Monday, January 31, 2011

Warning: Sago Palm Plant May Be Deadly To Children And Pets

If you have small children or a family pet, you may want to read this. Scary.

A colleague of mine has recently reported that a decorative indoor Sago Palm plant, purchased at a Home Depot, was responsible for liver toxicity in a dog when the dog ate some of the plant's nuts. The vet bill exceeded $10,000.

Bad enough if you have a family pet. But the real shocker is that this plant is extremely poisonous to humans as well. Just google "sago palm toxicity" and you'll find lots of information, including this:

The plant is called a Sago Palm and its highly poisonous to both pets and humans. A chemical in the plant called cycasin is toxic and often causes permanent liver damage as well as neurological damage if enough of the poison is absorbed by the body. The seeds are the most poisonous part of the plant and the effects on humans are seizures, coma and death.

Of course you and I wouldn’t just yank off a chunk of this plant and gnaw on it but the seeds are colorful so if you have kids and Sago palm in your yard educate them on the danger or get rid of the plant.

Another article suggests that dogs are strangely attracted to this plant as well.
My colleague, Ray Critchett, poses a good question: "Should companies and stores who sell this plant be required to place a warning label on them to the effect that they are poisonous to pets and children?"

Those of us who have raised small children or have pets know that both can put things in their mouths or ingest anything within reach in a split second, even if closely watched. I recall, fondly now, our childrens' attempts as toddlers to eat the dog food in the bowl on the kitchen floor.

Dog food is one thing. A plant seed or nut that can kill children and pets is quite another. And from what I've read, there are little to no warnings accompanying these plants. This is stupid and irresponsible from both a safety AND a legal standpoint.

I can't imagine losing a child or the family dog over a simple plant in the corner of the room. So spread the word.

Wednesday, January 26, 2011

Dennis Kucinich's Olive Lawsuit: Is It The Pits?

Here we go again...more fodder for the lawsuit bashers...

CNN is reporting that Dennis Kucinich has filed a $150,000 lawsuit against a cafeteria for a rogue olive pit that he bit into as he was eating a sandwich wrap. Apparently he needed some dental work and some surgery as a result of the dental trauma.

We all know what is going to come from this, Conan, Letterman, and Leno jokes aside. Groups like The Chamber Of Commerce will jump on this like hyenas on a carcass, like they always do, when one of these lawsuits hits the media. They'll assail it as another example of someone trying to hit the "litigation lottery" and drag the lawsuit papers around as another poster child for much needed "legal reforms."

Unfortunately, Mr. Kucinich has given them some gratuitous ammo with this lawsuit. But let's break this down as best we can from the scant information we know. First, there is a possiblity that the pit should never have been in the wrap he was eating. Let's assume it had no business being there and was a mistake.

If he did require extensive dental work due to this mistake, certainly he would be entitled to recover the cost of the procedures, and the pain and inconvenience associated with it. I think most people would agree with that. So far, so good, but...

Where this lawsuit will start to smell, however, is the claim in the complaint for $150,000. First, there was no need to ask for a specific amount of money in the complaint. His attorneys could have included a short paragraph in the complaint that requested "that he be awarded a sum of money to compensate him for the past and future costs of any necessary medical or dental expenses, and the the pain and inconvenience associated with the dental trauma and the multiple procedures" and left it at that. In fact, in many states, like Ohio, we are prohibited from asking for an amount in the complaint that exceeds $25,000.

My guess is that if a specific monetary amount was omitted from the complaint, it would not have made news on CNN's website. Or, if it did, the story would have died as soon as it surfaced.

But the demand for $150,000 will be the proverbial gas can that ignites a fire of criticism, and will become fodder or a symbol of yet another "excessive lawsuit." Totally unnecessary in my humble opinion, as the hit Mr. Kucinich will take from it, and the misperceptions of our legal system it will generate, far outweigh the utility of asking for that amount. This is especially true given the fact that the amount sued for often times is not reflective of what the case may settle for, or what a judge or jury returns in the form of a verdict.

I don't know who said "All press is good press," but with any maxim, there are usually truckloads of exceptions.

I'm sure I'll hear about the "olive pit" lawsuit, right next to the "hot coffee" case, when I pick my next jury.

Wednesday, January 12, 2011

The Chamber, Lawsuits And Jobs: If Only The Truth Mattered...

Every Superman has his kryptonite. Take, for example, the monolith known as The U.S. Chamber Of Commerce, considered to be Superman by some and a bully by others.

"Jobs, not lawsuits." This is their mantra. According to the StarChamber, our legal system kills jobs. Less lawsuits equals more jobs.

It's a simple and attractive premise. It's an easy message for The Chamber to disseminate in a never ending cycle of rinse, spin, and repeat through website videos, press releases, "reports," and e-mail alerts.

Their solution? Massive legal "reform." It's an "all you can eat" appetite for reform with a wish list as long as the Kardashian kids' Christmas list. At the top of the list are one size fits all, government imposed caps or limits on damages you can recover if you're maimed by a drunk driver, have the wrong organ or limb removed during surgery, or ingest tainted food or drugs. "Govermnent--bad. Government imposed legal reforms--good."

Now for the kryptonite. For the last decade, The Ohio Legislature has done the Chamber's bidding. It has passed lawsuit limits on all Ohio personal injury lawsuits, including nursing home, medical malpractice, and products liability cases, and even cases where Ohioans are injured by drunk drivers. We also have punitive damage limits in all cases too. A "model" of tort reform that the Chamber would be very proud of. The Ohio Supreme Court has upheld the constitutionality of virtually all of these reforms.

And now we also have some solid court statistics coming from The Supreme Court Of Ohio. And the numbers are illuminating:


Case Designation Number Filed * Percent of Total Civil Cases
Evictions/ F.E.D. (Municipal/County) 109,346 14.52%
Foreclosures 99,199 13.18%
Products Liability 263 0.03%
Professional Torts 1,705 0.23%
Civil Torts 27,666 3.67%
Workers' Comp. 8,698 1.2%
All Other Civil Cases 506,007 67.21%
Total Civil Cases 752,884 100.00%

(Sorry, but I could not get these columns to line up and gave up after 47 or so attempts)

Compare these numbers to 2002, shortly before The Ohio Legislature passed the beginning of many of The Chamber's lobbied for reforms. Notice the HUGE drop in "personal injury" type lawsuits (in bold) in 2009 as compared to the "pre-reform"
numbers in 2002:

Case Designation Number Filed * Percent of Total Civil Cases
Evictions/ F.E.D. (Municipal/County) 106,313 16.36%
Foreclosures 59,719 9.19%
Products Liability 629 0.10%
Professional Torts 3,448 0.53%
Civil Torts 45,020 6.93%
.Workers' Comp 8,707 1.34%
All Other Civil Cases 426,069 65.56%
Total Civil Cases 649,905 100.00%

So there's no confusion, here are some definitions of the types of cases shown above:

Civil Torts – Suits brought by a party to recover for personal injury or property damage. These do not include claims based on a breach of professional (e.g. medical or legal) duties by professionals, and also exclude claims for products liability, workers’ compensation, and claims for civil rights violations.
(This would be your average auto accident, slip and fall, etc type lawsuit)

Eviction/F.E.D.* – “Forcible Entry and Detainer.” A summary proceeding initiated under R.C. 1923 or 5321 for restoring possession of real property to one who is wrongfully kept out or is wrongfully deprived of possession, including suits by landlords to evict tenants.

Foreclosures – Actions involving or arising from the foreclosure of property, usually resulting from an alleged default by a homeowner on a mortgage.

Other Civil Cases* – Civil actions not included within any of the other listed categories, including contract claims, small claims suits, and suits designated at “other civil” by the county, municipal, and state courts.
(For example, one business suing another business for a breach of contract, for example)

Products Liability – Actions based on an allegation that a product with manufacturing, design, or warning defects caused personal injury or property damage.

Professional Torts – Civil tort actions based on the alleged failure of a professional to act in accordance with a professional standard of care.
(Not limited to medical malpractice cases, and would include claims against architects, engineers, accountants, attorneys, and other professionals)

What do the numbers tell us? Foreclosures, kicking people out of leased properties, and business to business lawsuits constitute about 81% of all civil lawsuits. Since the enactment of endless "reforms," all personal injury lawsuits in Ohio have decreased by approximately 50%!

Ohio's population is approximately 11 million. Yet, we had a mere 1,705 professional liability lawsuits and a paltry 263 products liability suits in 2009. Does this sound like a litigation explosion or a state bogged down with "too many lawsuits?"

Conclusion: personal injury lawsuits are trending down precipituously every year. But according to the Chamber, if lawsuits have dramatically dropped, it stands to reason that jobs should be exploding in Ohio, n'est pas?

So where are all the Ohio jobs created by tort reform? How does "less lawsuits, more jobs" sound now? Ohio's economy is reeling, unemployment has never been higher, and the dreaded "personal injury lawsuits" are dropping significantly every year.

Perhaps the Superman analogy was a bad one after all. The more I think about it, The Chamber's drivel is more akin to Linus waiting for The Great Pumpkin.

In the meantime, our legislature has traded your legal rights for this rickety promise. So put your heavy coats on as you sit in the pumpkin patch waiting for all these jobs. It gets cold here in the Fall, and from the sounds of it you're going to be there a while...

Sunday, January 9, 2011

California Insurer's 59% Rate Hike Exposes Fraud Of Proposed Malpractice "Reforms"

I think it was Mark Twain who said: "A lie can travel twice around the world before the truth can get its pants on in the morning."

In the recent health care debate, Republicans have maintained, as the centerpiece of their proposals, that enacting government imposed, one size fits all "caps" or limits on malpractice lawsuits will dramatically decrease health care costs and premiums. In broken record fashion, they have repeated this canard, as if federalizing state malpractice laws(the very government intervention they otherwise loathe at every turn), is the magic elixir that will solve our escalating health care costs.

Except that there's one major hole--better yet a crater--with this argument. Better yet, there's 32 holes to be exact. At least 32 states have already passed caps on malpractice damages that victims can recover. So we have some history and some data to test this insurance friendly hypothesis.

The biggest crater of all is California. In approximately 1975, it passed a $250,000 cap on "non-economic" or pain and suffering damages. Translation: lose your limb, an organ, or the ability to walk, talk, or function, and your lifetime of misery is reduced to an arbitrary $250,000.

California's caps are often cited as a "model" reform for politicians who seek to impose government imposed caps on all 50 states. So it stands to reason: if there is a direct relationship between capping malpractice damages and health care costs and premiums, why on earth is Blue Shield, California's largest insurer, seeking to hike premiums by 59%? Here's their official reason:

"...our individual market medical costs are rising rapidly due to higher provider prices, increased utilization, and the fact that healthier people are dropping coverage during a bad economy..."

That, plus good old fashioned greed, and friendly laws/regulations allowing such rate hikes, is probably the real motivation. But this story proves what those opposed to the magic wand of lawsuit caps have been arguing for years: the health care cost conundrum is due to a multitide of factors, the main one being that people are living longer, and therefore are utilizing health care resoures longer.

I have yet to hear one person in the media ask any politician this simple question: "If caps on damages are the answer to dramatically reducing health care costs, can you show me one state where health care costs have been reduced by one penny in the 32 states that have passed these caps?"

Anyone? Anyone? Mr.Buehler.....? Yet, this lie is repeated over and over on Sunday talk shows and on the floor of Congress as if it is a truism. Meanwhile, California consumers are about to get soaked in one of the most classic "bait and switch" tactics around right now: caps and reduced health care costs.

Thursday, January 6, 2011

Drive Thru Barn Not The Greatest Business Model...And A Lesson About The Importance of Uninsured/Underinsured Motorists' Coverage

From the "incredibly stupid idea" department...

According to a recent Texas lawsuit, Don's Fly-Thru Beer Barn was a drive-in bar "complete with carhops where drivers enter the establishment by driving their vehicles into a building and then they are sold alcohol while still inside their car." Worse yet, patrons were "allowed to drink and drive right out of Don's Fly Thru Beer Barn with their alcoholic beverages in hand."

Brilliant business model, eh? (It's up there with the "Bag O'Glass" childrens' toy made famous by the Saturday Night Live skit with Dan Aykroyd aka "Irvin Mainway"). All kidding aside, a patron there was allegedly sold a "30 pack" of beer (seriously-there is such a thing?), drank enough of it there to get hammered, and drove away...killing one motorist and paralyzing another.


A lawsuit waiting--no SCREAMING--to happen, and for good reason. If the facts of the lawsuit are true, this despicable establishment should be sued out of existence and shut down. But here's the problem. Most likely, this joint probably had no liability insurance to cover its stupidity. And I'd also wager that neither did the drunk driver. Thus. the families could be stuck with a 7 figure, uncollectible verdict against these miscreants.

The teaching point here is that there are many irresponsible businesses out there like drive thrus, bars, and strip clubs, who sell alcohol irresponsibly to people who are equally moronic when they get behind the wheel. The only way you can protect yourself as a motorist is to buy as much uninsured and underinsured motorists'(known as UM/UIM) coverage as you can afford to buy. This is the most important coverage you can buy for your auto policy. Why? Because it allows you and your family to pursue a claim against your own company when someone with little or no insurance injures you.


Most insurance agents do a poor job of emphasizing the importance of this coverage. And here's a secret you won't likely hear from your agent: you can probably upgrade your standard, lousy "full coverage" $100,000 auto policy to $500,000 or even $1 million in UM/UIM coverage for about $150 per year.

That's about half the cost of a monthly 30 pack...