WHO IS AN IDEAL JUROR?

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The New York Times recently ran an interesting story about what seems to be a trend of lawyers selecting jurors who know nothing at all about the facts of a case or the issues in dispute. One could argue that this leads to juries being comprised of uninformed and ignorant jurors. On the other hand, it makes sense to have jurors who will be guided solely by the evidence they hear in court.

The U.S. Constitution guarantees the right to trial by an impartial jury. This right is derived from the English law and it is generally thought that the first jury trial occurred in a criminal trial which took place in 1166. This right was confirmed in the English Magna Carta of 1244 and is enshrined as a fundamental right in the Declaration of Independence, the United States Constitution, the Texas Declaration of Independence, and the Texas Constitution.

Who is impartial? That question is exceedingly difficult to answer.  

The Texas law speaks of jurors who are free of bias and prejudice. Bias means an inclination to see things a certain way.  In other words, a predisposition or a leaning in a particular direction.  Prejudice means prejudgment of facts or issues. For example, there are people who firmly believe that police officers tell the truth when they testify. On the other hand, there are those who are highly skeptical of the credibility of police officers as witnesses. We could come up with countless examples of juror biases and prejudices that could potentially affect the outcome of a case depending upon the facts and the issues in dispute.

In selecting a jury, lawyers are generally entitled to ask potential jurors questions which are designed to reveal biases and prejudices that could be important to the case.  This is done under the close supervision of the trial judge and is not intended to be embarrassing to the jurors. Obviously, the skill of the lawyer in asking questions is important and it is of the utmost importance that jurors answer in a completely candid manner. If a juror indicates bias or prejudice, it is up to the trial judge to determine whether the juror should be disqualified.

If a juror answers in a way that indicates the juror does have a bias or prejudice about an issue in dispute, it is common for the trial judge to ask the juror if he or she will be able to set aside that opinion and follow the law as instructed by the judge. Put on the spot this way, most jurors say they will set aside their personal opinions and follow the law. This response is to be expected. After all, it takes more courage than most people have to tell a trial judge you will not follow their instructions. If the juror says they will set aside their opinions and follow the law as instructed, most judges hold the juror to be qualified to serve. The problem is that scientists who study human behavior will tell you this cannot be done, i.e., people cannot set aside their opinions and beliefs even if they want to. The fact of the matter is that all human beings have fixed opinions about many things based upon their life experiences and they will consciously or subconsciously make decisions which are in accordance with their preconceived beliefs.  You can see this principle at work every day in a political context as each side hears what it wants to hear and tunes out or discredits the rest. This is the basis for the very old saying: “A man convinced against his will is a man unconvinced still.”

So, back to the New York Times story. The trend observed by that writer is true.  Lawyers, now knowing much more about human behavior and how we make decisions, are reacting by taking the safest course of action. They prefer people who know nothing of the facts, the participants or the issues.
 

MEDICATION ERRORS

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The FDA estimates that medication errors cause at least one death every day and injure about 1.3 million people annually in the U.S.  Adverse drug events cause around 700,000 emergency room visits and about 100,000 hospitalizations every year.  It is estimated that nearly 5% of hospitalized patients will be harmed by medication errors.  Medication errors cause 3.3 million outpatient visits each year.

Clearly, medication errors are a very big problem.  Common causes of medication errors include:
    1.     Lack of appropriate safety systems, policies and procedures;
    2.     Safety systems not monitored, evaluated or updated;
    3.     Not following safety rules, policies and procedures;
    4.     Poorly designed systems or systems that allow medical personnel to avoid the systems;
    5.     Lack of resources to verify medication information;
    6.     Lack of knowledge or training;
    7.     Faulty communication;
    8.     Inattention;
    9.     Environmental issues such as distractions, interruptions and chaotic circumstances;
    10.    Ambiguous directions;
    11.    Illegible handwriting;
    12.    Misinterpreted medical abbreviations; 
    13.    Look alike and sound alike drugs;
    14.    Patients not following instructions;
    15.    Language barriers; and
    16.    Memory lapses.

This list borrowed from an article by Mindy Cohen, a forensic nurse and legal nurse consultant. To this list we can certainly add the disappearance of the neighborhood pharmacy.  Most patients no longer have a relationship of any consequence with their pharmacist, if they have a relationship at all.

To avoid being a victim of medication errors, I suggest these practical steps:

1.     Discuss your medications thoroughly with your doctor.  Understand what you are to take, the proper dosage and times, and the reasons you are taking each medication.

2.     If you are hospitalized, it is always best to have a spouse, family member or friend consult with the staff to make sure that the medications you are given are correct.  This is not always easy because busy hospital staff can give the impression that questions are bothersome, meddling, irritating and out of line.  Nevertheless, patient advocates are helpful.

3.     If you or a loved one are in a nursing home, it is of great importance for a family member or friend to be aware of what medications should be given and to verify that the medications are being given as directed.  If any change in the resident’s condition is noted, it may be due to improper medication. Be vigilant about a resident being over medicated with sedating drugs. 

4.     Become acquainted with your pharmacist.  They are a terrific source of information.

5.     Check all medications and the labels before you take them.  It is not that uncommon for a busy pharmacy to make a mistake.  If you are unsure you have what you are supposed to have, ask questions.  Do not make the assumption that you have been given the correct drug and the proper dosage. 
 

Another Voice on Medicaid Cuts

Ron Payne is the chairman of the Texas Health Care Association board of directors. He also characterizes himself as a lifelong conservative Republican. On 6/16/17, Mr. Payne wrote an editorial piece for the Houston Chronicle concerning the failure of the Texas Legislature to provide adequate Medicaid funding for Texas nursing homes.

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According to Mr. Payne, about 2 of every 3 Texas nursing home residents rely on Medicaid to pay for their care. The reimbursement rate is set by the Legislature and is among the lowest in the nation. The rate, according to Mr. Payne, does not come close to meeting the cost of caring for Medicaid residents by the state’s own estimates. Of course, this means that those not relying on Medicaid have to make up the difference.

The result of chronic under-funding is, Mr. Payne states, “…nursing homes are not able to offer competitive wages,” which makes it “hard to recruit good, quality nurses and nurse assistants, and is why our annual staff turnover statewide averages more than 90%.”

In 2015, the Legislature refused to raise Medicaid rates despite a $7.5 billion surplus.

In the session that just ended, the Legislature refused to allow nursing homes to access federal funds through a program used in 43 other states even though participation would not have expanded Medicaid. In other words, the Legislature knowingly chose to under-fund nursing homes even though it didn’t cost Texas taxpayers. According to Mr. Payne, too many legislators “thought people might accuse them of voting for a “granny tax” and that certain political groups might attack them for not being conservative enough.”

Having represented many families over the years in nursing home negligence and abuse cases, I can assure you that the root causes of most injuries and deaths in nursing homes are inadequate staffing, poor education and training, lack of experience necessary to acquire skill, and lack of supervision. Injury and death are the predictable results of a workforce that turns over at a rate of over 90%

It seems more than a pity that battles over ideological purity should take precedence over care of the elderly.

JUROR BIAS

           The Texas law is clear that one who has a bias or prejudice in favor of or against a party in the case is disqualified to serve as a juror. This seems only fair and comports with our sense of justice. However, the latest scientific research proves beyond any doubt that “all of us have biases that are subconscious, hidden even to ourselves.” This phenomena is discussed in an article by Emily Badger in the October 7, 2016 edition of The New York Times.

            According to Ms. Badger’s article: “Implicit bias is the mind’s way of making uncontrolled and automatic associations between two concepts very quickly. In many forms, implicit bias is a healthy human adaption - it’s among the mental tools that help you mindlessly navigate...” In essence then, biases are mental shortcuts, but implicit bias can also lead us into grave error.

            Having been involved in selecting juries for criminal and civil cases for over 40 years, I can assure you that it is unusual for a prospective juror to admit that he or she has a bias or prejudice of any kind. Most people will only admit a bias or prejudice if the bias or prejudice is of the type that is typically held by all members of the public. For example, everyone will say they have a bias and prejudice against stealing or driving at an unsafe speed, but almost no one will admit in a public setting to having, for example, racial prejudice or a bias against police officers or the military or anything else that is potentially controversial or embarrassing.

            If we have all have biases and prejudices, and if we are reluctant to admit them even if we are aware of them, what can and should we do to ensure that jurors are selected who can be equally fair to all parties?

            Jury selection is far from perfect and almost all juries are selected without the aid of professional jury consultants. Consequently, the best solution is for lawyers and trial judges to encourage prospective jurors to think about the potential issues in depth and speak their minds freely without fear of being embarrassed or humiliated. This takes skilled lawyers, a patient judge, and time. Unfortunately, too many lawyers are not skilled in asking jurors questions that are calculated to reveal bias and prejudice and far too many judges are more concerned with conserving time than in seating the best possible jury.  

            If you are called for jury service, please remember to search your heart and mind about the issues you will be called upon to decide. If you have questions about your ability to be completely fair, speak out, even if you have to ask to speak to the lawyers and trial judge in private. There is no shame in admitting bias or prejudice. There is a great deal of shame in sitting as a juror in a case that you should be disqualified from hearing.

UPDATE ON BABY POWDER LITIGATION

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I previously mentioned in a blog that litigation was ongoing involving the use of baby powder, a product made from the mineral talc, for purposes of feminine hygiene. The allegation is that frequent use of baby powder is linked to ovarian cancer. An overview of the status of that litigation appeared in the Houston Chronicle’s on September 27th, 2016 in an article written by Linda Johnson of the Associated Press.

According to the article, the maker of the powder, Johnson & Johnson, contends there is no scientifically proven link between the product and ovarian cancer and intends to take every case to trial rather than settle. There are over 2,000 cases pending.

On the other hand, lawyers for the claimants continue to believe there is scientifically reliable research establishing a link. Another case went to trial on Monday, September 26, 2016, in St. Louis. This year, a jury in St. Louis found Johnson & Johnson liable to two women and awarded $72,000,000 and $55,000,000.

The legal battle revolves around the question of whether scientific evidence relied upon by the claimants is sufficient to meet the strenuous legal tests now applied to the admissibility of all scientific evidence. 

DISTRACTED DRIVING 2.0

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I saw an interesting digital billboard this past week on I-45 south of Houston. 
The message was: “Don’t text and drive, we can wait, - Carnes Funeral Home.” This dark humor reminds us of the extremely dangerous driving behavior we see everyday, but the problem of distracted driving is actually much worse than you think.

    Here are the facts:

    1) In 2013, 3154 people were killed in motor vehicle crashes involving distracted drivers;

    2) In 2013, approximately 424,000 people were injured in crashes involving distracted driving;

    3) 10% of drivers of all ages under the age of 20 involved in fatal crashes were reported as distracted at the time of the crash;

    4) Drivers in their 20s are 23% of drivers in all fatal crashes, but are 27% of distracted drivers and 38% of the distracted drivers who were using a cell phone in fatal crashes;

    5) 1/3 of all drivers admit to text messaging while driving;

    6) At any given daylight moment, approximately 660,000 drivers are using cell phones;

    7) 5 seconds is the average time your eyes are off the road while texting; 

    8) A quarter of teens respond to a text message once or more every time they drive. 20% of teens and 10% of parents admit that they have extended, multi-message text conversations while driving;

    9) In the U.S., text messages increased from 81 billion in 2005 to 1.8 trillion in 2013;

    10) Highway safety researchers have conclusively proven that cell phone usage - dialing, answering and talking - is as dangerous as driving while legally intoxicated;

    11) Studies conducted by the National Safety Council prove the act of talking, both hands-free and hand-held, to be unreasonably dangerous

    12) Researchers found that dialing a cell phone increases the odds of a safety critical event from 3.51 to 5.93 and the act of reaching for a cell phone to increase odds from 3.74 to 7.5 times.

    
    Needless to say, these facts confirm what our common sense has already told us. Distracted driving is a huge safety problem and it will only get worse as electronic distractions are added to our vehicles.

    Importantly, and for the sake of emphasis, cell phone usage, even hands-free, is a dangerous distraction and should be avoided. 

    Texas is not one of the 45 or 46 other states that make texting and driving illegal.  This is thanks to Governor Perry vetoing bills that were passed by large majorities. Maybe this will change in the next session, but whether the law changes or not, we must change our behavior.

ARE WE READY FOR SELF-DRIVING CARS?

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The future is upon us. Uber Technologies, Tesla, Ford and all of the major vehicle manufacturers say they can and will produce self-driving vehicles. Ford has even promised that its fully self-driving, autonomous vehicle with no pedals and no steering wheel will be on the market within five (5) years. This seems very fast, but it might have happened even sooner if a Tesla semi-autonomous vehicle had not crashed recently killing the driver.

    Self-driving cars may make some sense from a safety standpoint. Traffic fatalities increased 7.7% (35,200) in the last year and we are on course to set a record in 2016. An impediment to early marketing seems to be the National Highway Transportation Safety Administration which must adopt safety standards. This will be an unbelievably complex process that will evolve based on real world experience. 

    What will the transition period look like? Remember  the old newsreels that show scenes of the first cars driving among horseback riders, wagons and carriages? It seems impossible, but I am sure it isn’t.

    Another complex problem will be determing legal liability for property damage, injuries and death. Our law is based upon the bedrock principals of driver responsibility. 94% of car crashes are caused by driver error. Will legislators mandate that a vehicle’s owner and / or driver be held strictly liable for the damages caused by a self-driven vehicle? Will vehicle manufacturers be held strictly liable? After all, if the driver has no input, shouldn’t the manufacturer be responsible? But, you can bet liability insurance companies and vehicle manufacturers won’t like that approach. The alternatives to strict owner / driver or manufacturer accountability are a nightmare. Those alternatives would involve liability being predicated upon proof that the vehicle as designed and/or manufactured and/or marketed was defective, i.e., unreasonably dangerous, as that concept is now defined by existing law governing legal liability for defective products. While that idea might sound acceptable, as a practical matter virtually every car crash case involving an autonomous car would become a product liability case and, therefore, almost always prohibitively expensive to pursue.

    Manufacturers will soon be ready to sell self-driving vehicles no matter how incredible it seems. Will government regulators and state legislators be ready?

LEFT LANE FOR PASSING ONLY

I’m sure you recognize the title. Too many drivers pay no more attention to it than a “Drive Friendly” sign. It is the most disobeyed traffic sign in the United States. I will even bet that most drivers don’t know that it is not just good advice or more than a mere suggestion, it is the law. Texas Transportation Code § 545.051.

Beyond any doubt, those who disobey this law and this traffic sign are engaging in dangerous behavior and they cause other drivers to be angry, frustrated and impatient. Those feelings lead directly to risky driving that causes crashes, injury and death.

If you have driven in other countries, particularly European countries, you will know that driving in a lane reserved for higher speed traffic will immediately provoke flashing lights, honking horns, and obscene gestures. It is conduct that simply won’t be tolerated.

I have never seen nor have I ever heard of a traffic citation being issued for failing to drive in the righthand lane while not passing. For some reason, it just doesn’t happen. That should change.

My further opinion is that the sign should be changed. The current sign is plain white with black lettering. It seems so innocuous that it gives the impression of being advisory rather than a commandment. The sign should be yellow or red and the message should convey a clear order, or even a threat.

Drivers’ education these days is woefully inadequate, but to the extent that it does exist, drivers should be taught that this law is just as important as stopping at a stoplight or a speed limit sign.

If we can change this dangerous and discourteous behavior, we will all be safer and a lot less stressed.

THE TRAGEDY OF 4-WHEELERS

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The death of another local child in a 4-wheeler crash occurred recently. The child lost control, the 4-wheeler flipped, the 4-wheeler landed on the child, and the child died from multiple crush injuries and/or injuries to the head. This type of tragedy happens with alarming regularity.

I can probably count 8 to 10 children, teenagers and adults that I personally know who have been killed or seriously injured in 4-wheeler crashes.

Parents and their children don’t seem to understand how dangerous these machines truly are. Many are inherently unstable due to the way they are designed. They have short and narrow wheelbases and a high center of gravity. When you add speed, a sharp turning radius, and an unsupervised child looking for the same adventure they see in television commercials, you have a recipe for disaster.

These vehicles are not toys. They are big, heavy, very fast, and give the false impression they can be driven safely over virtually any terrain or any object at any speed. And, parents seem to forget they are dealing with children. Children tend to become bored quickly with doing things safely. Children want fun and adventure. In my opinion, you might as well allow a child to play with a loaded gun.
    
3-wheelers were notoriously dangerous. They are no longer manufactured because they were just too dangerous. Adding a fourth wheel helped, but it didn’t solve all the problems. People seem to believe these vehicles are safe because the government doesn’t prohibit the sale of them. Nothing could be further from the truth. 

Please don’t allow your child to become a casualty.  

GOOD NEWS FOR CONSUMERS

On May 5th, 2016 it was announced that the new Federal Consumer Financial Protection Bureau intended to enact a rule that would allow consumers to participate in class-action lawsuits against banks and restrict the use of mandatory arbitration clauses in many financial contracts. There will be a public comment period.

To understand the significance of this proposed rule, it helps to understand the background.

For many years large consumer oriented businesses such as banks, student loan lenders, credit card companies, telecommunications companies, internet providers, power companies, and many, many others have been including in consumer/customer contracts a provision that says any dispute with them must be decided by mandatory arbitration rather than a lawsuit filed in a court of law. These mandatory arbitration clauses have become ubiquitous. They are even now commonly seen in nursing home contracts and some doctors are using them. Federal and state courts have almost uniformly upheld these mandatory arbitration provisions. These legal victories emboldened big businesses to add to the mandatory arbitration provision a clause which prohibited consumers from joining together in a class action case. Together, these contractual provisions have had the effect of virtually stripping consumers of any meaningful recourse against banks that commit wrongful acts. Here’s how it works in a hypothetical example.

Let’s assume you sign the typical contract with a bank or a credit card company. You are then charged fees that you don’t believe are proper. Your complaint is about a few hundred dollars or, for that matter, even a few thousand dollars. You make your complaint to the company and don’t get satisfaction. You then consult a lawyer. The lawyer points out there is a mandatory arbitration clause and the fact that the arbitration must take place in Dallas, Houston, New York City, or somewhere else you don’t want to go. Also, the rules of the arbitration, the law that will apply and the selection of the arbitrator will be controlled by the bank and you won’t be able to recover your attorney’s fees and costs even if you win. This is likely the first time you ever noticed the arbitration clause, but even if you had seen it, it would make no difference because all companies in the same business have a contract with the same provision. You had no real choice. Your decision is obvious. You won’t commit financial suicide by hiring a lawyer to make a claim in arbitration. You will just have to let it go. But, what if you and your lawyer learn that the company is committing this same wrong against customers all over the country? Can all of you can band together to make a claim that is large enough to justify pursuing the company in arbitration or in court? No, you can’t - there is also that provision that says no class actions.

What is the result? Big companies get away with stealing enormous sums of money a little at a time. They have done this by keeping consumers out of courts and by dividing and conquering.

The financial services industry spent millions and millions in lobbying trying to keep the Consumer Financial Protection Bureau from even coming into existence because they don’t want oversight. Now that it has, they will fight this rule with all they have.  They already have an important ally, Jeb Hensarling, Republican of Texas, who is the Chairman of the House Financial Services Committee. He said the rule is “a big wet kiss to trial attorneys.” You know a politician’s arguments are weak when he has to justify his opposition by playing the evil, greedy trial lawyers card. It is very hard to justify on legitimate grounds denying consumers access to the best judicial system in the world while banks and credit card companies flood the dockets of our courts with collection suits against their customers. As folks used to say: “What’s good for the goose is good for the gander.”

Representative Hensarling and many other politicians seem to be tone deaf. The rise of Donald Trump and Bernie Sanders prove that the people are fed up with being taken advantage of by big business and the cozy relationship between business interests and politicians. Maybe this new rule is a fresh start in a different direction. 

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GREED HAS NO BOUNDS

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The NFL has agreed to a settlement with its former players who suffered cognitive impairment as a result of repetitive brain trauma. Depending upon the degree of impairment that can be proven, individual players will receive payouts that could reach into the millions. Many of the players are suffering from dementia and are down on their luck financially.

According to a story in The New York Times on May 9, 2016, at least six predatory lenders see these needy brain injured players as an opportunity to make money. The lenders are approaching players offering to lend money in advance of their receipt of money from the settlement. The catch is that the interest rates are 40% or higher! These rates make payday loan sharks seem tame.

The companies defend what they are doing by saying they are taking a big risk and providing a service to those who need money now and can’t wait.

On the other hand, as said by attorney Richard Adler, “It’s predatory, it’s one-sided and preys on people with brain injuries. You’re lending to someone who may not have the full legal capacity to understand what they are signing.”

Broke, desperate, and brain damaged. No legitimate lender thinks that is the profile of a good loan risk.

I should add that lenders utilizing this business model are not something new. They have been around for quite some time. You see their advertisements often on TV offering to make advances on settlements and offering to buy structured settlements. Another side of this shady industry are those companies offering to lend money to lawyers.

It is all very ugly and the public needs protection from predatory lending practices. However, the United States Congress and state legislators seem to have no appetite to rein in these vultures.

THE UNITED STATES SUPREME COURT VACANCY

    Much has been written and said about filling the Supreme Court’s vacancy caused by the death of Justice Antonin Scalia.
    President Obama vows that he will do his duty under the Constitution by nominating  a qualified candidate to fill the vacancy. Republican Senate Majority Leader, Mitch McConnell, vows he will do his duty to his political party and block any nomination President Obama makes without a confirmation hearing. The public should consider whether an elected official has a greater duty to fulfill his obligation under the Constitution (as he took an oath to do) or do what his political party demands, but that is just an esoteric debate that will have no impact whatsoever on the decision that will be made by Republicans.
    Please recall that Senator McConnell said following President Obama’s first election that it would be his party’s agenda to make sure that President Obama was a one-term President. And, that is exactly what he and his party have done ever since. Therefore, when McConnell says no nominee, regardless of qualifications, will be confirmed, you should take him at his word. If his own words and his party’s obstructionism for seven (7) years isn’t enough, just consider the political weight of every Republican Presidential candidate saying the Senate has a duty not to confirm any nominee. No Senator will dare incur the wrath of his party.
    One aspect of this stalemate has not been sufficiently considered and that is the terrible price to be paid by a potential nominee.
    President Obama will nominate someone. That person’s credentials will be slammed by Republicans because they will believe it is more palatable to the public for them to  oppose a nominee on the basis of qualifications rather than partisan politics. Once the nominee is publicly bashed for months on end in the media, that nominee will have no chance of being confirmed at a later date regardless of the outcome of the election. As a practical matter, whoever consents to being nominated is consenting to be a sacrificial lamb. That person’s ambition to be a United States Supreme Court Justice will be at an end. It is a high price to ask of anyone. I am certain the wily Mitch McConnell knew just that when he made his promise.

Is the Game Rigged?

This is the question being asked in both parties this political season. It is being asked in different ways and for different reasons by each party, but this question is paramount.  

    The Democrats are focused on income and opportunity inequality brought about by unfairness imbedded in our law, economy and society. They are also virulently against the flow of unlimited “dark money” into the political process by virtue of the U. S. Supreme Court’s decision in the Citizen’s United case.  Republicans, who are now also beginning to voice concerns about income equality, are incredibly angry about  “establishment” politics (the “Washington Cartel”); entrenched special interests; bank bailouts; job loss brought about by what they see as bad trade agreements; fear of economic damage and loss of personal security they attribute to illegal immigrants; and;  in general, what they see as the loss of the society they equate with the American Dream. 

    At the heart of all the discontent in both parties is the firm belief that our government is rigged against us by insiders. 

    The voters are not wrong to feel this way. In fact, they are almost entirely correct. 

    The fact of the matter in Washington and Austin is that special interests and their lobbyists dominate the legislative arena. Special interests and lobbyists don’t just voice their concerns to the politicians and then allow the legislators to draft the bills they (the legislators) think are appropriate. Those seeking legislative action first identify all those in the state legislature or U.S. Congress they believe can get them what they want. They then contribute enough money to at least get them in the door for a discussion. Money buys access. When that meeting occurs, they not only discuss their issues, they have with them a proposed bill. They do not leave it up to the politician and his staff to draft legislation. They present a complete, ready-made, canned package and a legislative strategy. If they believe committee hearings will be necessary, they will even furnish the witnesses who will testify in favor of their bill. In other words, the special interests set the agenda and the laws that are ultimately passed are almost without exception some version of what they put in front of their friendly legislators in the beginning. If your image of  democracy is of a public minded politician like  Washington, Jefferson and Madison slaving to write legislation and worrying about whether it serves our best interests, you will be sorely disappointed in the reality. I’ve heard it said that making laws is much like making blood sausage. It’s not pretty and not for the faint of heart. I submit it is even worse when you consider that every single ingredient is furnished by someone who has something to gain or something to protect.  

    The reality is that special interests and lobbyists, people not accountable to the voters, do decide what legislation is considered, how that legislation is worded and a strategy for getting it passed.
 
    So, is the game rigged? Most voters and taxpayers would say “yes”.    

The Attorney General's Bad Legal Advice

It was reported on February 6, 2016, that a Mesquite, Texas Justice of Peace, Bill Metzger, had announced his refusal to perform same-sex marriages. He based his refusal on a legal opinion issued by Texas Attorney General, Ken Paxton, to Texas government officials shortly after the U.S. Supreme Court ruled same-sex marriages were lawful. You might recall that Paxton, who has been indicted for fraud and violations of security law, issued a politically motivated legal opinion to the effect that state officials could refuse to perform their governmental functions if to do so would violate a sincerely held religious belief. Based on this so-called legal opinion, a few county clerks  refused to issue marriage licenses to same-sex couples. Consequently, there was at least one lawsuit filed in Texas wherein the same-sex couples prevailed.  You may also recall the clerk in Kentucky that refused to issue a marriage license, lost her case, and was ultimately jailed for failure to comply with a court order. Nevertheless, Judge Metzger wanted to make a political statement or a religious statement. I am sure a suit will be filed against him and he is certain to lose.

    As a legal issue, this one is not even close. A governmental official takes an oath to faithfully perform the duties of the office. Government officials cannot decide for themselves which duties they will not perform based on personal religious beliefs. Metzger’s choice is to do his job or resign. 

    It is unfortunate that Paxton has not withdrawn and high-ranking Republican politicians have not spoken out against this faulty legal opinion. Governor Greg Abbott, a former justice on the Texas Supreme Court, has remained silent. Ted Cruz, who claims to be a legal scholar, and Mike Huckabee have actually encouraged officials to disregard the Supreme Court’s opinion. By doing so they do a disservice to public officials who are ignorant of the law, the general public and taxpayers.

    Roger Williams, framer of the Charter of Rhode Island, is considered to be the earliest proponent of religious liberty and tolerance in the New World. Based upon his thought and writing, Thomas Jefferson and James Madison authored the Declaration of Independence and the Bill of Rights of the U.S. Constitution.

    Here is what Williams had to say about the proper relationship between Church and state:

    “The civil sword may make a nation of hypocrites, and anti-Christians, but not one Christian.” “Forcing of conscience is a soul rape.” Persecution for conscience hath been the lancet that layeth the blood of kings and kingdoms.” “Man hath no power to make laws to bind conscience.” “The civil commonwealth and the spiritual commonwealth, the church, not inconsistent, though independent, the one on the other.” “The civil magistrate owes to false worshipers, (1) permission, (2) protection.” (emphasis added) “No person within the said colony, at any time hereafter, shall be in any wise molested, punished, disquieted, or called in question for any differences in opinion, in matters of religion, who do not actually disturb the civil peace of our said colony...”
                
    The wisdom of Roger Williams and the doctrine of separation of church and state is  inarguable. It protects the state and, just as importantly, the Church.

The Price of Safety

The Houston Chronicle ran a front page story on January 28, 2016 regarding the fact that nothing has been done to correct the many systemic failures that made possible the explosion of a fertilizer storage facility in West, Texas on April 17, 2013. Many lives were lost and there was a property damage loss estimated to be in the range of $230-250 million. One would think that such a devastating loss of life and property would be enough to spur serious action. But, it hasn’t been. Our legislature has done almost nothing. 

    According to the article, there have been more than 400 separate chemical accidents across the country since the West explosion. Almost all Texas fertilizer plants are within one quarter mile of a residence.

    The federal Chemical Safety Board is issuing a 265 page final report this week outlining the failures that led to the West explosion. One would think that our legislators would use that report as a blueprint for action, but that is unlikely. Our legislature is still stuck in the mindset that safety rules and regulations are too costly and should be voluntary. This is an age-old political and philosophical debate that goes back to the late 1800s and early 1900s when factory workers, railroad workers , and miners were considered by rich capitalists to be expendable. Almost every safety rule and regulation we have today was created over the objection of business interests claiming they were unnecessary, too expensive, and would put them out of business. It seems that people and their safety should come first. If an industry cannot be carried out profitably and safely, maybe that industry shouldn’t exist in its present form. 

Landowner's Rights

In Texas, perhaps the reddest of all states, we like to talk a lot about the sanctity of property rights. This is a favorite of all our politicians because it is a safe hot-button issue guaranteed to arouse applause and votes. But, our reality is far different. 

    Texas has more miles of pipelines than any other state by a wide margin. One would think that in a state such as ours we would have developed a comprehensive set of rules, regulations, and laws that protect landowners from abuse. This is not so.

    The Texas Railroad Commission regulates pipelines in Texas. Their regulations: 

    1) Do not require a permit to build an intrastate pipeline;

    2) Do not require public hearings, public comment, or environmental studies;

    3) Do not allow for challenge of the routing of a pipeline;

    4) Do not require proof of or allow debate concerning the public interest or public good.

    In short, if a pipeline company wants to come across your property, you are thrown to the wolves.

    It is high time the politicians actually did something to protect landowners from the abuses of pipeline companies. 
   

Good News In Medical Malpractice

I have often written about the absurd, nonsensical decisions of the Texas Supreme Court in regard to what is and what is not a “health care liability claim”. In the past, the Court has gone way out of its way to define virtually anything and everything involving a hospital, doctor’s office or a health care provider as a “health care liability claim” This is so because giving a claim that label invokes the legal requirement that the claimant must meet multiple onerous procedural requirements including, most importantly, the requirement of filing an “Expert Report”. If the expert report requirement is not satisfied, then the claimant’s case is dismissed. In other words, by labeling a claim something it truly isn’t, the Court can place many obstacles in the path of a claimant and give the health care provider more opportunities to defeat the claim. Since the effective date of the current medical malpractice law (September 1, 2003), the decisions of the Court have reached such ridiculous extremes that lawyers joked sardonically about how biased the Court had become in that regard.

At long last, the Court has issued an opinion that may indicate a turning point.

The case involves a claim against a hospital by a visitor who fell in the hospital lobby. As had become the custom among all health care liability attorneys, the hospital’s attorneys contended that the visitor’s claim met the definition of a “health care liability claim” and that the claimant had to file an expert report written by experts, including at least one doctor, detailing all of the elements necessary to prove a medical malpractice claim. Since the claimant had not filed an expert report, they contended the case should be dismissed. The Trial Court disagreed. The hospital appealed. The Court of Appeals reversed the Trial Court and ordered a dismissal of the case. The claimant appealed to the Texas Supreme Court. Importantly, the hospital was relying upon precedent established by the Texas Supreme Court in an earlier similar case. I feel sure the hospital’s attorneys felt confident the hospital would win based on this precedent. Nevertheless, the Texas Supreme Court ruled for the visitor and against the hospital. In order to do this, the Court had to distinguish this case from its earlier cases and ultimately concluded that “the record before us does not reflect a substantive nexus between the safety standards… and the hospital’s provision of health care.”

Unfortunately, the method by which the Court reached its decision leaves the door open for unfortunate future decisions, but the case may signal that the Court is retreating from the absurdity of some of its prior decisions and will take a more common sense approach in the future.

The case is Reddic v. E. Tex. Med Ctr, 2015 Tex, Lexis 1006, October 30, 2015.

Photo credit: cousine4everkis via Foter.com / CC BY-ND

More Bad News for Takata

    Ford has announced it will no longer use Takata air bag inflators in its vehicles. This follows similar action by Honda, Toyota, and Nissan.

    Takata inflator’s have been proven to be dangerously defective. Numerous deaths and injuries have been caused by its inflator system which can hurl shrapnel at vehicle occupants.   

Ford Recall

Ford is recalling 452,000 cars due to gas tanks that can potentially leak fuel. The recall affects 2010 and 2011 Ford Fusion and Mercury Milan sedans built in Mexico from July, 2008 through March, 2011. 

Honda Drops Takata Airbags

Honda Motor Company recently dropped Takata as the supplier of airbags for its

cars. This came on the heels of the National Highway Traffic Safety Administration

fining Takata $70 million for failing to disclose defects in its airbags. According to

NHTSA, Takata manipulated its test data and “Takata produced testing reports that 

contained selective, incomplete, or inaccurate data.”

    Eight deaths and over 100 injuries have been linked to defective airbags.

    According to Honda, it too “identified other apparent instances of misleading or 

inaccurate test data that were provided to Honda over time.” Obviously, Honda is positioning itself to shift blame to Takata in lawsuits and regulatory matters.

    To some degree, these events remind me of an episode of “Law And Order” 

where the suspects start making deals to save their own skin.