The Vanishing Civil Jury Trial and Why You Should Care

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THEY ARE LYING...

when the phrase "THE COURTS ARE OVERBURDENED WITH FRIVOLOUS LAWSUITS" is used to justify anything other than a civil jury trial.

This month an excellent article by Robert T. Eglet appeared in the official publication of the American Board of Trial Advocates. Mr. Eglet researched the statistical facts regarding the frequency of civil jury trials in the United States. The facts are surprising and alarming.

In federal court, less than 1% of all civil cases are resolved by a jury trial and that figure is dropping. In 1940, it was 15.2%.

In state courts in Texas, only 0.4% of civil cases are resolved by jury trial.

The percentage of tort cases that go to civil jury trial in state and federal courts is even lower.

There are many reasons for the vanishing civil jury trial. Those reasons include alternative dispute resolution, especially including mandatory arbitration clauses in contracts; high litigation costs and extensive pre-trial discovery; a growing judicial philosophy that  discourages trying cases; the prevalent use of pre-trial summary judgments which trial judges liberally grant to dismiss cases and manage their caseloads; the doctrine of federal preemption which strips states of jurisdiction over many, many disputes which were traditionally resolved in state court; and, so-called “tort reform”.

If a politician or special interest group says that something they want is justified because the courts are overburdened with frivolous lawsuits, they are lying. Not just shading the truth or fudging, but lying.  This is not a matter of opinion. The facts are the facts.

There are relatively few lawyers today who have substantial experience in actually trying cases to a jury and that number is shrinking quickly. This is a sad trend that has important consequences for the client and the general public. How can your lawyer realistically evaluate your case and advise you if he or she doesn’t have a body of actual trial experience to rely upon? How can your lawyer protect you in a trial if he or she hasn’t been in trials? How can lawyers learn the art of trial advocacy and honor the tradition of trial advocacy without opportunities?  

The 7th Amendment to the United States Constitution guarantees the right to a jury trial in civil cases. Thomas Jefferson observed that trial by jury was “the only anchor ever yet imagined by man which a government can be held to the principles of its constitution.” Former Chief Justice William Rehnquist said that trial by jury in civil cases was a bulwark against tyranny and corruption and that “juries represent the layman’s common sense and thus keep administration of law in accord with the wishes and feelings of the community.” Clearly, our founders and great jurists have recognized the value of jury trials. I always wonder what they would say if they could see how far we have strayed?

 

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The Never Ending Assault on Your Legal Rights

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If your employer can force you to give up your right to a Court of Law...

WHAT OTHER RIGHTS CAN YOUR EMPLOYER COERCE YOU INTO GIVING UP?

On October 2nd, 2017, the U.S. Supreme Court heard arguments in 3 cases having to do with the enforceability of employment contracts which contain clauses mandating that all employment disputes be settled by arbitration and forbidding employees from joining together in class action cases. Obviously, businesses use these contracts as a part of a strategy intended to divide and conquer and to force claims to be decided in private by hand-picked arbitrators (rather than a judge and jury) under rules that are different than a judicial proceeding.

 

I have previously written extensively about similar coercive contract provisions that appear in consumer contracts such as banking, credit cards, rental cars, cell phones and even nursing homes.

 

The legal history is that the U.S. Supreme Court has upheld by a narrow margin the enforceability of provisions of this type in consumer contracts. Therefore, it seems highly likely that the U.S. Supreme Court will rule in a similar manner now that Justice Neil Gorsuch, Trump=s appointee who has a history of being business friendly, has joined the Court.

 

The argument made by employers is that everyone should be free to enter into contracts, even if the contract involves giving up a constitutional right. However, as every employee will instantly recognize, in an employment situation the employer and employee do not have equal bargaining power and, in almost all situations, insisting on your rights will come at the cost of your job.

 

If the U.S. Supreme Court sides with business, it will mean that your employer can force you to sign a contract of employment that gives away your right to go to Court and your right to be a part of a class action case as a precondition of your continued employment. If your employer can force you to give up your right to take your claim to a court of law, what other rights can your employer coerce you into giving up?

 

This is a travesty if it happens and it probably will.

 

Rights lost are never regained short of an overwhelming shift in the political landscape.

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The Statute of Limitations in Medical Malpractice Cases in Texas

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In Texas, as a result of changes in the law that occurred in 2003, the statute of limitations in medical negligence cases is a strict 2 years which begins to run from the date of the negligence, not the date you realize you are injured or the date you realize a healthcare provider=s negligence caused your injury.  There are a few rare exceptions, but the exceptions are so tricky that a useful discussion of them is not possible within the scope of this blog.

 

The thing to remember is that if you have a suspicion that you may be the victim of medical malpractice, you need to act immediately and not wait. Unfortunately, doctors and hospitals rarely admit their mistakes to the patient. Even doctors giving a second opinion or who are involved only in your subsequent care will rarely criticize another doctor or a hospital. In most instances, you will be forced to consult a qualified lawyer who specializes in medical malpractice cases to get at the truth. This investigation may take time and involve having experts review the medial records. This process takes time.

 

When I explain the law to clients, they often can=t believe the law could be so unfair and some even think I must be wrong. What they fail to grasp is that the law was written to protect doctors, hospitals and all healthcare providers from claims. If you understand the purpose of the law, you will also understand that "fairness" to patients was never a consideration.

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Be Wary of Flood-Damaged Cars

Flood-Damaged Cars...

some will make their way to market and sold to unsuspecting consumers.

Hundreds of thousands of cars were damaged by our recent hurricane and floods. Insurance companies are processing claims and, in many cases, declaring the cars to be “totaled”. When this happens, insurance companies take possession of the cars and their titles. Obviously, insurance companies want to recoup as much of their loss as they can. This means that some cars will find their way to market and many cars will be disassembled for parts.

 

Experts agree that flood-damaged cars and parts should be avoided. 

 

On 9/22/17, the New York Times ran a very informative story about how to spot telltale signs of flood damage and how to acquire title information that will help you identify a flood-damaged vehicle. The article also describes the methods used by unscrupulous sellers to “wash” car titles to hide the fact they were totaled in a flood. 

 

I recommend this article to you as well as a similar article appearing in Consumer Reports.

 

Please remember that Texas is not a consumer friendly state. It is very difficult to hold a seller liable for a defective car that was sold “As Is-No Warranty.” All buyers should beware and pay for a detailed inspection by a professional auto mechanic.

 

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News On Driverless Cars

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Vehicle Autopilot System...

Working as designed - but not ready for the real world we live in.

Sometimes the news cycle has a way of juxtaposing stories in such a way that interesting questions are raised.

 

On 9/13/17, the National Transportation Safety Board issued its report on the 2016 fatal crash involving a 40 year old man driving a Tesla car that was being operated by its experimental Autopilot system. The Board found, among other things, that the Autopilot contributed to the crash because the software permitted the driver’s “prolonged disengagement from the driving task” and allowed the driver to use the system on the wrong type of road. According to the Chairman, “In this crash, Tesla’s system worked as designed, but it was designed to perform limited tasks in a limited range of environments.” Or, said another way, the system is not ready for the real world we live in.

 

On the same day, Elaine Chao, Trump’s appointee to head the United States Department of Transportation and the wife of United States Senate Majority Leader Mitch McConnell, gave a speech wherein she announced that government policy will be to ask automakers and tech companies to voluntarily submit safety assessments to her agency, but that they don’t have to do it. She also said that states are being advised to use a light regulatory hand.

 

It seems exceedingly strange that the government is taking such a cavalier, hands-off (pun intended) approach to the safety of Americans. Whatever happened to that old “trust but verify” slogan?

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The Texas Legislature is Never Too Busy to Help Insurance Companies

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Katrina, Ike, & Sandy...

Litigation arising from these storms has been on going for years due to insurance companies denying legitimate claims and offering less than they should pay.

The Texas Legislature just spent an entire regular session and one special session focused on such “emergency” measures as where transgender people can pee. They intentionally did nothing about school finance reform, property taxes, chemical security and safety, environmental degradation, water policy, and a whole host of other complex and urgent problems. Having ignored these problems, one would have to conclude the legislature is either not up to the task or likes things the way they are.

Then along came Hurricane Harvey, which may or may not be the worst storm of a lifetime.

 

Harvey’s damage to property is beyond comprehension, not to mention the loss of lives, the injuries, the disruption of millions of people’s everyday existence, the closing of businesses, the loss of paychecks, and the direct and indirect economic consequences that will go on for years to come.  

 

As people begin to get back to their homes and businesses and assess the damage, they will begin the process of making insurance claims. Most people will be disappointed to learn they are not covered for flood damage unless they are part of the lucky 15% who have a federal flood policy. The insurance industry will be sending what are called “storm teams” to the Gulf Coast. These insurance adjusters will be overwhelmed with claims and their aim will be to settle claims as cheaply as possible or deny claims altogether if a policy exclusion can be found. If history is a teacher, we will see insurance companies denying legitimate claims and offering less than what they should pay. This was true in Katrina, Ike and Sandy. Litigation arising out of those storms has been ongoing for years.

 

Just in time for Harvey is Senate Bill 10. This statute takes effect September 1st. It received little public notice. This statute, requested by the insurance industry, reduces the liability of insurance companies for unlawful claims settlement practices. The statute does this by amending the Texas Insurance Code and the Texas Deceptive Trade Practices Act. The new law limits the interest, penalties, damages and attorneys’ fees that can be recovered by consumers who are harmed by the unlawful conduct of insurance companies. There are also procedural changes and a prohibition against filing a lawsuit under the Insurance Code and the Deceptive Trade Practices Act simultaneously. This means an aggrieved consumer will have to make an election as to which statute to utilize and that decision could have a big impact upon the outcome of a case. Henceforth, a consumer who prevails in a suit against an insurance company will only be able to recover their attorneys’ fees as computed on an hourly fee basis. This is a major change in the law. Under prior law that existed seemingly forever, an insurance consumer could recover their “reasonable and necessary” attorneys’ fees if they won their case. What was reasonable and necessary was determined by the jury.

 

Lawsuits involving insurance coverage disputes are usually undertaken by lawyers on a contingent fee basis. This is true because most individuals do not have the financial resources to employ a lawyer on an hourly fee basis. When a lawyer undertakes representation on an hourly fee basis, the lawyer typically requires a retainer up-front, keeps track of the hours spent, bills monthly, expects to be paid monthly, and the client pays all the litigation expenses as they are incurred, which usually include high fees for expert witnesses and much, much more. As an alternative, the contingent fee contract allows the client to pay an attorney a percentage of what they get, if anything, in the future. If the case is lost, the lawyer gets nothing and loses his expenses. If the case is won, the attorney gets the percentage agreed upon. By changing the law to limit the recovery of attorneys’ fees to the amount the attorney would have been paid had he been billing the client and being paid by the client on a hourly fee basis from start to finish, many people who are mistreated by their insurance companies will not be able to hire a lawyer to help them. Of course, this is exactly the result the insurance industry wanted. They want to make it so difficult for consumers to get legal help that they will have to live with whatever decision their insurance company makes. This law is a cynical move to disarm insurance consumers in what was already not a fair fight.

 

I wonder if the insurance companies said “Thank you” or if they will wait until after their rate hikes are approved?  

 

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Mandatory Arbitration - "It Just Ain't Right."

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Mandatory Arbitration Clauses... 

Hidden within virtually every contract you sign with a bank, credit card company, cell phone service providers, etc....

On August 22, 2017, the New York Times published an editorial by Richard Cordray, Director of the Consumer Financial Protection Bureau. This federal agency was created during the Obama administration. Its mission is to combat the abuses of the financial industry that began to come to light during the financial crisis of 2008.


The financial industry fought tooth and nail to keep this agency from being born. Now, the financial industry is fighting just as hard to roll back every rule and regulation promulgated by the agency.

 

 Among the rules enacted by the Consumer Financial  Protection Bureau is a rule that would prohibit mandatory arbitration clauses in contracts for bank accounts and credit cards and allow consumers to join together in class action lawsuits against banks and credit card companies.


I have written many times about the insidious evil of mandatory arbitration clauses hidden within virtually every contract you sign with a bank, credit card company or a provider of consumer services such as cellphones. These provisions prohibit consumers from taking their complaints to state or federal court and they also prohibit consumers from joining together in a class action case. These provisions are ubiquitous, i.e., they are so prevalent that you don’t really have a choice. As a practical matter, if you sign the contract, your fundamental constitutional right to take your case to court is being taken from you and most consumers are unaware of it.


Needless to say, the financial industry loves these contracts. By forcing cases into arbitration and prohibiting class actions, they are able to avoid liability because a single consumer cannot economically justify becoming involved in an expensive arbitration, usually at a distant location, all alone. This amounts to a virtual license to steal small amounts from many, many consumers. As Cordray quotes one judge as saying, “only a lunatic or a fanatic sues for $30.”

Mr. Cordray cites the recent example of the Wells Fargo fraudulent, secret scheme of  opening up multiple bank accounts and credit card accounts for its customers without their knowledge or consent. Many of these customers were harmed by fees and lowered credit scores. Nevertheless, because of mandatory arbitration clauses and anti-class action clauses, Wells Fargo probably will not have to answer to its customers in a court of law. This is an absurd result.

The financial industry is not taking these rules lying down. Their lobbyists went straight to work and they were rewarded by legislation which recently passed the Republican controlled U.S. House of Representatives which will overturn the rule.

While corporations and their political forces take away your rights by saying mandatory arbitration saves precious judicial resources, time, money, etc., what do they do when they have a legal complaint against a customer or another business? They file suit in a court of law and, on occasion, they join forces in a class action. Every single day banks, credit card companies and other corporations file thousands upon thousands of suits against their customers rather than ask for arbitration.

There’s truth in the old saying: “What’s good for the goose is good for the gander.”  This nonsense has to be stopped because “it just ain’t right.”

Photo credit: Foter.com

If All Else Fails – Blame the Lawyers

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Exxon Mobil 

Did they intentionally mislead the public

about climate change?

On 8/24/17 it was reported in most major newspapers that Harvard University researchers had issued a peer-reviewed article in the Journal of Environmental Research Letters which concluded that Exxon Mobil had spent the last 40 years misleading the public concerning its own concerns about man-made global warming.

 

The researchers are not climate scientists. Rather, they are experts in researching scientific history. They reviewed 187 climate change public communications issued by Exxon Mobil between 1977 and 2014 on the one hand and Exxon Mobil’s internal scientific documents on the other.  They concluded that "Exxon Mobil contributed to advancing climate science – by way of its scientists’ academic publications – while simultaneously promoting doubt about it in its advertorials.” “Given this discrepancy, we conclude that Exxon Mobile misled the public.” In other words, Exxon Mobil knew and used the scientific facts for its own internal business purposes such as strategic planning, but lied to the public to protect itself from federal and state regulators, investors and public opinion.

 

It is also important to remember that Exxon Mobil is involved now in a very serious investigation in New York focused on whether it misled its investors (stockholders) about the risks of climate change.

 

The researchers found that 83% of its peer-reviewed scientific papers and 80% of its internal documents acknowledge climate change is real and human caused, but that 81% of its advertorials, i.e., corporate statements of opinion intended for public consumption, expressed doubt over the issue.

 

Exxon Mobil responded by saying: “The study was paid for, written and published by activists… It is inaccurate and preposterous. Rather than proposing solutions to address the risk of climate changes, these activists, along with trial lawyers, have acknowledged a goal of extracting money from our shareholders and attacking the company’s reputation.”

 

Doesn’t this remind you of the tobacco companies denying the link between smoking tobacco and cancer?

 

You know a company is in real trouble when their best defense is to blame it on those doggone “activists” and their greedy trial lawyers. It is a strategy that reminds me of what a wise old lawyer once said to a young lawyer: “If you have the facts on your side, beat on the facts. If you have the law on your side; beat on the law. If you don’t have the facts or the law on your side, just beat on the table.”

Exxon Mobil is beating on the table.

 

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Another Baby Powder Verdict

This past week another jury, this time in California, found that Johnson & Johnson baby powder was responsible for causing a lady’s ovarian cancer. The verdict was for $417 million dollars. This verdict follows a Missouri verdict for $110 million dollars and two other Missouri verdicts for $55 million dollars and $72 million dollars.

The facts in the California case were that the 63 year old Plaintiff had used the baby powder for feminine hygiene purposes for decades.

Photo credit: Au Kirk via Foter.com / CC BY

Did Johnson & Johnson know the risks all along?

For decades, baby powder has been used for  feminine hygiene purposes. 

The evidence in the case included medical studies dating back to 1971 which linked talc, the naturally occurring clay mineral used to make the powder, to ovarian and cervical tumors.

Johnson & Johnson has appealed all of the verdicts and says it will continue to defend all of the thousands of cases filed against it.

Scientists have long hypothesized that talc might lead to cancer because the crystals can move up the genitourinary tract into the peritoneal cavity, where the ovaries are, and may set off inflammation, which is believed to play an important role in the development of ovarian cancer.

In prior blogs I have mentioned that some judges have ruled that the scientific evidence linking talc to cancer is not strong enough to allow cases to proceed to jury trial. However, the trend is now clear that whenever juries are allowed to hear all the scientific evidence from both sides, they believe there is a strong link and find for the cancer victim.

Furthermore, the verdicts have been exceedingly large. The amounts of the verdicts reflect sympathy for those dying with cancer and anger with Johnson & Johnson. This means to me that juries are hearing evidence to the effect that Johnson & Johnson has known of the risks for a very long time and consciously failed to warn its customers.

Photo credit: Au Kirk via Foter.com / CC BY

WHO IS AN IDEAL JUROR?

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

Photo credit: Foter.com

Photo credit: Foter.com

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.

Photo credit: Foter.com

Photo credit: Foter.com

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

Photo credit: Au Kirk via Foter.com / CC BY

Photo credit: Au Kirk via Foter.com / CC BY

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

Photo credit: IntelFreePress via Foter.com / CC BY-SA

Photo credit: IntelFreePress via Foter.com / CC BY-SA

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?

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

                                      Photo credit: Phil Scoville via Foter.com / CC BY

                                      Photo credit: Phil Scoville via Foter.com / CC BY

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. 

 

Photo Credit: ThatMattWade via Foter.com/CC-BY_SA

GREED HAS NO BOUNDS

Photo credit: Marco Arment via Foter.com / CC BY

Photo credit: Marco Arment via Foter.com / CC BY

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.