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Archive for Defective Products

What is Virginia’s Statute of Limitations?

Wednesday, May 15th, 2013

     Who is Limitations and why is there a statute named that ? ice cream

     Yes, that’s probably the kind of question that I would have asked when I was a kid. For the same reason that I thought that the song  we were singing in church was, “Bringing in the sheeps… we shall Columbus, Georgia”,  instead of “Bringing in the Sheaves… We shall come rejoicing”.  That’s what happens when you sing what you hear, when you can’t yet read. Like Statute of Limitations, not statue of limitations.

     Of course, I really am doing a round about discussion of the question, “How long do I have to bring a lawsuit”? Well, below is a quick chart on some civil actions, provided from Lawyers.com.  Separately, ”When does the statute start to run” is a question that is sometimes argued to a Judge. 

      Still, even with the following chart, it still can be a bit confusing. kinda like:confusion chart 

Assault and Battery, 2 years

Va. Code § 8.01-243(A)

Contract (in writing), 5 years

Va. Code § 8.01-246(2)

Contract (oral or not in writing), 3 years

Va. Code § 8.01-246(4)

False Imprisonment, 2 years

Va. Code § 8.01-243(A)

Fraud, 2 years

Va. Code § 8.01-243(A)

Enforcing Court Judgments, 20 years

Va. Code § 8.01-251        

Legal Malpractice, 3 or 5 years (Depending on the type of contract or agreement)

Va. Code § 8.01-246(2) or (4)

Libel, 1 year

Va. Code § 8.01.247.1

Medical Malpractice, 2 and up to 10 years (Depending on the type of malpractice and when it’s “discovered”)    

Va. Code § 8.01-243(A) and (C)

Personal Injury, 2 years

Va. Code § 8.01-243(A)

Product Liability, 2 years

Va. Code § 8.01-243(A) and (B)

Property Damage, 5 years

Va. Code § 8.01-243(B)

Slander, 1 year

Va. Code § 8.01.247.1

Trespass, 5 years

Va. Code § 8.01-243(B)

Wrongful Death, 2 years

     So for pic o’ day, just in case you aren’t interested in a chart, how about a little lawsuit adversity that compares to… hand meets fist? I know… it’s getting crazy!

hand meet fist

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Doctors and a Dishwasher

Monday, April 8th, 2013

     Most medical doctors take the Hippocratic Oath. It is believed to have been written by Hippocrates who is often regarded as the father of western medicine. It requires a doctor to swear or sign a document to uphold certain ethical standards. The oath includes the following, “I will prescribe regimens for the good of my patients, according to my ability and my judgment, and never do harm to anyone”. The last part comes from a latin term that  literally means “first, do no harm“.

     That introduction takes us to Laurence Hammock at Roanoake.com, who wrote the following story about two Virginia doctors. I will let you decide whether their conduct fits within the oath. Here is a portion of his story: 

“The Virginia Board of Medicine has fined two Salem physicians $1,000 each for using a dishwasher to clean medical instruments.

Dr. John Harding and Dr. Christopher Keeley, both gynecologists affiliated with LewisGale Physicians, were named in orders recently filed by the board.After a hearing last month, the board found that Harding and Keeley improperly disinfected medical instruments, including speculums used for gynecological examinations, by cleaning them in a dishwasher at their practice.

John Jessee, a Roanoke attorney who represented the two doctors, said there was no evidence that any patients were harmed as a result of the practice. However, the doctors’ office began using an autoclave, which disinfects medical instruments at much higher temperatures than produced by a dishwasher, after a LewisGale director of quality expressed concerns about the practice in July 2011, according to the board’s order.

Harding and Keeley told state regulators they believed using a dishwasher was an acceptable practice that presented no risks to patients. Speculums are not required to be sterilized in the way a scalpel is before surgery, they argued. Nonetheless, a March 19 finding from the Board of Medicine, made public this week, ordered the doctors to pay fines of $1,000 within the next 60 days’.

     One final note on medicine. This is from Katie Couric’s blog on “Medical Mistakes”. She recites the unfortunate statistic with support on preventing what is currently occurring.

“Did you know that more than 200,000 people die every year because of avoidable mistakes in operating rooms, hospitals and doctors’ offices? Or that thousands more live with the consequences of life-changing medical errors? Think this could never happen to you? Think again because it can, and it did happen to Carolyn and Sean Savage from Sylvania, Ohio.” (click on the blog cite to read about this family) 

     Personally, I don’t want my blog to be an attack on doctors because I have and still do rely on good medical care. However, I think that it is also necessary to be vigilant and be personally responsible.  

     For pic o’ day, first I thought that I would revert back to Eli ManningEli

     I can’t help it, that picture just makes me laugh.  Then, when I thought about it, I realized that even the Happy Meal is not the same.

small meal

     Finally,

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Read it again, Grammy!

Sunday, January 27th, 2013

One of my favorite childhood memories takes me back to my love of a great story. My grandmother used to get her morning coffee and butter raisin toast. Then, she would sit down in her big red chair and I would sit on the right arm of the chair.

She would reach to her left and pick up a story book from the stack of books that were collected next to the chair. Then, she would open the book and begin to read as I would peer over her arm and look at the pictures and words that I could not yet comprehend.

She had read these same books to me over and over so many times, that I could repeat the words verbatim. Still, with exciting voice inflexion and change of voices to match each character in the books; she read them as though it was the first time, and I listened so attentively as though I had never heard this story.

The stories all had some lesson that included some hero. And, of course, there was always a good ending to the story. Then, I would say, “Read it again Grammy, read it again”. She would commence at the beginning again until we would move on to the next book. The only break usually included her getting a refill on her coffee.

Many times before bed, we would be right back to those same stories. Even if we had to take a break for real life things. As I type this blog, it takes me back to such a good feeling of just sitting there, never wanting the Grammy to stop reading.

In Saturday’s HamptonRoads.com, there was a story titled “Job seeker tries to plant seeds at Va. Beach expo”. The story included a picture of a young man standing in front of the display. He is bit out of place at the Virginia Beach Convention Center, where the Virginia Flower & Garden Show is set up.

The many displays on the floor include potted greenery and garden tools. At this one display, a 27-year-old man stands with a table behind him, and a large white sign that says “John Wike/Bachelor Degree-Business Management”. Instead of selling rakes, he is pitching himself for employment; hoping that during the three days of this convention that someone will have a job opportunity for him.

In real life, the end of the story is not always perfectly scripted. Many clients that call me also weave a story of lost wages and lost opportunity. Sometimes on their path of life, they are unable to pursue a career or take a desired job that has been offered. Other times, they miss so much work that their employer either terminates them or they lose some career advancement opportunity.

Part of the damages of an injury claim can include making a claim for lost wages. That claim exists even if a person did have sick time that they could take as a benefit of their employment. The person that hit them does not benefit from the collateral benefit of a sick leave payment.

Virginia also recognizes a claim for loss of earning capacity. Following an accident, a client may be earning more than they were earning before the car crash. However, they may have lost a job or career opportunity that could have provided a better income for their future. For that, the person that caused the crash should also be responsible.

Every day, I hear “stories” about difficulty. Fortunately, I have also seen many good endings, despite the road of difficulty in getting there.

After I read the “Wike story” about how he was seeking a job; I also continued to read the comments that followed. One person commented that they really enjoyed reading the story. Then, they wrote, “please do a followup story on him…. I bet he gets a job soon”. Just like me, they like a happy ending.

In my head, I can still hear my high voice saying to my Grandmother, “Grammy, read it again” and my grandmother turning the book to the beginning and off we go again to a happy ending.

Just for conversation, I still have people ask me about “my holidays”. So, I am posting this pic o’ day that makes me laugh:

 

 

 

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Hand Grenades at the Office

Wednesday, October 10th, 2012

Before passing the bar, I worked as a law clerk. That law firm handled a wide range of cases. It was good experience because I quickly learned that I did not want to do real estate closings. I was also assigned to a case involving a truck load of apple sauce that had been part of a collection case. I was working on “freeing the apple sauce”.

One of the lawyers at the firm came walking into my office one day, and asked me if I wanted to be involved in a special project. I am always up for adventure. He then proceeded to tell me that we had been hired by an out-of-state family to handle an estate matter. That meant that we needed to go to a nearby home to inventory everything in the home.

This memory would not have made the blog if it had not been unusual. In this instance, I learned that an elderly lady had passed away a few weeks earlier. I quickly figured out that no one had been to the home in quite some time. My job was to go through each room and itemize everything in the house; to then list the items on the estate filed inventory form.

In the living room sat a single chair that faced a television. A half eaten TV dinner was off to the side. A glass and a few plates were sitting in the sink. The bed in the single bedroom had been neatly made. It almost felt like I could expect the homeowner to return from the grocery store at any moment. Just things frozen in time.

I was reminded of that story when I read about a Palm Beach lawyer (Palm BeachPost) who was performing the same type of job at the home of a World War II veteran, who had recently passed away.

As this attorney was taking an inventory of the items, he came across two hand grenades in the home. The lawyer brought them back to his law office because he did not want to leave them in an unattended home.

When he brought the grenades back to the office, it apparently made his staff a bit uncomfortable. They decided to call the bomb and arson squad of the Palm Beach County sheriff’s department. According to the story, it sounds like the sheriff’s department gave them a pretty good scare. Basically one of those… “put the grenades down and step away” kind of scares.

The sheriff’s department issued the following reminder to the news reporter, “If anyone is in possession of any type of military device, they are urged to NOT touch it and immediately call local law enforcement to have it removed properly and safely”.

I am not sure that everyone will abide by that. I do know that I am not going to pick up a porcupine if it comes wandering into the office. I know… I digress.

I received the following for pic o’ day. They called it “Bill Clinton elementary school”:

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Coppertone Burned

Wednesday, September 26th, 2012

I was trying to be creative with my Coppertone blog title. The real story (Reuters) is that Merck has agreed to settle a decade old class-action suit over allegations that the company had made false claims about its Coppertone sunscreen products.

Merck purchased the Coppertone franchise in 2009, so it knew that it was taking on this litigation. It now has agreed to pay between 3 and 10 million to settle the claims that were previously brought against Coppertone, but does so with the standard settlement language of  ”denied any wrongdoing or liability”.

The lawsuit had been brought on behalf of several consumers.  The lawsuit claimed that Coppertone exaggerated claims about its sunblock sprays and lotions. As part of the settlement, Merck agrees that Coppertone products that are manufactured after June 22,, 2012 will not use the terms “sunblock”, “waterproof”, “sweatproof”, “all day”, and/or “all day protection” in the label, or in the advertising or marketing of its sunblock products.

Those that purchased Coppertone products during the class settlement period are able to claim a refund of $1.50 per purchase. As to the description of the product, I am still wondering what they will now market. How does this sound, “Product to be used for fun at the beach… that’s all” or “How about some Coppertone that doesn’t guarantee”?

For pic o’ day, my mom sent me this one. Good voice marketing!

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Categories : Defective Products
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Some Poison and Rice

Wednesday, September 19th, 2012

 

     A little known problem of significance is just now hitting the news. (Fox) In fact, it was on “The Today Show”, with Matt Lauer offering some hard questions.

     Consumer groups are now beginning to pressure the Food and Drug Administration to set federal guidance on rice. Arsenic is thought to be found in rice in dangerous levels; because it is naturally present in water, air and soil.

     For those who are against government regulation or involvement in our lives, this might be one time that they will want government to step in to our rice pudding!

     The Consumers Union reports studies that found 8.7 micrograms of arsenic, on average,  in 223 rice samples that were tested. Arsenic is known to cause lung, skin and bladder cancer. Based upon preliminary results, rice grown in Texas, Louisiana and Missouri could have the highest levels.

     Consumer Reports says that rice eaten once a day can drive up arsenic levels in the human body by 44 percent. There is even suggestion that this might be effecting the chicken industry.

     I am blogging on this just to make sure that you are aware. More is being reported. For now, the FDA does not regulate arsenic levels in rice and that is why consumer groups are asking the government to take action.

     For pic o’ day, I was looking for a rice picture and came across a medicine picture for pic o. Gotta stay away from the poisons!

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A Gary Homsey Life Lesson

Sunday, May 20th, 2012

When I showed up for my first day of law school, I walked into the lobby and looked directly to a room to the right. Above it hung a sign that said “Homsey Computer Center”. I soon learned that Gary Homsey was a local personal injury lawyer who had made a significant donation to the law school’s libray. I filed that name away, because the law school would not allow full time first year students, to also work.

The second year rolled around. Time to clerk part time. I called the Homsey law center and tried to apply for a job, but was told that he was not hiring. I did know a 3rd year student who worked for Mr Homsey and he got me in to see one of the associates. While there, I was able to speak with Mr Homsey. He confirmed that they weren’t hiring.

I’ll cut to the chase. I left that day with a job. BUT, I didn’t have an office and I was being paid less than minimum wage. It probably wasn’t really even considered a law job, but I felt that I had my foot in the door, even if I couldn’t afford shoes for the foot.

I was assigned to attorney Randy Robinson. I also did personal errands for Gary Homsey that included picking up dry cleaning and collecting rent from tenants at a rundown shopping center that he owned.

During the first week of my employment, I moved some things out of a file room. The office manager even helped me find a desk to put in there. I didn’t walk into “my office”. I basically jumped in it. I even had a little tape recorder. Of course, I referred to it as my dictation machine.

I can still remember dictating my first letter. It was only about three sentences long. I kept re-reading it. I couldn’t believe that I was being paid to “do law” despite being in a closet/file room without windows, where I hung my jacket on a filing cabinet handle.

During the second semester, I had worked into a position where Mr Homsey was personally giving me work to do… on cases. The case that made the most impact on me involved an exploding tire that caused the client to lose his leg. Those cases are always very difficult to prove because it requires proving a defective tire; and knowledge or failures of the manufacturer.

The day before trial, I picked up our Kentucky-based expert tire witness from the airport. As a side, I worked with him on a case many years later. When I reminded him of the time that I had picked him up in my little red truck, he smiled and remembered. In those days, I had not heard of Sam Walton picking up people in his beat-up truck and traveling to a Walmart store with his dog Roy; but, I suspect it had a little bit of that kind of impact.

The afternoon before trial, I picked up the tires that were evidence in the case, and took them to the courtroom for the trial the next day. I also had sat in on the preparation of the client.

Because of school, I could only be present for portions of the trial. I would bring things back and forth from the office, to the courtroom. I knew that right before trial, Mr Homsey had turned down $400,000 to settle the case. Since I was making minimum wage (I had received a raise since hiring) and was on a budget that included 19 cent pizzas from the grocery store; turning down 400K made me swallow hard.

Well, I’ve set up the story. Now, here’s what happened and the lesson. (As always, I’ve typed too long).

The trial lasted 4 days. I kept calling the office from school. The jury was still out. The last time that I went to the pay phone, the receptionist gave the bad news… defense verdict. I was crushed. Then, I was sad for the client, and then I was worried for Mr. Homsey.

The next day, I got to the office after my two early morning classes but didn’t expect to see Gary in his office. Surprisingly, he was there. So, I made a beeline to his office. There he sat at his desk, working like a normal day.

I know that we talked about the case, but I don’t really remember that. I just couldn’t get over that he was there in the office, after that terrible result. I asked him about being there.

He told me that he was terribly disappointed for the client. There had been multiple reasons why they had not accepted the highest offer. But, Mr Homsey reminded me that you just have to pick yourself up from defeats and keep moving forward. Then, the conversation was over because he was working on the file in front of him; another case soon going to trial.

I’ve heard that same advice from many, but that time it really stuck with me. Recently, I saw that my law school just presented him with an honorary doctorate in humane letters. I’m sure that there has been a lot of “water under that bridge” since that tire case. But, it doesn’t surprise me to hear that they honored him. Gary Homsey was a great example to pick yourself back up and keep moving forward.

For pic o’ day, it’s completely off topic but I never get tired of seeing this funny picture on friendship:

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Come On… Not Skechers Too!

Thursday, May 17th, 2012

 

I was thinking that I should put on my Ab Belt  as seen on TV, before beginning to blog. It sends signals to my nerves to work the ab muscles and I don’t even have to workout.

Then, I figured that I would pull out my Magnetic therapy hair brush and begin to run that amazing laser comb to stimulate the scalp. When you are follicle challenged, it sure is exciting to know that my hair will start to grow like grass in a garden.

Of course, I can’t leave out the wrinkle cream. I mean, I can put a little multi-active on the face while blogging and literally feel the facial lines just begin to fade into the rear-view mirror of life.

I haven’t even gotten to that plastic thing that you put your clothes in and insert the vacuum hose. Pretty soon, it reduces an entire closet full of clothes into one tiny container that easily slides under the bed. Of course, when I move to the closet with my ”shrunken clothes” container ,  I have to be cautious not to make much noise; might activate the clapper light switch and turn the lights out. (I know, I’ve hit the tipping point)

Which brings us to my blogging disappointment. It turns out that Skechers  Shape-ups should not really be considered as toning shoes and fitness apparel. The Federal Trade Commission says that their advertising was false.

David Vladeck, director of the FTC Bureau of Consumer Protection says that in wearing those shoes, the “only thing that got a workout was their wallet.” The FTC determined that when Skechers was advertising about its studies it was false,  and that people “were gaining weight” rather than losing.  They found that the toning shoes did not promote calorie burning or muscle building  any better than basic sneakers.

Skechers is admitting no wrong. They have unconvincingly admitted no wrong  by agreeing to pay a settlement that adds up to a 40 million dollar refund.  Those who own a pair of the toning shoes can go to the FTC website  and fill out a claim for reimbursement. Claims must be filed within the next eight months.

I’m guessing that the FTC spokesman has a sense of humor. He told the reporter that “Sketchers put its foot in its mouth by making unwarranted claims”. Next thing you know, we’ll find out that Buster Brown does not live in a shoe with his dog Tide. (Now that’s some advertising history)

And now some exercise for pic o’

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Lawsuit Notes and a Recall

Tuesday, May 8th, 2012

I get emails everyday that list legal cases and/or recalls. Here’s one recall and one case. Both have interesting consequences.

First is a recall from the “Get that out of my Lasagna” Newswire. Nestle has announced a recall of its “Stouffer’s Satisfying Servings Lasagna Italiano”.  According to the recall, the Lasagna included stuffed peppers that are not supposed to be in there. Their stuffed pepper recipe includes Worcestershire Sauce; which includes anchovies; which is a problem if you have a fish allergy. Not so satisfying!

Since I’m not a stuffed pepper fan, I would have real Lasagna disappointment.  This recall, with its ingredient concern, reminds me of the “For Want of a Nail“ proverb that includes ,”For want of a nail the shoe is lost, for want of a shoe the horse is lost, for want of a horse the rider is lost… ” One mystery ingredient that keeps giving in a bad way.

Next  is  another lottery ticket case that sounds more like a riddle.  One woman bought a lottery ticket and ended up throwing it in the trash, after the lottery machine incorrectly identified that she was a loser. Along came Sharon Jones, who regulary would go through trash cans for discarded lottery tickets, because they sometimes qualify for secondary prizes.

According to her, when Sharon Jones ran it through the state’s database, it wouldn’t let her enter the ticket number. That had never happened to her before. When she followed up with the Arkansas Lottery Commission, it turned out that this discarded “Diamond Dazzler” ticket was a million dollar prize winner.

After reading these facts, who do you think deserves the winnings?

When Sharon Duncan learned about the winning ticket from the trash, she realized it was her winning ticket. She filed suit, claiming that she relied on the Lottery Commission’s “not a winner”. The Lottery Commission claims that they have never had a report of a mis-scanned ticket.

The Judge has ruled that the ticket belongs to the initial purchaser. His ruling was based on the fact that she was the bona fide purchaser who never intended to abandon her winnings. As the Judge put it, “The $1 million was never found money”. I did not see that one coming. I would have guessed finders-keepers.

The case is now on appeal. The Jones’ (finder) have about 490K of their 680K that they received, after taxes were taken out. The money is now being held under a restraining order.

So, it’s not the end of the story. In the meantime, next to the fried chicken signs, the convenience store has a sign proudly hanging that says “Winning Million Dollar Lottery Ticket Sold Here”. I guess there’s no sign at the trash can that says “Found Here”.

And for pic o’ day, I know that I probably get to carried away in posting animal pictures. My mom sent me this one that did make me smile. Sometimes it just feels good to put your head in the wind:

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An Elevator Injury

Sunday, February 12th, 2012

It was a story that I had put off writing when I first heard about it. I even moved it to my “future blog” folder. Then, I saw that a lawsuit was filed by Corey Hill because of his Elevator injury . Anyone who is claustrophobic probably decided not to read this blog, after seeing the title.

Corey Hill is a dancer and fitness trainer. It was a normal day for him which included getting on the elevator in his apartment building. After he pushed the button; the elevator doors closed and it started free-falling to the ground.

Corey Hill described the next few moments as the “scariest thing I’ve experienced in my life”. Hill has done sky-diving and prior to this, had a very active and physical life. However, his physical condition did not prepare him for the fall.

The elevator fell several floors and then jerked to a stop. Hill said that he braced himself and then felt some tightness in his neck and back. He initially told the concierge of the building that he did not need medical attention.

The next morning, when he woke up; he found that he could barely walk. He also had lost feeling in his legs. He now needs braces to get around and continues to go through physical rehabilitation to gain strength in his legs.

Hill filed suit against his Landlord, Century Vertical Systems and Transel Elevator. Transel is the same elevator company that had worked on an elevator that was involved in a fatal accident that killed a Manhattan ad executive.

The defense has already gone into action in this case; much like I’ve seen in some of my cases. The Landlord is attempting to evict Hill. They also claim to have video that shows that they are not at fault but they have not allowed his attorney to see it.

Some other defenses that I suspect to be raised will include: his delay in treatment; his failure to mention his injury to the concierge; they might suggest that his employment as a fitness instructor could mean that he really injured himself at work; that each of the defendant’s will say that they are not really responsible for the elevator; and, they will probably say something like, he should have known that something was not right about the elevator when he got on. Of course, if he didn’t notice anything, then they certainly would not have had noticed either.

My knowledge of the fall is limited to the one article that I posted. Those are just some defenses that I hear repeatedly. The defendants have not yet filed their answers to the lawsuit. I’m so used to immediate denials of everything that I can pretty much guess those defenses.

The mention of an elevator brings a catch in the throat to some. Elevators are connected to claustrophobia. Maybe people even dislike elevators because of a fear of bad music.

Most everyone has some kind of phobia. I wonder what it’s called when insurance companies and corporate defendants have a fear of admitting responsibility?

And pic o’ day…. Another family photo photographer getting carried away.

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