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An Expert or an “Opinionater”

I know it is hard to believe, but I am truly starting the blog with a picture that is related to the subject matter. I know… that is some crazy blogging!

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Please fight through the blog today because there really is a purpose. I mean it!

This is probably more of a sports blog… because I wanted to write about the upcoming NFL draft. But, I am writing it in the context of law.

(Here we go…talking some legal) To be qualified as an expert in a jury trial, you have to be qualified to give an opinion that is beyond common knowledge. The Virginia jury instruction tells jurors:

In considering the weight to be given to the testimony of an expert witness, you should
consider the basis for the opinion and the manner by which the expert arrived at it and the
underlying facts and data relied upon.

Which leads me to the the concept of “experts” as it pertains to NFL football drafting.  (And yes, I do enjoy using the “emphasis quotes” which is probably as irritating as seeing someone using “air quotes” when they talk) Football fans know that it’s almost time for the NFL draft. My email in-box is being targeted with all kinds of offers to buy draft information, and sports sites are filled with updates and predictions on who will be drafted in the first round. These “experts” all have their opinions.

So let’s travel back to 1998. It’s the draft and the Indianapolis Colts are on the clock with the first pick. Do they pick Peyton Manning or do they pick Ryan Leaf. Well, here is Vic Carucci’s thoughts on who to pick:

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Carucci’s opinion that the Colts should select Leaf is actually laughable now. The reason I post this scouting report is to show that experts can be absolutely wrong. He missed it here.

Recently I watched an ESPN 30 for 30 episode about the 1993 NFL draft. The year that John Elway was drafted first. During that ESPN documentary, we are reminded of their draft expert, Paul Zimmerman, who proudly proclaimed that it was a mistake for the Miami Dolphins to draft Dan Marino. “I don’t understand it”

He went on to say that no one was there to coach him and that it was a mistake for the Dolphins to draft him. They had other needs. That was his draft expert opinion.

I close with the thought that I have seen more expert opinion that should really be more”Opinionater” than expert. In trial, I see defense experts making the proclamation that someone needs no more treatment and has no permanent injury… after only seeing medical records and not even seeing the person.

I had one defense expert tell me under oath that he felt more qualified to give an opinion after not seeing my client, because this made sure that he was not impacted by any bias. Solely basing his opinion on the records. Of course, he smirked when I asked him if he refused to see patients in his office… because meeting them would cause a bias of his treatment. Boom! That is no expert opinion. That is silliness.

And for pic o’ day… I think this qualifies as good expert advice!

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Are They listening? Should I Be Concerned?

Sometimes when I start typing Our Monday Blog, I suspect that you wonder if I am getting paid by the word. I start one place and find myself easily headed down another rabbit hole. (Couldn’t help but throw in an Easter metaphor… right?)

It feels like every week brings us news of another store or company who have suffered a data breach. And a lot of people have their personal information exposed. So that leads me to ask the question, “Are we inviting hackers into our homes because of our purchased equipment. Which now leads me to write about Facebook and Amazon… and what patents they are seeking. A question of privacy.

But honestly, I feel a little like this in discussing some of this technology:

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When it comes to technology in the future, I just like to keep it simple. Much like this watch!

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Practically speaking, at the start of their season, Michigan and Villanova had a plan to win it all. But there is no way that they could have been certain that they were headed for the NCAA Championship game tonight. To give them a chance.

But technology companies think a little differently. Nothing about just a chance.

For instance, Facebook would have us believe that their future plans are here for Us. Here is their privacy statement:

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Something tells me that “my control” would be better described as “what they control of me”. As to Facebook’s new products, here’s what we know. Facebook already has new home products in their arsenal to introduce, that would compete with Alexa and Echo.

But, they have delayed introducing these products and hardware because they are concerned that it would play into the public’s perception of Facebook invading our privacy and using it against us; or having some third party or country use it against us. This delay occurred after it was reported that 50 million Facebook users had their personal information harvested by that creepy company Cambridge Analytica.

Which also leads me to the discussion of their filed patent applications. A view to the future of products.

A recent Gallop Poll reports that 22% of Americans use devices in their homes like Echo or Google Home. (A NY Times article that also discusses the eerie laugh that Echo was strangely making) Which is why we are concerned about companies eavesdropping on us, even though they all insist otherwise.

Amazon and Google assure us that their devices only react to certain trigger words and then shut off. They assure us that unless the green light is on, there is nothing happening. Never mind what happened last fall when Google distributed its Home Minis to journalist… and the equipment never stopped recording. (AndroidPolice.com)

And yet… all these advancements are for our benefit.  But we all agree that voice data from this technology is evolving and here’s where these companies apparently see the future.

For one patent application, Amazon describes a “voice sniffer algorithm”  for home and mobile devices, to analyze audio almost in real time and to react when it hears words like “love,” bought” or “dislike. ”Here’s what they are working on as indicated in a NY Times article titled,  Hey, Alexa, What Can You Hear? And What Will You Do With It?

And here is how they can use such triggers under the patent, “for our benefit”. You could be talking on the phone to a friend… and then get an offer for travel or a sale on pants. The patent describes a diagram where “to your benefit” might mean that you then see an ad for a Wine of the Month Club membership.(Here is the rest of the story)

Google’s patent applications would “benefit you” through their home by providing smart product advertisements that are generated from your audio and visual signals.

So should we be concerned about the applications and just consider them as advancements in technology? No so fast! So says Jamie Court of Consumer Watchdog, which is a California non-profit organization that recently published a study of some of these futuristic applications for patents in an article titled, Home Assistant Adopter Beware: Google, Amazon Digital Assistant Patents Reveal Plans for Mass Snooping (Here)

As I started writing this blog, I got myself crazy researching. If you are still with me this far… maybe you are shaking your head too!

One final thought on this. Google has said that it will generally not provide audio recordings of users to third parties, but may send transcriptions of your voice and your information. It’s listed (Here under their privacy category of “Does Google Home share my information with anyone)

And…. no surprise, Amazon may give app developers this same information as well. (Here) Hmmm!

And for pic o’ day let’s go far away from technology. I guess this is what they call airline humor and it makes me laugh!

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STOP CALLING?

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Are you tired of getting phone calls from strange numbers. Or worse yet, now the calls are coming from phone numbers that look familiar. Telemarketers have taken their schemes to a whole new level of “fake” caller i.d. numbers. Sometimes I answer and sometimes I don’t. Each time it irritates me. I know the same thing is happening to you.

I find myself hollering at a prerecorded voice, “I don’t need a new deal on my cable TV“. Do people still have cable? And what happened to all those lonely cable boxes? I seem to remember that someone suggested that you make cat beds out of them. That is a horrible idea!

I don’t need to hear about insurance or their concern about my car maintenance plan. And now I strangely receive calls… and no one is there. I have found myself repeatedly saying “Hello...Hello“.  What in the world? What is going on?

I remember hearing a warning not to answer phone callers who immediately ask, “Can you hear me?”. Supposedly, when the person would say “Yes“, their voice could be used for fraudulent credit card approvals. Come on!

So what can we do besides throwing our phones out and hollering real loudly. Or, hooking up the two Campbell Soup cans to string, to talk to each other. (Do you remember that?)

Let me attach two articles from USA Today that can better describe the problems as well as identify possible actions that you can take to protect yourself.

The first is titled The robocall battle continues at the FCC and the FTC. (Here)

The article reports that the Federal Communication Commission gets about 200,000 complaints about robocalls each year. In 2017, The Federal Trade Commission received 4.5 million complaints about unwanted calls. Now according to the agency, they get about 400,000 daily. Fraud from unwanted calls is reportedly costing about $9.5 billion annually.

The article goes on to discuss the actions being taken and the regulations that are being proposed, to track these callers and to stop them. The government also calls on consumers to notify the FTC and FCC about robocall complaints at ftc.gov/calls and fcc.gov/robocalls.

The FTC representative quoted in the article notes that “The FTC is publishing complaint data daily, which is helping in the fight. Companies are sharing information with each other to trace back illegal robocalls.” Also, both agencies have a Stop Illegal Robocalls Tech Expo scheduled for April 23 in Washington.

The second article:  How to stop those annoying endless robocalls to your smartphone (Here) gives ideas on what we can do personally.

Ideas include googling your phone number to see if it is being fraudulently used; add your number to the National Do Not Call list; use your phone settings to block numbers; and purchasing apps that assist in blocking and eliminating these calls.

The article is thought-provoking. (I find that so descriptive. Plus, apparently I am fascinated with random thoughts in quotes.)  The cost and applications are discussed.  I also have to show respect to the marketing idea of naming an app NoMoRobo!

And finally for Our Pic O’ Day:

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The Starfish Reminder

I love what Ronald Reagan wrote to Nancy!

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The power of human connection!

And this story from livelifehappy.com sums up what keeps me going!

An old man walked across the beach until he came across a young boy throwing something into the breaking waves. Upon closer inspection, the old man could see that the boy was tossing stranded starfish from the sandy beach, back into the ocean.

“What are you doing, young man?” He asked.
“If the starfish are still on the beach when the sun rises, they will die,” the boy answered.
“That is ridiculous. There are thousands of miles of beach and millions of starfish. It doesn’t matter how many you throw in; you can’t make a difference.”

“It matters to this one,” the boy said as he threw another starfish into the waves. “And it matters to this one.”

Recently I have been interviewing attorneys for our offices. In fact, I have hired 2 attorneys and am close to hiring a few more. Why? Well, this story summarizes it, just like the question that I am regularly asked in my attorney interviews:

When do you plan to retire?

I actually have a physical reaction to that question. The longer I practice law, the more irritated I get with the way that insurance companies treat people. It’s what drives me…puts a chip on my shoulder! It’s why I have no plans to retire and don’t even react well to that question.

What motivates me? Maybe we won’t change how insurance companies treat people. But for our client on this case…it matters to this one!

As that website says, “We make a living by what we get. We make a life by what we give”.

And for pic o’ day…this one always makes me laugh:

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Happy Too!

I always like to start Our Monday Blog with some positivity. This pic o’ qualifies as reaching goals. Right?

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While driving down the road recently, I saw a billboard advertisement for a grocery store chain that simply said, “Groceries Delivered“. That seems to meet a need, but it also is becoming more popular. Perhaps the aggressiveness of Amazon is causing everyone to step up their game in the grocery business.

I remember being one of the first law firms to advertise “We will come to you“. I had noticed a trend of several new potential clients failing to show up for their appointments at the office. I learned that once someone had crashed their car, it made it very difficult to come to our office. Missing the appointment made total sense. I had to come up with a solution… going to their home on their time.

Which brings me to the thought of how to step up our service now? What message or new service could I advertise.

I love the positivity of my father-in-law. When someone asks him for help, he regularly responds with, “Happy Too“. Be willing and ready to help! If I could convey that in all of our ads… then I have maintained our true hopeful message. If someone needs our help… I hope that they feel our response of “Happy Too”!

 

And finally, for our pic o’ day, I think many of us relate to this as we sit in that chair!

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Spaghetti and Positivity

Let’s just keep it going. Valentine’s Day again. Can you feel the love? Not so much? Come on! All right… on with the show. But I hope you can still feel the love!

I am going to tell you one of my weaknesses… it’s spaghetti.

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There are some things that I can avoid eating, but I find myself yielding to the temptation of spaghetti and casting aside all concerns of weight gain. And that’s where I found myself last weekend… on a spaghetti mission!

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And not just any mission. My wife and I were headed to Joe’s Inn for their spaghetti. As we walked in the door, we found several people standing and seated. All waiting for a table. The hostess/waiter walked up to us and asked “how many in your party?”. Then she said “A few tables are about to leave and it should only be a few minutes”.

I noticed that she said the same thing to a few more people that came in, right after us. No one left the restaurant. We waited a bit and no one left. All because we were greeted positively and given “hope”.

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I know I am getting carried away with the spaghetti pictures, but it was a reminder to me about the importance of attitude, even in this restaurant stop.

Years ago, attorney John Morgan in Florida told me that his most important employee at his law firm was his receptionist. What do people think when they call the firm. Just like walking in to a restaurant. The difference between waiting and walking out the door.

Yesterday, I spoke to a lawyer at our firm who told me about a case that he is working on right now. The lady had previously been represented by another local law firm on a prior injury case. Now, she has another injury, but this one is tremendously significant with high medical bills and a multi-million dollar insurance policy. That’s code for… it is a big big case.

Why did she call us? Well, she thought about going back to the firm that represented her on her first case. At the same time, she just happened to see our commercial. Couple that with the fact that she was not exactly thrilled with her last case.

Thankfully, our intake was friendly. Then, she spoke to a lawyer here that was helpful. She decided to hire us. As John Morgan said, you can always find lawyers, but it’s hard to find people who care. And that’s the importance of Team at the firm. It makes me want to say thank you every day, to those who work here at the firm. No different than… a table will be ready shortly. Instead of not caring and just saying, “there will be a 30 minute wait”.

And yes, for pic o’ day, one more pasta mention. Is it wrong to have spaghetti for breakfast? How about if it’s just a side?

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When the Jury Does Not Show Up!

Here we are… it’s Monday! Is this how you felt this morning?

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At the beginning of every jury trial, I always start by thanking each jury member for taking the time to be there. I sometimes wonder if they think that it is just my memorized introduction. They would not think that, if they saw Sunday’s edition of the Richmond Times-Dispatch.

The article (here) is titled, “Jury duty no-shows in Chesterfield are causing trial delays – now the no-shows may get fined, too”.

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But here’s what the reporter is saying.  There were 373 summoned Chesterfield residents who initially failed to appear for jury duty in 2017 and January, 2018. Ultimately, 103 showed up to explain to the judge why they failed to report for jury duty. So far, the court has entered dollar judgments against 24 people. Some of those judgments are as high as $200.

I have previously blogged about having a trial continued in Chesapeake, Virginia, because they did not have enough jurors show up for court.  In Chesterfield, the no-shows are a cause of growing concern in Chesterfield. Court personnel reports having to sometimes scramble to find enough people to seat juries. One November jury trial was canceled because of no-shows.

In the article, Chesterfield Sheriff Karl Leonard was quoted as noting that, “It’s a huge problem. It really delays justice.” He also went on to discuss that some Chesterfield’s circuit judges have indicated they may want him to send deputies to pick up prospective jurors from their homes or workplaces, if enough don’t show up for jury duty.

The Henrico Chief Judge has indicated they they are fortunately not having the same issue. “We just have not had a problem,” said Chief Henrico Circuit Judge James Yoffy, “We do have a good system out here.” Petersburg Circuit Court recorded the third-highest number of juror absences in the region — 312.

Just a quick note on the process from our end. We set a court date that is sometimes almost a year away. Then, we make arrangements with witnesses and send out subpoenas. As to doctors who are going to testify, we subpoena them and then sometimes are also required to pay them a NON-REFUNDABLE trial testimony retainer payment.

If it is a very busy doctor in a specialized area of medicine, that retainer could be $5000-$10,000. Getting on their schedules and then paying large retainers to doctors is expected. Then… you truly hope that all scheduling will work and that everyone will show up, so the trial can go forward. Delay is normally good for the defense because it means that the defendant can put off responsibility for the harms, for a little longer.

Unfortunately, if a trial is continued, it’s not just a matter of showing up the next day. Those days are already pre-scheduled.  It’s once again trying to get back on the Court’s docket. It usually means going downstairs to the Clerk’s office and hoping to get back on a little sooner than it originally took to schedule.

But… those non-refundable retainers to the doctors are usually gone. For the next court date, it takes more non-refundable retainers.

That’s why my beginning remarks to jurors are truly from a place of thankfulness! Even though this is how some might be thinking:

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And for pic o’ day…

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Punishment Punishment??

I could write about Ed… with cherries on his head. What? There are just some things that are difficult to explain. For instance, in 2016, Americans spent a reported $5.3 million dollars buying U.S. flags… that were made in China. Things that make you go hmmmm!

This blog is about punishment legislation in Virginia. Legislator thinking is the confusing part. And I will present some thoughts, but I cannot promise that I can explain it. Of course, you have to remember what they say about the value of free… and that includes free blogging.

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So here we go. FIGHT THROUGH IT WITH ME!

The headline says, “SB 895 Punitive damages; raises cap from $350,000 to $500,000“. In Virginia, this legislative session had a Senate bill that was introduced to increase punitive damages from $350K to $600K. Then, it was amended to an increase to $500K instead.

It “sailed” through the Virginia Senate committee by a vote 24-15. The question is, “why would someone vote yes or no for an increase in punitive damages?”. Here’s how the voting of the senators was registered.

YEAS–Barker, Chafin, Chase, Dance, Deeds, Ebbin, Edwards, Favola, Lewis, Locke, Lucas, Marsden, Mason, McClellan, McPike, Obenshain, Petersen, Saslaw, Spruill, Stanley, Stuart, Surovell, Vogel, Wexton–24.

NAYS–Black, Carrico, Cosgrove, DeSteph, Dunnavant, Hanger, McDougle, Newman, Norment, Peake, Reeves, Ruff, Sturtevant, Suetterlein, Wagner–15

It it now headed to the Virginia House Courts of Justice Committee vote, before heading to the full floor. But again, why would someone be against punishment damages.

Just a couple of thoughts. The punitive damage amount has not been increased in Virginia in 30 years. Insurance is required to cover the punitive damage verdict, if such is awarded by a jury and there is enough insurance to cover it. Also, there is a very high legal standard to meet, to get punitive damages to a jury. Otherwise, a judge will strike it from the case.

So again… what makes a legislator vote against or for it.

I think that those against the punitive damage increase, view it as an issue that is related to being pro-business. If you vote against it you must be helping Virginia in bringing more new businesses to the Commonwealth. Also, you are keeping insurance rates down, because you are helping to keep verdicts down. Verdicts that insurance would otherwise have to pay. Does that sound like good logic?

I think you probably know where I am leaning, but I will say that I am all for bringing new businesses to Virginia; and I do want insurance rates to be lower. In the coming days, I will have some follow-up on the insurance rate issue. Believe me! I want lower rates!

Now here is what we know. When you are starting a business in Virginia or you are thinking about coming to Virginia to do business, you are not asking anyone, “Do you know how much I will have to pay in punitive damages?”. Why? Because no one believes that they will do such acts that are so egregious, that they will be responsible for punishment damages. No one asks “I wonder what will happen when I drive drunk the next 13 nights“.

Punishment damages also serve to protect Virginia citizens. We do not want companies coming to Virginia and intentionally hurting its citizens with their conduct or their products. Remember, it’s not about doing something that causes injury with a mistake or accident… it’s about causing harms with reckless disregard. The legal term includes “willful and wanton” which basically means a conscious or intentional act. That’s why a legislator should be protecting Virginia citizens.

I look at those legislators who have voted “no” and I think, “why don’t they care about their constituents?“. Do they also want to protect drunk drivers?

Now that probably seems a bit harsh. But, I am guessing they do not even realize why they are voting against an increase, for something that has been in effect for 30 years. These same legislators are probably not telling Dominion Power to roll back rates to 1980.

A business who does such bad intentional acts should not be able to get away with it, by simply being responsible for $350K. That is nothing to many businesses. Otherwise, and they can just factor bad behavior into their budget.

As to the insurance increase; if a policy is on an individual, they only have to cover the amount of coverage that is written. In Virginia, a minimum policy is $25K. If it is a business, then typically there are assets to cover a verdict. In the instance when there is coverage… they have already charged significant premiums to cover these insurance amounts. So there should be no increase.

Have I convinced you either way? Well, let’s just all hope that we do not deal with people or businesses that commit such acts that are even worthy of consideration for a punishment damage verdict. In the meantime, it will be interesting to see what the House thinks about this issue and whether the increase will ultimately become law.

On a different note for pic o’ day… this can be explained!

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Really Honey? A Netflix Mention

Since this is a legal blog that might sound more like a food blog today, let’s start with some food humor:

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Hang on… because we are going to talk nectar!

I walked into Shore Dogs for breakfast and ordered some scrambled eggs and an english muffin. (If I am being honest, I ordered an extra english muffin) Then, I walked over to their condiment table to pick up napkins, a straw, and add a strawberry jelly.

That table has a collection of items to please everyone. For instance, there is orange marmalade. I find marmalade interesting because that’s one of those toppings that… you either totally dislike it or you favor that above all other spreads. Me… I think it tastes like orange peels, and I mean peels in a bad way!

Apart from the grape and strawberry jelly, there is also tabasco sauce and honey packs. The honey packs serve as our blog launching point today. Or I could also call this, “What documentary am I currently watching?“.

It’s a new six-episode documentary on Netflix titled Rotten. Netflix describes it as, “Rotten dives deep into the food production underworld to expose the corruption, waste and real dangers behind your everyday eating habits“.

So far, I have only watched the first episode titled “Lawyers, Guns & Honey“. As described in the episode, they rhetorically ask how it is that demand for honey is increasing, while bees are dying off in record numbers. How can it be?

It is educational on how bees produce honey… and nectar is nectar. Right? But greed has led to hidden additives and a final product to the public that has a mixture of honey and contaminants. Much like a drug dealer adding to product to stretch profits.

This documentary is worthy of watching and will make you possibly look differently at those honey packs, at the condiment table. Or, at that plastic bear with honey, in the grocery aisle. And that’s just episode one.

For more reading on this, here is a good article/review from latimes.com (here).

And for pic o’ day, this dog picture fits into our healthy living theme. Or something like that:

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Facts and Caffeine Drink Lawsuits

There are two words in the English language that are spelled with all the vowels in order: abstemious and facetious. To this day, I am still trying to figure out why “and sometimes y was part of my education. Poor y!

John Montagu, the 4th Earl of Sandwich, had a habit of eating beef between two slices of toast, so he could eat without interruption of his card game. Hence… he is credited with “inventing” or naming the sandwich. Is that an example of necessity is the mother of invention?

It is reported that during the years that she was the First Lady, Jacqueline Kennedy smoked 3 packs of cigarettes a day. Which causes me to post this advertisement for cigarettes from the early 1960’s. You wouldn’t expect an NBA player today to be a spokesman, would you?

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These three random items all serve as a prelude to a tragic sequence of events that has now led to a lawsuit. An Idaho man was found dead, after regularly consuming at least four energy drinks a day. (IdahoStatesman.com) His family has now filed suit against the manufacturers of Red Bull, NOS and Monster beverages.

The lawsuit alleges that the 25-year-old man was unaware of the risks associated with these drinks. It goes on to state that the manufacturers should also warn consumers not to use their products with alcohol or while exercising. The family also believes that the manufacturers should also warn that four 16 ounce drinks per day are too many. I have attached the article, because I am interested as to whether you think that the manufacturers are at fault.

I started out this blog by reciting the invention of a sandwich, because these caffeine drinks are basically a way that people, including students and truck drivers, are trying to stay awake and alert. Remember, Necessity is the mother of invention. Should they believe that it could have impact on their health? Which is also why I threw in that last fact about Jackie Kennedy. Maybe in those days, they really believed that cigarettes were a way to relax. But three packs?

Why did I originally mention the two words and my fascination with vowel placement? Really nothing related to the blog, but it does prepare you for some holiday Trivial Pursuit!

 

And for pic o’ day, here is another of my “ole faithful” holiday pictures. A curious Nativity scene for sure!

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