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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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What Do Those Signs Mean?

When I saw this picture, I knew I had to start the blog with it. I think I live by this mantra!

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We signed up a new client yesterday, who was hit by a truck while leaving a grocery store parking lot. The grocery store has signs hanging on several of their poles that say, “These premises are under closed circuit camera surveillance for your protection“.

Immediately, our investigator walked into the store to ask about the surveillance video, to help us prove our case. The manager just smiled and then admitted that they really didn’t have any cameras, just the signs. I guess it’s a bit like having a “Beware of Dog” sign… without owning a dog.

The “surveillance signs” seem like a good metaphor to lead into a quick discussion of some legislation being debated in Congress. H.R 1215 has been introduced by Representative Steve King (R-Iowa). It is known as the Protecting Access to Care Act of 2017. For the purposes of this blog, I won’t get into an entire discussion of  the pros and cons of Obamacare or providing health care for the entire country. That would put us into a blog of sleepy time. Instead, I am just going to mention a few highlights of this bill.

The title of the bill relates to health care, but amendments also include (H.R. 382) which indicates the bills intent to “provide improved medical care by reducing the excessive burden the liability system places on the health care delivery system”. That has a special meaning to insurance companies.

Here’s some items this “health care” bill includes: SKIP THE NEXT PARAGRAPH IF YOU DON’T FEEL LIKE DETAILS AND JUMP DOWN ONE PARAGRAPH TO THE REAL BLOG THOUGHT!

(Or just meander through)

A. A federal $250,000 non-economic damage cap on lawsuits to override state laws; B. elimination of naming doctors and drug companies in a single lawsuit that involves a claim relating to a prescription; C. establish a statute of limitations federally that restricts filing a lawsuit after 3 years, even if any state has a longer statute of limitation or even if the person injured did not know that they were hurt from something; a restriction of a percentage that a lawyer can charge for representing someone (although, there is no restriction on what can be charged by lawyers to defend the claims), D. and an elimination of joint liability for economic and non-economic damages in the same claim.

NOW HERE IS THE KICKER TO THIS BILL FOR OUR BLOG DISCUSSION!

This bill would require PLAINTIFF experts in any malpractice case to meet the following requirements: First, an expert would have to sign an affidavit 90 days prior to filing suit to outline the areas of malpractice by the defendant. Second, the expert must be in the same field of expertise as the defendant. And Third…. and the real amazing item to me: Any expert must be from the same state as the doctor who committed malpractice, or else must be in a contiguous state to the state where the malpractice has been supposedly committed.

Why am I focusing on the Third item, out of all the things I have mentioned? For instance, under this bill, a doctor at Duke, who might even be chairman of the department, cannot testify as an expert in a case in Pennsylvania.

Why do they do this? To restrict the ability to prove malpractice. If an insurance company can restrict experts that can be hired and restrict what lawyers can be paid, then they can restrict malpractice claims. They want to make it hard to hire an expert. And, they know how hard it is to get a doctor to testify against another doctor that they know, in the same state.

SOMEHOW, THIS GOES UNDER THE HEADING OF PROVIDING GOOD HEALTH CARE WITHOUT FEAR.

That’s why I say that those signs hanging in the parking lot are a good metaphor for such legislation.  I just wanted to give you something to think about. No wonder people want to drain the swamp!

And finally; yes I admit it, I do enjoy cake which causes me to post cake pictures:

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The Next FDA Commissioner

Conflict or Qualified? The NY Times just did a story on the recent Presidential nominee to head the FDA. The title of the article tells the summary of the story, F.D.A. Nominee Califf’s Ties to Drug Makers Worry Some.

The article starts out with a meeting in May 2014, and presentation that Dr. Robert M. Califf gave to a group of biomedical researchers,  pharmaceutical lawyers and industry experts.

His PowerPoint slides showed the importance of speeding up the pace of biomedical innovation by transforming research. Near the end of the presentation, one slide was put up that indicated one barrier to that pace: Regulation.

At the time, no one reacted to that one slide. Now, it has garnered some attention because this Cardiologist/nominee will potentially be the “Police Chief” of medications that get approved and make it to our pharmacies.

He is a renowned clinical researcher who is unquestionably qualified to lead the agency. On the other hand, he will be in charge of an agency that regulates what is responsible for about a quarter of every dollar that we spend.

This agency is now facing such issues as whether/how to regulate electronic cigarettes. Dr. Califf’s previous job was heading up Duke University’s research center, which received more than 60% of its funding directly from pharmaceutical companies. Does that make him too close to them and create a conflict; or does his familiarity with the industry make him more qualified to regulate it.

Dr. Califf personally received $215,000 as a consultant from drug companies from 2009-2015. As a side note, several years ago Frank Luntz did research on the term drug companies and advised them to start calling themselves pharmaceutical companies. Drug Company sounded bad to the public. More on that in his book Words That Work: It’s Not What You Say, It’s What People Hear.

“Pharmaceutical Companies” have always been known to have great ties to government while employing powerful lobbyists. In 2002, the Homeland Security Act that we all knew was going to make us safe as it was signed into law… also contained a provision buried deep in the legislation that protected Eli Lilly and a few other big drug companies against  lawsuits by parents who believed that there children had been harmed by thimersol.

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    So, the question really remains, when is regulation protective and when is it too restrictive? Let’s hope that Dr. Califf knows the balance. As one professor who worked with him observed, “How does he think? We won’t know until we see how he behaves.”

 

 

And for pic o’ day, a bit of surveillance:

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More Than Employment Cheerleader

The announcement came though Executive Order of the Governor. Ban the Box in all state employment applications.(Richmond Times-Dispatch)

When I saw the announcement to ban the box, I had no idea what it meant. Then I learned that state employees will no longer have to indicate on their employment applications whether or not they have been convicted of a crime.

According to the Governor, the order is supposed to remove a current barrier of employment for anyone who has not applied because of a past crime. According to the Governnor’s spokesman, Virginians who have done their time and paid their price should not be excluded from state employment. It means “forgiveness and second chances”.

I assumed that this meant that it was basically an order of encouragment. “Don’t be afraid to apply”. That Human Resources would still do a criminal backround check.

Like buying a chicken rotisserie from an infomercial… but wait, there’s more. The caveat. The order states that a background check can only be conducted after a prospective employee has been determined to be qualified and is being considered for the job. Basically, getting through the door and being considered for hiring. Maybe the perverbial phone call that says, “You are now one of three still being considered”.

One legal note on state law regarding employment for the state. This does not apply to applicatons for state jobs that involve money or the Virginia Department of Alcohol Beverage Control. I almost feel like inserting a punchline there.

For positions categorized as state “sensitive” such as state troopers, child care and corrections and prison officers, background checks will still be required. A waiver will have to be signed for those to be conducted.

Does this mean that child molesters are now able to work at Medical College of Virginia hospital? That computer hackers and identify thieves will be working at DMV?  According to the Governor… No. It just means that individuals convicted of a felony are not automatically disqualified from applying for state jobs.

Does this mean that private businesses will soon be subject to this change in hiring because of a state law change? Well, such companies as Walmart, Home Depot and Target have already “removed the box”. However, I’m guessing that Virginia still does not want to upset the apple cart of being considered as friendly for business and will not take the next step to apply this to all private businesses.

This same bill had been presented in the Virginia legislature this past session. It passed the state Senate but got defeated in the House. That’s why the Governor took the step of issuing the Executive Order.  Virginia joins 14 other states who have embraced this second chance employment opportunity in “banning the box”.

One final thought. More than 650,000 are released from prison nationwide every year according to the Department of Justice.

 

And for pic o’ day, a high five for Monday!

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The Virginia General Assembly

Mark Twain said, “No man’s life, liberty, or property are safe while the legislature is in session”. That saying always makes me smile and then nod.

I start the blog out with that because I have asked Brian Sullivan to do a summary of the past Virginia General Assembly session. I’ll let you decide if you think Mark Twain was right. On to Brian’s analysis:

 

This past January and February, the Virginia General Assembly met and considered nearly 3,000 bills, resolutions and budget amendments.  Of those, the House passed 456, and the Senate passed 344; for a grand total of 800 new laws!  Well, slightly less since some are doubled; but it’s still a lot and most of these go into effect on July 1st.   So you better get to reading!

Fortunately, the vast majority of these will have little to no effect to you whatsoever.

For example: House Bill (HB) 1545 and Senate Bill (SB) 685 removes the word “inspection” from references to the United States Postal Inspection Service in several criminal procedure sections.  Exciting, right?

Other new laws may effect you, but almost unnoticeably; HB1440 & SB899 allow the ABC to round the final price of each container of alcoholic beverages it sells to end with a nine (9).  Under current law, the final price may be a multiple of five (5).  So if you’re planning a large Independence Day party, be sure to do your shopping a week in advance to save those 4 pennies!

News coverage for the session has mostly focused on new laws concerning the handling and reporting of sexual assaults on college campuses, ethics reform, budget amendments, and a few others.  Most of the other bills passed are technical adjustments or minor policy changes, others only effecting associations or a small subset of the population.  But there are a few that could be of interest to you.  Let’s take a look:

  • HB1342 & SB1220: These bills expand the law against following too closely to more than just cars.  This now includes non-motor vehicles like bicycles, electric assistive mobility devices, electric power-assisted bicycles, and mopeds.
  • HB1499 & SB1427: Provide that a mother may breastfeed in any place where the mother is lawfully present. Current law only allows breastfeeding on any property owned, leased, or controlled by the Commonwealth.
  • HB1307 & SB1293: Public elementary and secondary schools will no longer be permitted to require parents to provide the student’s social security number.  Instead, an identification number program is being developed.  (goes into effect August 1st.)
  • HB2090 & SB1260: Require new training standard materials and regulation for Restaurants that address food safety and food allergy awareness and safety.

And last but not least:

Of course, depending on what you do for a living or what your interests are, there are potentially many new laws that may directly effect you.  If you’d like to take a look at all the bills that were passed by the General Assembly this year, it’s as easy as clicking here.

And now for our usual blog pic o’ day…

Bear

 

 

 

Regulations… Why?

In 1866, Gideon John Tucker wrote a legal opinion that related to a decision in a will case, “No man’s life, liberty or property are safe while the Legislature is in session”. During the 19th century, statesman Daniel Webster reportedly observed that “Now is the time when men work quietly in the fields and women weep softly in the kitchen; the legislature is in session and no man’s property is safe”.

The Libertarian Party is based on a platform that includes the following platform: “As Libertarians, we seek a world of liberty; a world in which all individuals are sovereign over their own lives and no one is forced to sacrifice his or her values to benefit others”.  They also include the specifics of that platform by further stating that, “We hold that all individuals have the right to exercise sole dominion over their own lives, and have the right to live in whatever manner they choose, so long as they do not forcibly interfere with the equal right of others to live in whatever manner they choose“.

There are a lot of people who are angry at the government. They read the words of Tucker or Webster and nod in agreement. They hear the platform of the Libertarian Party and it makes them want to learn more. That’s because even the word “regulation” sets some people off. They are downright angry at the government intruding in their lives. In light of that thinking, the purpose of this blog is to recognize that thought, but also contrast it with some benefits that have been provided by the government because of laws and regulations.

The National Oceanic and Atmospheric Administration is in charge of the National Weather Service. That agency warns us of hurricanes. In fact, a look-back at a 1900 hurricane in Galveston, Texas, reminds us that it killed 8000 people; making it the deadliest hurricane in our history.

Moving forward to Hurricane Ike that hit Galveston in 2008; Because of the National Weather Service, a network of satellites worked together to provide notice of the impending weather condition. Unfortunately, more than 100 people died during the storm, but over 1 million people were evacuated to safer areas. A government agency had been responsible for saving lives that included requiring people to leave the area, when they were told to leave.

Another regulatory agency is the well-known Food and Drug Administration. It recently rejected painkiller Zohydro, calling it “Heroin in a capsule”. It also recently would not approve an epilepsy drug because it determined that the drug had very serious side effects. In addition, the FDA regulates food to keep microbes out of our food. Food and drugs can’t just hit the market without regulation. We count on that agency to keep us safe.

I could recite the benefits of other government agencies that includes the National Institutes of Health that does important research to fight diseases; as well as the Center for Disease Control, which monitors and targets health hazards.

Thankfully, there are rules that govern our safety. It’s why people in a safe community stop at traffic control signs and signals, even when they don’t see a car coming. They also sit on juries and make people accountable for breaking rules. Just some of the reasons that it’s good to have some government rules and regulations.

DID YOU KNOW that pigs, walruses and light-colored horses can be sunburned? Hmm… should they use sunscreen?

And for pic o’ day, here is some strategy:

Disguise Dog

Virginia Older Driver Restriction

Fresh from the Virginia Senate is a bill that seeks to restrict older drivers. (Pilot Online) By a vote of 30-5, the legislation would establish a law that would require drivers over the age of 75 to face mandatory vision tests. In addition, the license renewal would only extend for five years instead of the current eight.

A bill from the house (HB 771) was previously rejected by the Senate after passing in the House. This version is very similar except that it includes some additional requirements such as the vision testing. So, it appears that it would have a chance to make it to Governor’s desk for signature. Right now, it is unknown whether Governor Terry McAuliffe is a supporter.

This bill balances restricting  driving privileges versus whether this law is necessary because older drivers are more prone to accidents. According to one legislator, do older drivers know to “relinquish the wheel” when necessary.

DID YOU KNOW?

 

Did you know

 

And for pic o’ day:

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Regulations or Business Restrictions?

Governor Nikki Haley of South Carolina, established the Regulatory Review Task Force by Executive Order on February 12, 2013.  She did so to evaluate current regulatons that “are a burden on South Carolina businesses”.

The appointed Chairman of the task force, Mark Lutz, is vice president of a multi-media company that is based in Belmont, Massachusetts. As a former candidate for Congress, he personally lives in South Carolina.  After the first public meeting, Chairman Lutz summarized the intent of the Task Force by indicating that the task force’s biggest challenge is to figure out which regulations hurt business and which help business. (citizensforafreemarket.org)

There is a balancing act between necessary regulations, and some restrictive rules that make it virtually impossible for a new business to even enter the workplace. Regulations can protect citizens and workers or they can serve as a restraint for trade and the creation of jobs.

That is South Carolina’s current thought on regulations effecting business which leads me to the story of Samuel Plimsoll in the 1800’s. It was a time when there was no regulation on the loading of ships.

In 1867, Plimsoll was elected as the Liberal Member of Parliament from Derby. As a British politician, he made it his mission to pass law dealing with the safe loading of ships. At the time, ships were often carelessly overloaded with cargo, causing the ships and crew to ultimately be lost at sea.

On it’s face, it seems sensible that there would be some law or regulation regarding the loading of a ship. It was no secret that lives were being lost. However, there were a number of Parliament members who were also ship owners. They all stood in oppositiion to any law or regulation.

In 1873, Plimsoll was successful in getting a Royal Commission appointed and in 1875, a government bill was introduced. However, Plimsoll felt as though the bill was inadequate as it did not fully address a loading limitation. On July 22, 1875, Prime Minister Benjamin Disraeli announced that the bill would be dropped. Plimsoll lost control and called members of Parliament “villians”. Then, he shook his fist in the face of the Speaker.

Disraeli moved to have Plimsoll reprimanded. Instead, Lord Hartington was able to get the body of Parliament to adjourn for a week to allow tempers to cool. Eventually, Plimsoll apologized. Many believed that the shipowners had successfully killed the bill despite the public feeling like something needed to be done. The following year a bill was included as an amendment in the existing Merchant Shipping Act.

Through Plimsoll’s efforts and some backdoor dealing, a limitation on loading was passed. It was a line that indicated how far cargo could be filled. It became known as the Plimsoll Line. It continues to exist as a mark on the hulls of ships today. A time when the business of shipping needed to be told how much they could load, because they could not govern themselves for safety.

DID YOU KNOW that left-handed people have been proven at being better at multi-tasking than right-handed.

And for pic o’ day, this is a version of being told that “in the old days, we had to walk up hill in the snow, to go to school”.

old pup

Lautenberg: One Man’s Influence

     Dennis Lanier and I were recently talking about an international trip experience. He reminded me that he had sat in smoking as we flew internationally. Every now and then during the plane ride, I would look at his section and barely see him through the haze of smoke. Now, smoking on a plane would look pretty crazy.

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     I have often thought about how thankful I am that no one can smoke on airplanes. Still, until recently, I could not remember how it happened.

How

     Then, I read the obituary of US Senator Frank Lautenberg. His recent passing is a reminder of what one person can do. Lauterberg 

      Senator Lautenberg was known primarily as a liberal Senator from New Jersey. Until his recent death, he was the oldest serving Senator.(age 89)

     He served nearly three decades in the Senate. He was the author of the bill that became law that threatened to withhold federal highway money from states, if they did not adopt a minimum drinking age of 21. Now, all 50 states require a person to be 21 years-of-age to buy alcohol. (since 1988)

     The next time that you board an airplane and listen to a flight attendant reminding you that no passenger can smoke, you can thank Senator Lautenberg for being the driving force behind that law as well. Now, a passenger who is caught smoking can also be fined up to $5,000 and can be arrested when the airplane lands.

     That “no smoking on domestic flights” law permanently took effect on February 25, 1990 , because of the lobbying efforts of airplane attendants and politicians like Senator Lautenberg’s who were willing to stand up against the tobacco lobby.  Those are two pretty important laws that are part of Senator Lautenberg’s legacy.

     For pic o’ day, I am staying with the thought of reward:

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Lawyers in the General Assembly

     The Virginia Lawyers Weekly Blog recently highlighted a statistical piece of news that was discussed at the Roanoke Bar Association meeting, The topic of analysis,  “The Virginia General Assembly need more lawyers”.

     When you just read that sentence, how did it hit you? By the comments at the end of the VLW Blog, it seems that most opinions are based on whether the person posting is a lawyer. First, in considering the need for more lawyers, how many lawyers do you think are currently in the General Assembly? Answer: less than one out of three legislators in both the House and Senate.  Specifically, twenty-nine percent of the legislature are lawyers.

     According to the blog, soon the House Courts Committee will probably be made up of a majority of non-lawyers. Compare that statistic to a sample of bills before that Committee to see if you think it makes any difference in reviewing bills. To find the legislation information, I went to RichmondSunlight.com. It listed the following five bills that have generated the most interest:

  • SB981: Handheld personal communications devices; unlawful to use on school property or crossing, etc.
  • HB1570: Dismissal of action by nonsuit; fees and costs.
  • HB1981: Electronic tracking devices; person who installs, etc., without consent, Class 3 misdemeanor.
  • HB1652: Electronic filing in civil proceedings; certain circuit court clerks may charge an additional fee.
  • HB1584: Digital accounts and assets; enables a fiduciary to gain access

     When considering the necessity of having lawyers in the General Assembly, non-lawyer Delegate Chris Head described why he thinks it’s helpful to have lawyers to “wordsmith” legislation. He cited his recent bill that was designed to make it a criminal offense to sell alcohol to underage customers without first a showing of some identification with “bona fide evidence of legal age”. Under that language, any store clerk could have been convicted, even if they had been fooled by  professionally prepared fake I.D. cards. The language was fixed so as to remove that harsh burden on clerks.

     In the comments to the blog, one person gave a different opinion directly opposite to Delegate Head by reciting the benefits of having less lawyers. As she put it, “when lawyers create the law, they do it in their language, which is not necessarily the language of the land. No wonder the citizen, who must live by the law, cannot comprehend it.”  A reminder that many non-lawyers would be unsympathetic to the call for more lawyers in the General Assembly.

     For pic o’ day, maybe something missing at this workplace???

Construstion

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