“Pot” Luck

As though you needed any more reasons for forbidding use of marijuana in your home, . . .

Recently, the Erie County Court of Common Pleas ruled against a social host–son of a homeowner, in plain English–who permitted marijuana to be consumed in his house by a person who then negligently caused a serious auto accident.  The jury determined that the plaintiff’s injuries were so serious that the verdict exceeded the defendant-driver’s insurance coverage, and that the homeowner was responsible for the excess, on the theory that the homeowner’s minor child permitted the defendant-driver to consume marijuana in the house, a crime, and that permitting a criminal act which intoxicated the driver was no different than permitting a minor-driver to illegally consume alcohol on the premises before getting into his car.

The Court rejected the contention that because the defendant-driver and the social host were both minors, the case should be treated as an underage-drinking case, where there would be no liability on the social host because both he and the defendant-driver were underage.  The Court held that, unlike with underage drinking, marijuana use is illegal regardless of age, and therefore the social host cannot use his own minority as a defense.  The Court held that the social host’s parents’ homeowners policy had to pay for the excess verdict.  And it would be no defense to the parents that the marijuana smoking was done out in the garage, where they had no knowledge of it, so long as their child, the social host, knew about it.

If you have any questions about this or any other matter please give me a call at 610-565-9800..  If you can’t call during regular hours, my home phone number remains 610-565-7712.

Marijuana Is No Joke

I recently heard someone making a joking allusion to an acquaintance who was “growing marijuana in her garden.”  In the ‘70’s, possession of marijuana, while always illegal, was not viewed very seriously, and possession of under 30 grams of marijuana could even be prosecuted as a summary offense–similar to a traffic ticket.  Growing marijuana in a garden, or on public land, used to be a humorous sign of an anti-establishment attitude, but little more.

Today things are different. Simple possession of marijuana is now punishable by a sentence of one year.  Possession of any more than a minimal amount can be viewed as possession with intent to deliver, an offense punishable by five years’ imprisonment. Cultivating even a single marijuana plant can warrant prosecution of the cultivator as a drug dealer.  Multiple plants may even cause the DEA (Drug Enforcement Administration) to ask the U.S. attorney to prosecute federally.

Many people think that because marijuana contains no nicotine, it’s safe to smoke.  Nicotine is addictive, but the carcinogenic substance in cigarettes is tar, not nicotine, and tar is present in marijuana smoke in even greater concentrations than it is in cigarettes.  In short, marijuana can ruin lives in many ways.  We should all be on the alert to discourage its use, and certainly its cultivation, especially by youths who may not know any better.

If you have any questions about this or any other matter please give me a call at 610-565-9800..  If you can’t call during regular hours, my home phone number remains 610-565-7712.

Electronically-stored Information

Every April I organize and teach a seminar for other lawyers on E-Discovery: the process of discovering facts important to a lawsuit by examining the other party’s employees’ emails to each other, which frequently reveal corporate knowledge of product defects or other problems relevant to the lawsuit.  As we move closer to a “paperless society,” in which all important information is recorded on computers instead of paper documents, this source of information is becoming more important, especially because people are so much more candid with each other in emails, being under the mistaken impression that emails are confidential and safe from public viewing.

Nothing could be further from the truth.  Emails can be restored from a computer even after they are “deleted,” and become all the more damning when the fact is revealed that the computer owner unsuccessfully attempted deletion, showing that the owner was personally aware of how relevant and how damning the document was.

The landmark case on E-Discovery is Zubulake v. UBS Warburg, LLC, a case brought by Laura Zubulake, whose employer fired her because she was a woman, and who, because of her high annual salary, estimated that her full back-pay and front-pay damages to be $19 million, but because her employer was caught trying to hide incriminatory emails, the total damages increased to $29 million, plus millions more in attorney’s fees and costs.  I suggest that you remember Laura Zubulake whenever you think you are “confiding” something to your computer!  This is especially true of Facebook communications; courts have repeatedly held them to be completely public information, and employers have been found to be justified in monitoring employees Facebook accounts, and using the information found there to justify employee firings.  And when you interview for a job, you should presume that the prospective employer is Googling you and searching Facebook for information about you.

If you have any questions about this or any other matter please give me a call at 610-565-9800..  If you can’t call during regular hours, my home phone number remains 610-565-7712.

Houses (Uglly)

HOUSES (“UGLY”)

“We Buy Ugly Houses!” the billboards proclaim, rather puzzlingly.  Why would a house-buyer prefer ugly houses?  The answer is, he does not.  Rather, he is advertising to desperate people who, for one reason or another (foreclosure, mold, other seemingly insoluble problems with their homes), view their own homes as “ugly.”  Typically, when these house-buyers make direct contact with the homeowner, they indicate their interest in a handwritten (usually in red ball-point) letter on yellow lined paper, and typically offer a fraction of the actual value of the house.  But I know some realtors who have been able to sell “ugly” houses, and get full value for them, even in the current stagnant real estate market.

Mold infestation has ruined many a house; but if the mold was caused by moisture intrusion from a defectively performed home improvement, and the statute of limitations has not yet run out (an extremely complicated question to answer in itself!), there may be a way to make the contractor  responsible for the problem he has created.

Often there is a legal answer to the homeowner’s problem.  Foreclosures, for example: They should be fought, with a lawyer, from the very beginning, and the homeowner should admit nothing.  It is only after being locked for several month with the homeowner’s lawyer that the mortgagee begins to consider negotiation.  If the homeowner tries to negotiate at the outset, the mortgagee will only wait out the law suit time limits, eventually taking a default judgment.  And at that point the mortgagee will never negotiate.

If you have any questions about this or any other matter please give me a call at 610-565-9800..  If you can’t call during regular hours, my home phone number remains 610-565-7712.

Liability Issues of Crash Avoidance Systems and Robotic Cars

Today,  I attended a telephone seminar given by the Pennsylvania Association for Justice on Crash Avoidance Systems, Robotic Cars, etc.  In layman’s terminology, these might more popularly be called “self-driving cars.” Self-driving cars raise many more issues of liability than you might first imagine.  The first thing that pops into mind is liability for a crash caused by a self-driving car’s robotic malfunction.  This is not as open-and-shut as it might first appear.  Thanks to the “Fair Share Act,” passed during the Corbett administration, any car manufacturer responsible for damages from a crash, will try to put as much of the blame as it can on the vehicle operator, and as little as possible on the vehicle manufacturer or designer. However, even greater dangers are lurking around the corner. For the time being the National Highway Traffic Safety Administration (“NHTSA”) has placed the responsibility for determining or limiting the liability of the car manufacturers on the states. Therefore, everything for now will be in the hands of the state legislators you will be electing or have just elected on November 8, 2016.

An even greater threat will come if NHTSA or the Congress decides that the states aren’t acting quickly enough, and tries to grant the auto manufacturers immunity for their role in causing collisions of self-driving vehicles. Thus, your vote on the congressman you elected on November 8th will be doubly important.

Self-driving cars raise other issues, too. For example, what if you are injured by a regular car, with no self-driving features?  Can you sue the other driver for negligence in not equipping his car with collision avoidance, adaptive cruise control, lane departure warnings, cross traffic alert, blind-spot detection or lane-change assistance? These features are now available as “extras” in many vehicles, and will become part of standard equipment.

And now, these features, coupled with “black box” technology, make an early impoundment and inspection of suspect vehicles even more necessitous, and as quickly as possible.

If you have any questions about this or any other matter please give me a call at the above number.  If you can’t call during regular hours, my home phone number remains 610-565-7712.

Heartburn

Robert Kuttner, co-editor of The American Prospect magazine, had experienced a few bouts of mild heartburn, when a particularly severe episode sent him to the emergency room. After his doctor prescribed Prilosec (omeprazole), a common heartburn therapy, he thought that this would resolve his condition.  He never imagined that this drug — intended to treat his symptoms — would actually make them worse, and that he would become dependent for years on ever-increasing doses of the medication in a dangerous cycle ending only after he stopped taking Prilosec and switched to other, safer therapies.

This story is likely all too common among patients placed on a widely used class of medications known as proton pump inhibitors (PPIs) — Prilosec being the most common — which suppress stomach acid and are used to treat conditions such as heartburn and other, more severe illnesses.  The drugs have traditionally been considered largely harmless by patients and physicians alike. Yet PPIs have been increasingly associated with a range of dangerous, and sometimes fatal, side effects and can even cause, as in Mr. Kuttner’s case, long-term dependence.

In August 2011, Public Citizen filed a petition with the Food and Drug Administration (FDA) to put black box warnings on all PPIs to warn doctors and patients of these life-threatening side effects and to remind doctors that there are many safer alternatives for everyday conditions, such as acid reflux, that often work just as well. The petition was supported by Mr. Kuttner and Dr. Helge Waldum, a physician-researcher and author of 135 scientific papers, among them the first study showing that patients could become dependent on PPIs.

The absence of prominently displayed risk information in PPI labels is likely a key contributor to the vast amount of overuse of the drugs, as doctors may not be aware that such serious risks exist and thus resort to PPIs as a first option for even mild cases of heartburn. Most patients on the drugs do not even have a documented need for the therapy, and many more could easily be switched to safer options.

Even the most popular over-the-counter remedies for heartburn, like Tums and Rolaids, have risks if they are used in high quantities.  Many of these problems can be cured by overcoming dietary misperceptions.  A popular Prilosec TV commercial contains implications that heartburn is caused by highly spiced foods; in fact, the heartburn is probably more closely associated with the high-fat-content foods that are the carriers of the spices, and not the spices themselves.  The late Senator Joseph McCarthy, a prodigious drinker of Scotch whiskey, had the practice of consuming a stick of butter to protect his stomach, before settling in to his Scotch, never realizing that the butter was not a buffer against, but actually a primary cause of, his chronic heartburn.

Concussions

Many years ago I wrote to you about the “hidden epidemic” of undiagnosed, untreated concussions, and how they were quietly frustrating the lives of many Americans, who didn’t even realize that they were dealing with a concussion.  Today, the public and professionals are more aware of the gravity of any cerebral concussion, but we still see news stories about the military not recognizing that the blast of an IED can cause a concussion so serious as to warrant a Purple Heart, and we still see coaches returning concussed football players to the game even though they are still dazed.  Many people suffer serious aggravations of concussions because coaches and professionals so often don’t recognize the symptoms of concussion and the dangers of repeated head trauma.

Often a person who has been a hard worker and supportive family member for years can seem to come through an accident without serious injury, but then will become withdrawn from co-workers and family, strangely hostile and sensitive to ordinary criticism, forgetful, and exhibit other signs making it appear that he/she is “just not the same person.”

The diagnosis of concussion is so frequently missed because of the following popular misconceptions about concussions:

  • A concussion does not require a direct blow to the head. The sudden deceleration and acceleration of the brain inside the skull, smooth on the outside but surprisingly convoluted, with many bony ridges, on the inside, is enough to cause a concussion.
  • A concussion does not require a loss of consciousness (“LOC” in medical lingo). Most medical authorities agree that it is enough if the victim experiences a “stun,” or an altered state of awareness, the “ding” of the football player who keeps playing but thinks its first down when in fact it’s third.  Also, harried emergency room workers will ask the injured person if he/she suffered a LOC, when in fact the injured person is the last person who would know if he/she had a LOC–because he had a LOC!
  • Many people recover from concussions after six months or so. But concussion’s symptoms are usually cumulative; each concussion experienced through one’s life builds upon the damage caused by the previous concussions.

Since we have to be our own guardians against the harm caused by concussions, what should we do to protect ourselves and our family members from the damage of concussions?  Some of these cautions will be hard to take:

  1. Remove your family member from the circumstances in which he/she will be in danger of getting another concussion. Translation: Consider asking your boy to stop playing football after his first, or certainly after his second, concussion.  For decades the NCAA has adopted “Quigley’s Rule,” which says that a college football player with three concussions has played his last play.  It’s true that soccer players suffer more frequent concussions than football players, but offensive football linemen suffer more serious concussions.
  1. Another danger zone is the automobile. It would be unreasonable to expect everyone to stop driving, but at least minimize the risk by using your seatbelt.
  1. After any possible concussion, seek the treatment of a physician, ideally a neurologist. Ask him/her to refer you or your family member to a good neuropsychologist, for comprehensive neuropsychological testing (This costs about $3,500, so be sure to seek this testing early, before your $5,000 of auto medical insurance runs out).  If this testing confirms brain damage, you will then be eligible to seek the psychological remediation that will be necessary to help you deal with this problem.
  1. Once a diagnosis of concussion has been made, psychologists have amazingly simple but effective ways of dealing with the brain damage caused by concussion. For example, one of the most vexing symptoms of concussion is impaired memory, which in turn causes a host of other problems, from irritability with family members, missed appointments, blaming others for one’s own forgetfulness, losses of temper, etc.  For some people, carrying a note-pad, preferably on a chain around the neck, so that it is never forgotten, improves the memory so much that after time, the note pad can be discarded.  The tragic cases are of those people for whom these simple remediation steps are never taken.

Contact Our Office at 610-565-9800.

Cheap Chinese Imports

CHEAP CHINESE IMPORTS

Many years ago, when I used to attend rock concerts, I always became concerned when, at the end, the audience would try to coax out the performance of an encore by lighting and holding up for two or three minutes, or even longer, their Bic or other cheap, plastic disposable cigarette lighters, giving the arena an eerie appearance of being filled with tongues of fire.  My concern was that one of those thousands of lighters would have a defect, normally undetectable, except for when the lighter’s fuel nozzle was heated for an unusually prolonged period of time, causing the plastic barrier separating the flame from the butane to melt, with the butane then exploding upon–and burning–the lighter’s owner and others nearby.

A few months ago I learned my concerns were valid, when I read of the lawsuits against the Chinese Zhuoye Lighter Company and its American affiliate, arising out of the experience of William Clemmer, a machinist of Stephenville, Texas, whose torso was engulfed in flame when the disposable lighter he had just used to light a cigarette, exploded in his pocket.  Mr. Clemmer’s last words, en route to a Dallas hospital, were, “My lighter exploded.”  Mr. Clemmer’s survivors reached a small settlement with the American affiliate, but their main case against Zhuoye remains pending in the legal limbo awaiting anyone seeking justice from the Chinese justice system.

Imports account for more than 75% of the U.S. disposable butane lighter market, and Chinese-made lighters account for 58% of the imports.  The best advice is to stop using disposable butane lighters.  Anyone in Pennsylvania injured by a Chinese lighter before June 28, 2011 could obtain full justice by suing Zhuoye’s American affiliate, but anyone injured on and after that date, when the legislature and then Governor Corbett abolished joint liability, will have to sue only Zhuoye here, under complicated international laws, or in China, at great further cost to themselves.

Contact Our Office at 610-565-9800.

Legal Fees Are Too High!

This newsletter is about a subject that everyone hates: LEGAL FEES.  Everyone thinks legal fees are TOO HIGH.  Here’s why legal fees are high, and what I try to do to keep legal fees down as much as possible.

Legal fees are high because they have to cover a lot of items you never think of, but which are necessary to be paid for the lawyer to be able to keep the doors of his office open.

Law School. After getting through – and paying for – four years of college, the lawyer then has to go through and pay for the three years of mental torture known as law school – where dry subjects like contracts, torts, negotiable instruments, creditor’s rights, secured transactions, taxation, corporations, municipal corporations, wills and estates and the like, are mandatory, but can be so boring as to turn the law students’ brains to stone.  And all this while the cost of paying law school tuition puts the student on a starvation diet, literally.

The Law Office is no different from any small business. The lawyer must pay monthly bills for rent, telephone, salaries, insurance, postage, stationery, career continuing legal education, subscriptions to legal journals and newspapers, among other things.

Free Time. Decent lawyers must spend a lot of time each day keeping current with changes in the law, by reading about new laws and decisions in The Legal Intelligencer, a daily newspaper, and in legal journals dealing with the lawyer’s area of specialization.

Pro Bono Time. Even before the Supreme Court’s order that all lawyers must contribute free time or cash to provide representation to the needy, I always devoted some time to helping some people for free.  Most recently, I tried a case of a quadriplegic person hit on his bicycle by a hit-and-run driver when he was 16, who was suing the Commonwealth of Pennsylvania for payment of expenses which the law required under the old No-Fault Law, but which the Commonwealth just wouldn’t pay until the Court ordered it.

Keeping Legal Fees Down. Everyone expects that, because “the other guy” is at fault, then “the other guy” should pay all legal fees. That would be the case in England.  But in America, each side pays his or her own fees and costs.  So what to do?  If a lawyer wants to work at keeping his clients’ legal fees down, there are several devices that can be used:

Arbitration Clauses. Arbitrations are tried and decided by one or three people, called “arbitrators.” Otherwise, the case has to be decided by a judge and twelve jurors.  For a variety of reasons, the cost of an arbitration trial is about one-tenth the cost of a jury trial.  Therefore, whenever I write or revise a contract for a client, I always add a clause providing that any disputes over the interpretation or application of the contract are to be decided by arbitration.  I also add a clause that the losing party pays both sides’ reasonable legal fees and costs, just as though the English rule applied to the case.  If I am not confident that my client will win, we don’t go to trial.

Paralegals and Associates. Lots of legal work in cases can be done by paralegals and associates (younger lawyers), who work at lower hourly rates.

Candor to the Client. If there’s no basis in the law for a client’s position, I take a deep breath and tell him or her the bad news, rather than “riding the case to trial,” and billing it all the way to a predictably bad conclusion.

Legally Permissible “Fee-shifting.” Some laws allow the court, under certain circumstances, to order the losing side to pay reasonable legal fees and costs.  For example, the UTPCPL, Unfair Trade Practices and Consumer Protection Law, §71 Pa.S. §201.1, ff., lets the court do this, if the consumer can prove that the defendant was guilty of deception.  Fee-shifting is also allowed by the federal civil rights acts, and by many other laws.  It always surprises me how often other lawyers don’t even attempt fee-shifting.

Contingent Fee Agreements (CFAs). Some cases – typically, those with a long, expensive path to trial, but which are fairly likely to lead to a payoff in the end–are  appropriate for a contingent fee agreement.  A motor vehicle rear-end collision, where either the defendant is insured, or the plaintiff (our client) has uninsured/underinsured coverage (“UM/UIM”), is typical of these, where the CFA provides that we pay the costs “up front” (sparing the client from having to “front” this money), which will be repaid to us out of the payout at the end, along with a legal fee that is a percentage of the payout.

FREE INITIAL CONSULTATION. If your legal work can be covered by a contingent fee agreement then there is NEVER any legal fee until the end of the case, when it can be painlessly paid out of the insurance settlement.  In all other cases, I give the first half-hour’s work free (I figure it takes a client that long to decide that he/she doesn’t hate the lawyer’s guts), and if I can wrap up the client’s case in an hour, then I forget about a legal fee.

Contact Our Office at 610-565-9800.