island Attorneys!

The Supreme Court is now listing the results of the July 2009 Bar Exam.  I would like to congratulate all the new attorneys who passed the bar.  Be proud, our State exam is not an easy one.
October 13, 2009

Michael Jackson's New Single "This is It" Shows Need for Artists to Protect Their Rights

The long arduous story of Michael Jackson's new single, "This is It", released on Sunday night, shows how complicated rights and ownership of music can become.

The story begins in 1983 when Paul Anka and Michael Jackson (then at the height of his stardom) co-wrote a song intended to appear on a duets album that Paul was recording.  Shortly after the song was completed, MJ pulled away from the project and took the recordings. 

In 1991, R&B singer Safire recorded a version of the song titled, "I Never Heard."  That recording gave writing credits to both MJ and Paul Anka.  On Sunday, almost twenty years after "I Never Heard", the Jackson estate released "This is It."  Many people in the music industry immediately recognized the similarities between the two songs.  The problem was that Paul Anka did not receive a writing credit for "This is It."

Prepared to take the case to court, Paul Anka and the Jackson estate have agreed to terms and Paul Anka has now received his deserved writing credit.

This song shows the need for song writers and collaborators to protect their rights.  This song took several variations over three decades and nearly led to a lawsuit.  I wonder if the this would have settled so easily had the co-writer been an unknown artist without a legal team behind him or her,  as opposed to a legend like Paul Anka.
October 6, 2009

Judicial Panel Set to Interview 6 For Supreme Court Spot

The Judicial Nominating Committee will interview six potential candidates to fill the vacancy created by the promotion of Judge Suttell to Chief Justice. 

Three current judges: Judge Savage and Judge Indeglia of the Superior Court, and Judge D'Ambra of the Family Court will be interviewed.  In addition, three private attorneys, John A. MacFadyen, Samuel Zurier, and Sandra Lanni will be considered.
October 5, 2009

Botox Sues for Right to Promote Off-Label Use of Drug

Allergan Inc., the makers of Botox, and it's sister product, Botox Cosmetic, are bringing a lawsuit against the United States, the FDA and it's commissioner, Margaret Hamburg, as well as the Kathleen Sebelius, secretary of Health & Human Services.  The suit alleges that the country's current stance concerning off-label use of drugs is unconstitutional.

A doctor can legally prescribe a medicine to treat an illness even if that medicine is not approved for that purpose.  This is a so-called off-label use.  While this practice is legal, drug companies are not allowed to "push" off-label uses to doctors. 

Drug companies, obviously find this unfair.  They argue, that if a drug works to treat an illness they should be able to promote it even before they have proceeded through the countless clinical trials needed in order to gain approval from the FDA.  The basis of their argument - Free speech!

Allergan's complaint claims the FDA "has promulgated a series of overlapping and interlocking regulations that combine to render unlawful virtually all manufacturer communication, through any avenue, to any audience, about the lawful off-label use of a prescription drug."  Furthermore, "the inability to share such important information proactively with the medical community violates the First Amendment and potentially diminishes the quality of patient care."

I think the First Amendment argument is a novel approach.  The Courts, however, have often limited free speech if necessary for the greater good.  One could argue that the FDA is already hopeless in combatting the power of drug companies, and this lawsuit is an attempt to cripple the FDA which serves an important and valid purpose for the general public.

A victory for Allergan clearly creates a slippery slope for drug manufacturers who will be able to enter a product into the market for one purpose and then promote it for countless others without the safeguards created by the FDA.
October 2, 2009

Musicians - Obtain a Mechanical License to Legally Use Other's Material

I am often asked: Can I legally record and distribute a cover song? And if so, how?

The answer is a mechanical license.  These licenses are paid and distributed to the artists who own the intellectual property that you are covering.  This is the only legal way to record and distribute material that is owned by another artist or musician.  So, if your band is planning on covering the The Clash for your demo or CD, be sure that you are not setting yourself up for a lawsuit.

Many retailers, both in store and on-line, will refuse to carry music if they believe the necessary licenses are missing.  This is because they open themselves up to a lawsuit for selling bootlegged music.  The license fees are relatively low and well worth the expense to avoid a lawsuit.

My office can help you obtain the necessary licenses so that you can sell your music with confidence and get your independent CD into the stores.   Call for a free consultation today.
September 29, 2009

An Economic Argument Against the Death Penalty

Personally, I abhor the death penalty for a number of ethical, political, and philosophical reasons.  Fortunately, I practice in two states that have abolished the practice, so it is not a day to day concern of mine.  That said, here is an interesting editorial from the NY Times making an economic argument to abolish the death penalty nationwide.
September 25, 2009

Coyote Ugly Sued

In the world of interesting injury lawsuits comes one from cu for blogTennessee.  A college student is suing the Coyote Ugly Saloon, made famous by the movie of the same name and known for women dancing on top of the bar, after she fell off the makeshift dancefloor striking her head.

I would be quite astonished if this was the first time the bar was sued for such an event.  The situation does present interesting liability questions.  According to the plaintiff, she was encouraged to climb on to the bar by employees of the club.  She claims to have fallen because the bar top was slippery with drinks.  So it sounds like a great liability claim until we consider that she is a college student in a bar.  I'm going to guess that defense will argue she was bombed.  Then again, all the more reason for the employees to keep her from dancing on the bar.

Here's wishing her a quick recovery.
September 23, 2009

Another Interesting Article on the Medical Malpractice Debate

The NY Times published this piece by David Leonhardt, which I believe does a great job of avoiding the emotion of the subject and examining the matter on the facts alone.  Tort reform is on everyone's lips as we discuss changes to our health care system, but there is no valid reason why.  Our health system is a mess for a number of reasons, the least of which is the plaintiff bar.  Mr. Leonhardt cites economists who say:
The direct costs of malpractice lawsuits -- jury awards, settlements and the like -- are such a minuscule part of health spending that they barely merit discussion...

...All told, jury awards, settlements and administrative costs -- which, by definition, are similar to the combined cost of insurance -- add up to less than $10 billion a year. This equals less than one-half of a percentage point of medical spending.

I have made the point in previous posts, that very few medical malpractice cases are accepted by attorneys and/or go to trial.  The high cost of a lawsuit and the difficulty in proving medical malpractice prohibits excessive lawsuits.  Mr. Leonhardt supports my opinion:
After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim.

Contrary to the perception of some, we do not have a court system backlogged with frivilous medical malpractice lawsuits which are causing the death of our health care system.  The number of cases and costs attributed to medical malpractice litigation is astonishingly low in comparison to the total cost of our health care system.

Mr. Leonhardt does criticize the current system by pointing out that fear of malpractice leads to defensive medicine which is often wasteful.  Unfortunately, there is no solution to combatting defensive medicine.  States that have medical malpractice caps, or other legislation meant to curb litigation, often have similar amounts of spending.  One reason could be that doctors are paid more for doing more, and the excess testing and treatment is as much financial opportunism as it is defensive medicine.
September 16, 2009

Peter Neronha Sworn in as US Attorney in Rhode Island

Former State prosecutor, and fellow graduate of my alma mater BC Law, Peter Neronha was today sworn in as the US Attorney for Rhode Island.  The Senate confirmed Neronha's confirmation on Tuesday with the support of both RI Senators, Reed and Whitehouse.   Neronha became a federal prosecutor in 2002 after spending several years as a Rhode Island State prosecutor.

Best of luck.
September 15, 2009

Another MBTA Accident is reporting that a commuter rail pulling into South Station has been involved in an accident injuring at least 12 people.  Apparently, the conductor pulled the train too far into the station striking the rubber bumper at the end of the line.  Although, the conductor was driving at a low rate of speed at the time of the accident, many passengers were already standing and collecting their bags which presumably caused a number of passengers to fall.  There is no word if any of the injuries are serious.
September 11, 2009

Salmonella Recall in Rhode Island

Kilwin's Quality Confections is recalling all seven ounce packages of chocolate covered peanuts and all bulk chocolate covered peanuts sold in its stores before April 1 because of possible salmonella contamination.  Salmonella can cause serious infections and even death, particularly in children, the elderly and those with weakened immune systems.

No illnesses have been reported to date.  Kilwin's is a Michigan candy retailer with stores in several States.  The Rhode Island franchise is located in Newport.  If you or a loved one has been injured because of this product, contact our office for a free consultation.
September 11, 2009

No One is Free From the Ire of the Recording Industry

Today it appears that the Ellen DeGeneres Show is going to be sued for illegally broadcasting music.  It appears that those quirky trademark dances that Ellen performs which some people, not including this author, find funny, have been performed over music that was not properly licensed.  That's right - a national television show broadcast to millions apparently forgot to obtain licenses and permission to broadcast music. 

When asked why they did not obtain the proper licenses, one of the show's producers allegedly replied we don't "roll that way."  That at least is kind of funny.  Ellen herself was not listed as a defendant in the suit.