Dangerous Chinese Products--Ohio Law Protects Them

A happy and hopefully prosperous New Year to all. The New Year got me thinking about the Chinese New Year, and which animal will be represented as their 2009 symbol. That, in turn, made me think about all the recent news stories about dangerous Chinese products that continue to find their way into the U.S. Here's a short list of what we've seen recently:

Poisonous toothpaste. Kids' jewelry and metal toys loaded with toxic lead. Food contaminated with pesticides, carcinogens, and bacteria. Contaminated heparin. Even poisonous pet food that killed 39,000 animals. All these products had two things in common: they were made in China and consumed or used in the U.S.

According to a recent report from the Consumer Product Safety Commission, "the value of U.S. imports of consumer products manufactured in China was $246 billion, comprising approximately 40% of all consumer products imported into the U.S."

What if a dangerous product injured a child in Ohio? Under recent "tort reform" laws passed by Ohio lawmakers in 2005, Chinese manufacturers would enjoy numerous legal protections, including limits on what injured Ohio victims could recover. Chinese manufacturers' liability would be capped or limited to figures as low as 350,000. And their liability for punitive damages (damages designed to punish for willfully ignoring product safety concerns) would be limited to two times the amount of "compensatory damages" (items like medical bills or physical pain and disfigurement).

Worse yet, they could be 100% IMMUNE from punitive damages if the product causing harm was manufactured in accordance with applicable FDA standards.

One large problem however: The FDA in a recent report has acknowledged that:

many products come from countries with little ability to provide the regulatory oversight needed to assure the safety of the products exported; and
lax oversight in many foreign places presents opportunities for products to be unintentionally contaminated, or intentionally contaminated by those who mean harm, by counterfeiters, or by those who try to profit by "cutting corners."

In fact, the situation is so bad that the FDA set up a special program to take extra measures to try to ensure that Chinese manufacturers produce safer products. But we all realize now that dangerous products, food, and medicines are still making their way into the hands of U.S. consumers.

So why on earth should foreign manufacturers enjoy limited liability in Ohio for producing dangerous products? Because numerous business groups like the Ohio and U.S. Chamber of Commerce, The Ohio Manufacturers' Association, The Ohio Society of CPA's and insurance companies spent millions lobbying for Ohio products liability reforms for ALL manufacturers "to improve our legal climate." And these laws as passed protect ANY domestic or foreign manufacturers, even bad ones that cut corners on product safety and expose us to all sorts of life threatening risks. Nice to know that this is what our Legislature has been up to recently, isn't it?

Unfortunately, nobody will notice or even care about this issue until one of these products causes a tragedy to an Ohio family. And then you can expect people to be shocked and outraged at the idea that bad manufacturers are somehow protected by Ohio law. I wonder if these lobbying groups (and the politicians who voted for these laws) will then say that protecting these companies is "good for Ohioans."

Which animal is representing the 2009 Chinese New Year? Ironically, it's the ox. So whose ox is really being gored here?

What Is Democracy? Standing In Line For Over An Hour...

Today I exercised my constitutional right to vote, in order vote early (although early voting was not discussed in our Constitution by our Founding Fathers). I stood in line for an hour. I saw tireless, polite, and a bit frazzled poll workers. I saw the young, the elderly, black and white folks, blue and white collar workers, police officers, moms with squirming kids, and everyone in between--all waiting to vote.

Just taking it all in made me think: this is what democracy looks like. It may be slow. It may be imperfect. But, just like the line that eventually snaked forward, it works. It reminded me of an essay from E.B. White I read a long time ago in college. It was written in 1944, and it was in response to a letter to the local "War Board" asking, "What is the meaning of democracy?"

We received a letter from the Writers' War Board the other day asking for a statement on "The Meaning of Democracy." It is presumably our duty to comply with such a request, and it is certainly our pleasure. Surely the Board knows what democracy is. It is the line that forms on the right. It is the don't in don't shove. It is the hole in the stuffed shirt through which the sawdust slowly trickles, the dent in the high hat. Democracy is the recurrent suspicion that more than half of the people are right more than half of the time. It is the feeling of privacy in the voting booths, the feeling of communion in the libraries, the feeling of vitality everywhere.
Democracy is the letter to the editor. Democracy is the score at the beginning of the ninth. It is an idea which hasn't been disproved yet, a song the words of which have not gone bad. It's the mustard on the hot dog and the cream in the rationed coffee. Democracy is a request from a War Board, in the middle of the morning in the middle of a war, wanting to know what democracy is.

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And it is also standing in line for over an hour to vote in an historic election. And no matter who wins, it's nice to know that the public apparently is as interested in this election as they are in who wins "American Idol" or "Dancing With The Stars"...

(visit our website at www.n-wlaw.com)

New Allstate Commercial...Where's The Sequel?

Allstate has been running a recent commercial where a young man who causes a collision is sued in a personal injury case and the jury returns a verdict in excess of this poor fellow's liability insurance. The attorney for Allstate then informs the young man's parents that the injured person can now go after and take the young man's college fund and savings, etc.

The purpose of the commercial is obviously twofold. One, Allstate wants to sell higher levels of liability insurance. No problem there. But the other purpose is to plant the fear that "out of control" jury verdicts will mean that you lose everything and become a pauper on the streets if you get hit with a verdict in excess of your liability limits.

This is misleading and inaccurate for two reasons. First, our friends at Allstate don't mention that if a jury returns a money verdict greater than your liability limits, you can file for bankruptcy and discharge any personal debt in almost any circumstances (unless you were driving drunk, for example).

More importantly, in the unlikely event that you get tagged for a verdict that exceeds your liability limits, it is often because the Allstates' of the world put the screw job to you by handling your claim in "BAD FAITH." Example: you cause a crash and injure somebody. You have a $50,000 liability policy. The injured person offers to settle for $35,000 or $25,000 for example- a figure much less than your liability limits. So far, so good. But Allstate makes a "take it or leave it" offer of $8,000 to the injured person.

Allstate's unreasonable offer forces the parties to go to trial, and a jury returns a verdict of $65,000. Allstate gambled and lost. But here's the problem: it gambled with YOUR personal assets, as you now owe the injured party $65,000, and your liability limits are only $50,000. Bottom line: if Allstate's puny offer was considered unreasonable (because it could have settled the claim for $25,000 and not exposed you to losing your personal assets), Allstate can now be liable to YOU as an Allstate policyholder for handling your claim in bad faith. It is Allstate's job under the law to FAIRLY evaluate the claim and take no action that favors Allstate's interests over yours as a policyholder. If Allstate has committed "bad faith" by mismanaging a claim against you, you as a policyholder can sue Allstate for "bad faith" damages, including the $15,000 in personal liability it exposed you to, and punitive damages that punish Allstate for unreasonably exposing your personal assets.

So the next time you view this commercial, remember that in many circumstances, it is the Allstates of the world that put their own insureds in this box by making unreasonable settlement offers, and essentially gambling with their financial future and assets while trying to save a few bucks. To borrow a page from Allstate's own playbook, their "good hands" shouldn't be used to push their insureds off a financial cliff. That is the essence of "bad faith" claims handling practices, and the law gives you the right to fight back when you're pushed around.

The second commercial--where the poor kid hires one of those "trial lawyers" to sue Allstate for handling his claim in bad faith--is the one you won't see.

(visit our website at www.n-wlaw.com)

"Who Can I Sue" Website? How About "Please Just Go Away.Com?"

I recently heard a TV interview with someone promoting a new website called "WhoCanISue.com." Apparently you can write or call the site, explain what happened, and some lawyer will let you know if you have a claim. But as I understand the site, participating lawyers will pay $1,000 per month to answer questions about potential lawsuits.

Certain adjectives came to mind when I heard about this site and did some research. They include "garbage," "shameless," and "embarrasing" (and I'm keeping it clean here). What competent, self respecting, knowledgeable attorney who handles personal injury cases would actually PAY MONEY to be affiliated with this nonsense?

With the advent of the Internet, there are many ways to search for answers to legal questions that people might have, without resorting to cartoonish websites like this one. It's so over the top that it makes me wonder who's really behind this idea. It wouldn't suprise me if it's a set up for bashing trial lawyers and making us all look like fools. And sites like this are EXACTLY why we trial lawyers who think this is embarrasing, and don't resort to this crap, need to expose these sites for what they really are.

I suppose this site is good for one thing: if you consult with an attorney about a possible legal claim, I'd ask him or her: "Are you a participating member of "WhocanIsue.com?" if the answer is yes, consider the advice given to Forrest Gump, and run like hell...

(visit our website at www.n-wlaw.com)

Sometimes We're Not So Smart..................

Levity is a good thing. Lest we take ourselves too seriously, the following excerpts are actual (and hilarious) examples of not so stellar lawyer questioning taken from actual testimony. Sometimes during the heat of battle we’ve all been guilty of asking a wordy or vague question, but THESE ONES need to be taken out and shot. Enjoy!


1. Q: I show you exhibit 3 and ask you if you recognize that picture?
A: That's me.
Q: Were you present when that picture was taken?


2. Q: What happened then?
A: He told me, he says, 'I have to kill you because you can identify me.'
Q: Did he kill you?




3. Q: She had three children, right?
A: Yes.
Q: How many were boys?
A: None.
Q: Were there girls?


4. Q: And lastly, Gary, all your responses must be oral, OK?
A: Oral.
Q: How old are you?
A: Oral.



And my personal favorite is…

5. Q: You say that the stairs went down to the basement?
A: Yes.
Q: And these stairs, did they go up also?

My guess is that I'll be able to find a few more of these.........

Doll Wars: This "Runaway Jury Verdict" Is Just Fine

Last week, a federal jury awarded Mattel $100 million in damages against the designer and company of the rival "Bratz" dolls (click on the title of this post to read the article). The jury concluded that the creator of the dolls stole the idea from Mattel while working there (Mattel had asked the jury for over $1 billion in damages).

Isn't this one of those "runaway jury verdicts that the Chamber of Commerce has been crying about for years? In 2004 and 2005, The Chamber, and its legal arm, known as "The Institute For Legal Reform," spent $102 million in lobbying and a never ending public relations campaign for the sole purpose of passing legislation to limit what individuals can recover from juries at the hands of corporate wrongdoers and insurance companies. This never ending campaign (which, in reality began in the 1950's) has launched phrases like "litigation lottery," "jackpot justice," and the all too familiar "runaway juries."

So, on the heels of this monsterous verdict, one would expect The Chamber to express its usual outrage and demand "reforms" on corporate lawsuits like this one. But here's the catch: you won't hear a peep from The Chamber over this verdict. The reason: it involved large corporations' rights to recover lost profits. The lesson? It's perfectly OK, and downright American, for large corporations to spend millions on lawyers to sue when products like childrens' dolls are stolen in the marketplace.

But when you as an ordinary citizen lose a limb or are sentenced to a wheelchair due to an unsafe or recalled product, suddenly it's different. According to The Chamber, we need "limits" and "caps" and "predictibility" and "certainty" from our justice system, or else it's a "litigation lottery."

See how this works? It's a one way street on the hypocrisy highway, and it's yet another reason why the system is tilted against the individual and in favor of big business and insurance companies.

Sometimes you learn the real stench of an interest group's true colors by what it DOESN'T say.

(visit our website at ww.n-wlaw.com)

Auto Insurance Rates Are Increasing.....I Thought Tort Reform Was Supposed To Fix This?

Well, it took a few years, but now it appears that the big lie has been proven. In 2005, The Ohio Legislature passed massive "tort reform." Translation: your right to recover against drunk drivers, manufacturers of tainted food products, and other wrongdoers is now capped at arbitrary, "one size fits all" limits. The hook? "Legal reform" was PROMISED to improve Ohio's economy, create jobs, keep businesses in Ohio, and bring down insurance rates. Here's what Former Governor Taft (15% approval rating) said about this law:

"The legislature has been debating this important issue for months, and I am pleased that they passed a bill that will help improve the business climate and create jobs in Ohio."

And here's what the Vice President for the Midwest region of The American Insurance Association had to say about the bill:

"Ohio's new common sense tort reform measures will help make the state an even more attractive place for insurers to do business by creating a more stable, equitable and predictable legal system."

Well, here we are in 2008. Ohio's economy is in the tank. We've lost over 200,000 jobs in just the last few years. And now this news from The Ohio Department Of Insurance: auto insurance AND homeowners insurance rates will rise in 2008. In fact, auto rates in Ohio have risen 4.8% in the first quarter of 2008 according to this insurance report. (in fairness, auto rates declined by 2.7% in 2007 but homeowners rates had increased during this time).

So what's the upshot? Despite all the promises of "creating jobs," "improving our economy," and lowering insurance rates, tort reform hasn't done a darned thing to improve Ohio, or your pocketbook. The only thing it did do is take away your legal rights to hold wrongdoers accountable if you are seriously injured, and strip away your 7th Amendment constitutional right to trial by jury.

What a wonderful concept: limit what you can recover from drunk drivers and unscrupulous businesses, and convince you that it's good for you and your family! So where's the jobs? Where's your savings from all this reform? Are your auto or homeowners rates going down? Are your health insurance premiums falling as well? Has tort reform freed your pocketbook?

Didn't think so. The only thing it has done has improved the bottom line of insurance comapnies, who are turning around and raising your rates anyway! And if you need any more proof, here's the final nail of this fraud: there are no limits or caps on what businesses can recover when they sue each other. It only applies to you, the injured person.

(visit our website at www.n-wlaw.com)

The Other Side Of The Insurance Company Lawsuit Coin

Last week I wrote about Allstate suing a number of medical providers and personal injury attorneys nationwide over sham injury claims (see previous post "Insurance Companies Are Right On This Issue"). Well, it seems that Allstate (as well as State Farm) is in some hot water of its own for allegedly doing the same thing against its own insureds! The lawsuits were filed in New York by a physician (John McGee, M.D.) and allege that Allstate and State Farm set up fraudulent "independent medical exams" of its own insureds with select medical groups, which always concluded that the injured insureds were either not injured or would not need further treatment. By doing so, these insurance companies could then allegedly deny paying for their own insureds' past medical bills and future medical benefits.

Of course, news like this does not usually make the newspaper or get media attention (compare that to a few goofball lawsuits like the guy who, on his own, sued a dry cleaner for $54 million for a lost pair of pants). Insurance companies and business groups love to parade such lawsuits around as the poster child for lawsuit abuse. Apparently it's OK, though, for insurance companies to abuse their own insureds. Good hands? More like boxing gloves...........

(visit our website at www.n-wlaw.com)

Insuance Companies Are Right On This Issue......

As you can probably tell by now if you've read any of our previous posts, we believe that insurance companies have way too much influence and power in the courts and legislature, and use this influence to the detriment of Ohioans with legitimate injury claims. However, to be fair, there are some personal injury attorneys who abuse the system. A recent nationwide lawsuit shows that these abusers do so at their peril.

In March of 2008, Allstate Insurance Company filed a massive lawsuit against chiropractic clinics, certain physicians, and attorneys all over the country for allegedly using deception and coercion against accident victims.

According to the lawsuit, here’s how the scheme worked. Accident victims would receive a call and were told that either their insurance company, or the at fault driver’s company, wanted them to be “checked out” at a chiropractic or physician’s clinic. Upon arrival, accident victims were examined and X-rayed, told their injuries were serious or substantial, and were introduced to attorneys, who frequently interviewed the victims at the provider’s office. Obviously, Allstate figured out that when the same attorneys and medical providers were showing up over and over again on accident claims, something was up!

If the allegations in this lawsuit are true, the injured person is merely a pawn in someone else’s money making scheme. If so, Allstate and other insurance companies deserve restitution if some of these claims were actually fraudulent.

We have adamantly refused over the years to enter into any such "relationships" with medical providers. By not being beholden to anybody, we maintain our ability to be objective and exercise independent judgment for every one of our clients’ claims.

Insurance Company Rules: The Real Reason Why Insurance Companies Win

The other day, I wrote about how the Ohio Supreme Court has allowed insurance companies to confiscate every penny of an injured person's auto settlement (known as "subrogation"). And then I discovered this video. It essentially shows in video form what I tried to explain in my last post about the absurdity and unfairness of current Ohio subrogation laws (and is much more effective and funny I might add).

Enjoy. This playful poke aside, if you think these ridiculous rules are limited to Ohio, go to http://www.cnn.com/2008/US/03/25/walmart.insurance.battle/index.html to read Linda Shank's fight with Wal Mart. They battled her case all the way to The U.S. Supreme Court and won the legal right to take every penny of her $417,000 recovery after a collision with a large truck that left her permanently brain damaged (Wal Mart paid $470,000 of her bills and had a fine print subrogation clause that gave them the right to take every penny of her settlement as reimbursement).

Once the media discovered the story and skewered Wal Mart over its position, Wal Mart relented and dropped their reimbursement claim. BUT THE REAL STORY HERE IS THAT WAL MART HAD THE RIGHT UNDER FEDERAL LAW AND U.S. SUPREME COURT DECISIONS TO CONFISCATE EVERY PENNY OF MRS SHANK'S SETTLEMENT!

Congress (on a federal level) or The Ohio Legislature (on a state level) could change this oppressive and unfair law in a New York minute. Can you figure out why this hasn't happened yet? It tells you the influence of insurance companies in this country, and particularly in Ohio............

(visit our website at www.n-wlaw.com)

Your "Full Coverage" Auto Policy Is Lousy.....And I Can Prove It!

You may THINK you have a “full coverage” auto policy to protect all your losses if you’re involved in a crash. After all, that's what you were told when you bought your policy. Chances are you don’t. I would estimate that over 90% of people who have auto insurance in Ohio are SERIOUSLY underinsured and exposed to huge monetary losses if involved in a crash. In fact, your auto policy may be so lousy that you may have NO COVERAGE AT ALL AFTER A CRASH THAT IS NOT YOUR FAULT.

We have seen it happen over and over again after over 20 years of representing people injured in crashes. So I decided to do something about it and wrote a book: “How To Buy Car Insurance In Ohio To Protect You And Your Family.” In the book I explain the 2 MAJOR REASONS why you probably have a lousy auto policy, and what you can do about it NOW to protect yourself ( Hint: the details are in the fine print in your policy that nobody but we attorneys bother to read AND Ohio law that stacks the deck against you without you even knowing it until it's too late....)

The good news is'(1) there is something you can do TODAY to protect your family; (2) the book's a short read; (3) it’s FREE and (4) it may also double as a cure for insomnia, but did I also mention it’s FREE?

Just e-mail me at brian@n-wlaw.com or call us at 330-452-8831 and we’ll send it out.

Visit our website at www.n-wlaw.com

Frivolous Lawsuits: The System Is Working To Weed Them Out

We attorneys who use our due diligence to weed out and turn down potential complaints or lawsuits not worthy of pursuing are often appalled when we hear of a goofball lawsuit that rears its ugly head in the media. Why? Because it simply fuels the fire for insurance companies and business groups who try to paint our civil justice system as bombarded with scads of "frivolous cases" while pushing for "reforms" that limit legitimate cases under the camouflage of cracking down on frivolous lawsuits (see previous post "Are You A True Tort Refomer?"). Using the occasional frivolous lawsuit as a poster child for "what's wrong with our justice system," the insurance industry has been highly successful in actually limiting what people can recover for legitimate and serious injuries.

A recent Ohio case, however, shows what we have known for years, and what the public is unaware of: that Ohio, like all states, has had laws on the books for over 20 years that fine attorneys and/or litigants who pursue frivolous cases. In this case, a motel patron was levied a late charge of $46 for a late checkout. Not happy with the charge, he sued PRO SE (meaning on his own without an attorney) and asked for $750,000 and free lodging for life.

This crazy lawsuit was quickly tossed out of court as meritless. But when the patron appealled to the Court of Appeals, the Court correctly took the case one step further: it made the patron pay $2,500 in legal fees the motel owners had to expend in defending the lawsuit. As Judge Painter correctly noted: "Fortunately, this Court has few frivolous cases. But we know one when we see one."

Lessons learned:

1. Ohio has strong laws in place to deal with stupid lawsuits like these. And nobody cringes more than us when we read about garbage like this, because it feeds into the misperception the public has about our justice system. And when we're all painted with the same "frivolous lawsuit" brush, it makes it harder for us to pursue legitimate cases for our clients.

2. These crazy lawsuits are rare, and are usually filed by individuals themselves pro se, without an attorney being involved.

Visit our website at www.n-wlaw.com

In Defense Of Physicians

Unfortunately, we who handle malpractice cases are often seen as antagonists or enemies by physicians. In all honesty, however, we probably have more in common than we both realize. First, physicians deserve to make as much money in our free market system as their competence and expertise will allow. Right now, physician reimbursement rates from insurance companies and the government (Medicare, for example) are declining steadily, and this is wrong. In fact, under curent federal law, reimbursement rates for Medicare patients will decline by 10.6% in July, 2008, and another 5% in 2009.

There was a bill pending in the U.S. Senate (S 3101) that would have provided for increased reimbursement rates for doctors who treat Medicare patients, but it fell 6 votes shy of passing. Senator Brown voted for the bill and Senator Voinivich voted against it. If the reimbursement rates continue to decline, doctors may find it difficult or impossible to continue to treat Medicare patients.

One thing you can do is call Sen. Voinivich's office and tell him to support S. 3101.

Secondly, medical malpractice insurance companies were gouging physicians 5-7 years ago by raising malpractice rates by over 100% for some specialties. Of course, the insurance industry blamed rate increases entirely on lawsuits and "trial lawyers," and a massive "campaign" was launched to seek legal reforms with the promise that rates would fall again if reforms were passed. The reforms were passed, but physicians' malpractice premium rates have not dramatically decreased at the same rate in which they rose.

We said all along that physicians were being wrongly fleeced by their own insurance companies because of stock market losses, but this fell on deaf ears. Ideally, it would have been nice to join forces with physicians and expose the accounting and financial shenanigans of the malpractice insurance companies, but because the malpractice insurance-physician relationship is similar to a pre-arranged marriage, it was more convienient to paint trial lawyers as the culprits.

Nevertheless, it is our belief that physicians deserve to be well compensated for all the good work that they do, but should also be accountable like everybody else when preventable mistakes harm patients.

Visit our website at www.n-wlaw.com