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The Smoking Admission

It’s that time of year when we all start to take personal assessment. Then, we put our new year resolutions together. Then, we smile. Yes, then despite my desire to drop a few pounds, I will still reach for the bread brought to the table.

The same cycle of goal/failure occurs to smokers. Overwhelming evidence of the harms of smoking only cause it to be part of the resolutions list in the first place. Still, the history of the harms through the eyes of tobacco companies are more of a failure than the failed resolution list.

Here is some history:

A  Johns Hopkins researcher reports in 1938 that smokers do not live as long as nonsmokers. Six years later, the American Society for the Control of Cancer warns that smoking might pose dangers but said “no definite evidence exists” that it caused lung cancer.

In 1964, the U.S. surgeon general, Luther L. Terry, issues a landmark report linking smoking and cancer. That sets in motion  measures that deeply cut into smoking rates. This is unfortunate for Big Tobacco because it cuts into tobacco’s profits and influence.

The first effect is with Congress passing laws that require health warnings on cigarette packages. Then, later banning cigarette advertising on radio and TV. Then,  more regulations and restrictions on Big Tobacco.

Despite the previous findings, Big Tobacco routinely defeated lawsuits brought by smokers (and families of deceased smokers) Still, lawsuits were placing heavy attention on the ill effects of smoking. Lung cancer had once been a rare disease. Now, it was effecting millions globally at an alarming rate.

In 1998, Tobacco companies agreed to pay $206 billion to settle a lawsuit brought by the attorneys general of 46 states, who were seeking compensation for costs to the public related to smoking-related illnesses.

1997 was the first time that Big Tobacco admitted causing cancer. It is estimated that in 2015, there will be about 6 million deaths from past smoking. In addition a recent study shows that smoking causes men to lose their Y chromosome. That is the explanation for why it causes cancer. Tough to get an admission of wrongdoing.

And for pic o’ day, I was looking for a Christmas picture and got sidetracked with this celebration:

haapy b day

Titanic Jury Damages

     With 100 years passing since the sinking of the Titanic, it has caused some to look back at the lives of those that survived, and those that perished on that doomed voyage.

     Time Magazine acknowledged Isidor Straus in this look back. German-born American Isidor Straus was one of the most privileged passengers on board. He was the co-founder with his brother Nathan, of R.H Macy Department Store. He had also served as a member of the US House of Representatives.

     He and his wife Ida were parents of seven children.  Their children reported that any time that they were apart, they would write to each other every day. 

     During the shipwreck and as people were scrambling about to board available life boats; 67-year-old Straus refused to board a life boat to safety. Instead, he insisted that his wife’s maid go with Ida. The officer of the life boat told him that he should board with his wife. Isidor felt that it would be wrong to board to safety, while younger men and women had to wait.

His wife then refused to board the half-boat. Instead, she turned and said, “I will not be separated from my husband. As we have lived, so we will die together.”

     Isidor and Ida were last seen on deck, sitting in deck chairs, holding hands. A memorial plaque to both of their memories can now be seen on the main floor of Macy’s Department Store in Manhattan.

     Today, if an insurance company were to contact their children in an attempt to resolve a pending wrongful death claim; the adjuster would probably try to focus attention on what their life expectancy should have been or what their earning capacity represented. They were a team. No computer can measure such emotion.

     Their grandson, Stuart, was also supposed to have been with them for the trip, but had caught a cold and stayed behind because of it. He later married actress Geraldine Fitzgerald.  

     It is uncontradicted that greed and arrogance of the business owners and the planners of this great ship, were the cause of this horrific loss of life. Choices were made that were reckless. More passengers were lodged on the ship at the expense of the appropriate number of life saving boats.

     If Virginia was the venue where lawsuits would be brought today, then business owners of this ilk would know that Virginia has a limit on punishing corporation greed. Politicians like to term it that such caps means that Virginia is great for business. Punitive damages are limited to an amount of 350 thousand dollars.

     If a company knows that it can make choices that will lead to greater profits greater than a resulting punishment of $350,000, would it surprise you to think that such consideration can go into the equation of the bottom line of a business?

     Every now and then, you will hear about a verdict where the regular damages are significant. Corporations quickly try to call large verdicts “Runaway Juries”. Politicians say that such verdicts are bad for business.

     Maybe, it’s a jury that understands that true loss is more than some number that can be plugged into a computer. Politicians should be required to make hard choices and not welcome a business that ignores the value of life. Maybe, true loss is measured in the connection between each other. Instead of allowing some Spin Doctor for some corporation to heap shame on a jury, for doing its job in trial; The jurors should be thanked for making hard decisions and holding wrongdoers accountable.

     And for pic o’ day, I thought this would just be a bit of real life (or maybe posed real life)

“Wilson, I’m Sorry”

     In  “Cast Away” Tom Hanks plays Chuck Noland, as the only actor on screen,  throughout most of the movie. Somehow, he carries the movie  except for a Wilson brand volleyball. He spends over 1500 days on the island alone, with “Wilson”.

     During the time he is stuck on the island, he contemplates suicide many times; going as far as making a test dummy, to toss off the cliff, as he worked toward his plan to die. Wilson was his only companion, and ultimately impacted his decision to not give up.

     He became so attached to Wilson that he took the volleyball with him on his ultimate escape raft. “They” fought through waves, storms and even whales. At one point, Noland falls asleep to the rocking of the waves and somehow, despite being tremendously secured to the raft, Wilson falls off the perch and begins floating away.

     Noland wakes up and soon realizes that Wilson is missing. He begins to scream, “Wilson, where are you”. Soon, he sees Wilson several yards away in the ocean. Noland, without thought, jumps off the raft to rescue Wilson until he comes  to the conclusion that he cannot swim to “rescue” Wilson, without losing the raft and his own life.

     Yes, I admit it. At that point, I actually felt myself getting a bit choked up as Noland began to sob uncontrollably and apologize for letting Wilson down, and not getting Wilson home.

     In the world of insurance and accident law, loss is evaluated and a worth or fair market value is assigned. Big Business and those that want to restrict access to the Courtroom, constantly talk about restrictions on damages and a certainty of liability and expense.

     It reminds me of the memo that came out in  1973, that was known as Ford’s “Pinto Memo”. At the time, Ford management was dealing with the possible dangers of the Pinto automobile. Information became available that people were dying in crashes, as a result of cars easily rolling over, and fuel leakage/fires.

     The memo dealt with the cost of modification to fix the fuel tank problem. The memo showed that the total estimated cost to fix the cars would be about $11 per car or a total of $137.5 million.

     Then, the memo costed out expected litigation costs and settlement payouts, to crash victims or their families and estates if the repairs were not made.

     It was deemed cheaper not to fix the Pinto; But, instead, just absorb the expense of estimated lawsuit payouts, which was an estimated $49.53 million. By not making the necessary modification, Ford expected to save about 90 Million.

     Big Business is constructed to turn profits for the shareholder. However, the law allows damages that take other factors into consideration,  like loss of enjoyment of life, emotional damages; and, when necessary, punishment damages.

     When politicians talk about making their state friendly to business, by having caps and restrictions to the Courtroom; what they are really saying is that everything should be looked upon as a fixable expense. It is “Ford Memo” thinking. 

     In “Cast Away” the loss of Wilson wasn’t just the loss of a volleyball. There was a loss of companionship. It’s not always what you lose.  Sometimes, maybe consideration should be given to what you are left with.

Carrying Wrenches and Oil Tax Breaks

     Lawrence of Arabia was known was for his exploits on behalf of the British Military, during World War I.  He led desert raids with Arab rebels against Turkish troops, who were fighting against the British. It was basically guerrilla warfare in the desert.

     His exploits against the Turks and his personal account of the battles in “Seven Pillars of Wisdom“,  became the substance of classic literature. There was also a movie made that put his tales of valour on the Big Screen titled “Lawrence of Arabia“.

     During the war, he formed great friendships with some of the Sheiks who had fought with him. After the war, he brought them back to Europe so that they  could show their appreciation, for their support as Allies  in the battles against the Turks.

     The Sheiks had a wonderful time, making appearances before the Joint House of Commons and Parliament; and then Lawrence of Arabia and the Arab Sheiks had an audience with the Queen.

     He then took them to Paris to see the Arch of Triumph, the Louvre, and Napoleon’s tomb. After all these events and on their last night in Europe, Lawrence decided to ask them what had impressed them the most. Plus, he wanted them to tell him, what they wanted to take back to their desert homes, as a gift of appreciation from him.

     Legend has it ( Legend because if you google “Lawrence of Arabia and faucets”, you will see this story many times, without source) that they took him back to their hotel , where they had wrenches already hooked up to their hotel room faucets.  “We need the faucets to take back to our homes,” they explained. ” If we have them, then we will have all the water we want.”

     This past week, Oil executives went before Congress, to explain why their companies need the oil tax breaks. They testified that the current billions in profits were not related to a consideration of the elimination of these tax “incentives”.  Instead, eliminating these tax “incentives” would threaten US that would be moved overseas; that legislation to close the loopholes on these breaks is  “Un-american“.  

     The Chevron CEO told Congress that Oil companies should not be singled out. He explained that “I don’t think Americans want shared sacrifice; they only want shared prosperity”.

     The blogs that I write are usually based on some law or legislation. At least I work it in somewhere, even if I have to go deep into the legal weeds sometimes. That’s why I think that the tax break discussion is relevant to a legal blog.

     When I see the arguments for and against the tax breaks to Big Oil, It seems to be politically divided. It’s not really a division of party as much as a division of which politicians may gain or lose.

     Last week, I listened to Senator Orrin Hatch (R-Utah) argue that these tax breaks, amounting to about a 4 Billion dollar loss to the US Treasury, should not be eliminated. His reasoning was that we should not just single out the Oil business, just because of their profits.   When I heard some of the quotes from both sides, it reminded me of the story of those men with wrenches.   

     It was silly to think that a faucet would solve the need for water in the desert. I’ll leave it to you to decide; Is the group that is for or against the tax breaks for Big Oil, carrying the wrenches in their hands?

The Back Room Stuff

     A man called a repairman to his house. He had a leak in his roof, right over the kitchen table. When the repairman came, he asked, “When did you notice the leak in your kitchen”. The man replied, “Last night, when it took me two hours to eat my soup”.

     The story reminds me of the back room politics that surrounds the national health care debate. If you watched the President’s State of the Union address the other night, you might have noticed that he indicated that he  was open for compromise, to work through the differences in the health care law.  

     That brief mention came as a result of some of the leaks that we are hearing from the back rooms of the halls of Congress. The debate on health care reform has brought out the tort deformers and Big Business.

     There are many ideas  being floated for compromise, to try to get the Health care legislation sailing through. Some include ideas of medical malpractice limits, which President Obama has already indicated that he would be willing to consider. In fact, during his Presidential campaign, he had suggested that there needed to be reforms relating to the frivolous lawsuits that are brought against doctors.

     There are many other “reform re-runs” that are being brought up again. Such as, there is discussion to limit Pharmacuetical liability and to introduce limitations on how long a person has to file an injury lawsuit. “One leak” on the idea of filing would include putting a limitation of one year to bring a lawsuit. That way, Big Business could better quantify what exposures they may face, relating to bad products.

     I blog on two other items that have leaked out. Those are the concepts of “Loser Pays” and the idea of limiting lawyer contingency fees.

     On the surface, it seems that those two ideas, as amendments or compromisees to the health care legislation, should have plenty of momentum. Who doesn’t think that “Loser pays” would help stop frivolous lawsuits?

     Limiting contingency fees is an easy argument. Most people don’t like lawyers and think that law is a license to steal. So, when there is a discussion of limiting contingency fees, there probably is little concern from the public.

     For the purposes of looking at that; instead of arguing against it, let’s look at the alternative. Whenever there is an argument to limit contingency fees to lawyers, you will notice that there never is a movement to limit  how much a defense or corporate lawyer can charge for the defense. Basically, what Big Business and their pushers are saying is that, “we want to limit your representation but our lawyers have no limitation”. If they can affect the opposition, they can reduce responsibility.

     The same argument applies to “loser pays”. If you look closely, they always want to put the responsibility on the party bringing the action. If you are going to introduce legislation like that, then why not make it apply both ways? Whoever loses should pay the costs and attorney fees of the opposing party. Believe me, you will see them scurry when that is proposed.

     That is just a brief discussion of some of the leaks from the back room. I guess a greater question would be, what does that really have to do with health care? The spinsters can figure out an answer to that because Big Business has no limitations on what they can pay.

Egg On The Face

     My grandmother used to make a little extra money by selling eggs in her kitchen. Of course, those days are remembered as the “good old days” because she was able to sell her eggs with a simple sign in the yard, after collecting them from the chickens that were in the back yard.

     Back then, whatever was written on the chalk board was the price on the eggs. Of course, the house was unlocked and even if no one was there, you just came in, left your money and were on down the road. You couldn’t buy a Big Gulp or  a prefabricated cardboard burritos;  But, of course, no one needed a 7-11 back then and you knew the price and where the eggs came from.    

     Apparently, not only have times changed in the simplicity of buying eggs; Now, fewer Eggs must mean a greater profit. At least that is what is being reported   in Pennsylvania.

     Giant Eagle filed a civil suit against 21 egg industry firms and organizations. It is alleged that egg producers entered into a “backroom” agreement to reduce their hens and consequently reduce their eggs.  It apparently was a scheme that was hatched (couldn’t help myself) to price fix the eggs, under the guise that it was meant to protect the chickens.

     The industry’s big trade group is called the United Egg Producers. They argue that this complaint has no merit and that it is basically just a creation of lawyers. The trade organization’s spokesman said that, ‘there are lawyers who are glad to take on additional business”.

     I’m not sure that his defense of the lawyer excitement  over egg lawsuits, is going to sell very well. I get it that the oil industry tries to control pricing,  but I guess that greed can get into the chicken coop too. It sure makes me miss those days of just putting the change in the bowl and taking a dozen eggs out the door.

Jumping Ship

    I am hitting the exits; Take this job and shove it; Elvis has left the building; I’m Papa John and I am delivering my resignation; See ya, wouldn’t want to be ya; I am jumping ship.

     You can tell by my previous paragraph that I am getting a bit carried away. The above is a  collection of sayings that could be said by someone who is “proudly” leaving their place of employment. Yes, I did throw a few of my own creations. 

     “Jumping Ship” has come  to be known as a term of someone taking control of their destiny. It has even been used to indicate the actions of Democratic candidates, when being associated with House Speaker Nancy Pelosi.  The real basis is connected to such work as the 19th Century English coal trade.

     During the 19th century, hundreds of seaman lost their lives, while sailing on ships that were dangerously overloaded. At that time, there was no regulation as to how much coal  that could be put on a ship. As a result, the more coal, the more profits. Thus, ships would be loaded up to the deck line and make sailing a life or death propostion.

    It is reported that in 1873, 411 ships sailing from England sank, and took countless men to a watery grave. Despite the sight of an overloaded ship, once a seaman signed on for work, he could not back out or he was charged with “jumping ship”, which was considered a criminal offense. For the profit seeking owners, they won either way. If the coal made it, they made money; If the ship sank, insurance paid them for their losses. The sheer numbers showed that “corporate England” did not care about these sailors or these “coffin ships”.

     Samuel Plimsoll   was a British politician who campaigned and is best remembered for developing the Plimsoll Line.  He introduce legislation to get restrictions on how much coal could be shipped. Not surprisingly, he faced great pressures from ship owners and even the British Prime Minister of that day, Benjamin Disraeli. The ultimate adoption of his measurement “Plimsoll Line”, as well as the overall Merchant Shipping Act, is credited with saving many lives.

     I have given you a brief history and example of when government regulation made a difference. Today, politicians are jumping on the theme of “less government”, as an excuse to eliminate government regulations.

     I received a copy of this months Costco “My Business”. It has 3 pages of small business political ads. The premise,  in reaching out to people like me,  is to encourage voting for pro-business candidates. On its face, that sounds like real free enterprise. However, if you look closer at each of these ads, you will notice the words, “Do you stand for an end to burdensome, intrusive government regulations?”

     I just saw a news story about the FDA announcing a significant restriction in the the allowance of prescriptions for the diabetes drug,  Avandia. The FDA is “regulating” this drug, to only be prescribed in limited indications, when no other treatment options exist. To date, 47,000 heart attacks have been attributed to Avandia.  Already, the drug has been banned in Europe. The manufacturer has been fighting restriction and recall.

     A fine line exists between what is right for business, and what is government intrustion. Unfortunately, when profits are at stake, business has been shown to put profit over safety. ” No government” sounds good from a bully pulpit. Unfortunately, there are still those that have that 19th Coal shipping mentality. Next man up for the profit of the company.   Sometimes we better be careful, because we just might get what we ask for.

The Letter Power

The cracking of the top of the banana set off the chain reaction. The sound of eight paws running down the stairs sounded like a national geographic special. The two dogs came running to the kitchen table and began to beg for a piece of banana. The dog owners explained to me that their dogs craved bananas like a steak, when they heard that peel.  I could see it but could I believe it?

I received a letter from the Governor-elect of Virginia, with a promise of what was going to be accomplished in the next four years. The letter said, "more jobs, less taxes and less litigation". More jobs and less taxes sound great. Of course, politicians usually say that and explain that the formula to cut taxes is to cut wasteful spending. The last part of the quote, "less litigation", caught my attention. Was that a buzz word for taking away the right to hold "at fault" parties accountable? What was I to believe about this letter?

Congressman Pete Sessions (R-TX) recently sent a fund raising letter that mentioned another member of the US House of Representatives. In trying to raise funds, he addressed the speech of Congressman Bruce Braley (D-IA), who had taken the House floor and asked that consideration be given to the $17 to $28 Billion that was being spent annually, to treat those injured by medical neglect.The medical professionals originally responsible had passed on the cost now, to the tax payer or insurance carrier.

  Congressman Sessions' letter attacked Braley by writing, "Pelosi even tapped Rep. Bruce Braley, a former trial lawyer who made a living from filing frivolous lawsuits, as the Democrat to voice opposition to tort reform".   I'm not sure how a lawyer could make a living by filing frivolous lawsuits anymore than a grocery store that stays in business by selling green meat.

In some of these fund raiser and political letters, I suppose it's almost like a crack of the banana that causes some to come running. Maybe certain statements really cause "big business to reach for their wallets to finance lobbying efforts. They hear the words tort reform or limiting lawsuits and it immediately gets them thinking that they have grabbed on to some steak.

When I was in high school, I remember a band that played in the gym, that was a collection of characters called "Jimmy and the Bananas, the band with 'a peel'". That still gives me a good laugh. Some of the political letters make me laugh too. Shouldn't everyone be laughing?  

  

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