Seat Belt Recall

May 4, 2008

Toyota Motor Corp. has recalled 90,189 Highlander SUV’s because third-row seat belts may not lock in some child-safety seats.  So far, there have been no complaints of injuries as a result of the defect, but what if there had been?

The U. S. Chamber of Commerce talks about frivilous lawsuits and the need for extreme tort reform measures.  Those measures infringe upon the rights of individuals who are seriously injured or killed as a result of defects such as these.  Had one of these seat belts malfunctioned and led to the death of a child, shouldn’t Toyota be held responsible?  Toyota wouldn’t be responsible because they intended to kill someone, but our laws say that if you put a product into the stream of commerce and that product is defective, you are liable for the damages you cause.  That’s not frivilous.  THAT’S THE LAW!!!!

Take Another One Away

May 2, 2008

Well, another judge has taken away a jury verdict.  Where’s the outrage?  The whole point of juries is for twelve individuals to come together to make a unified decision.  Instead, Circuit Judge William Gordon has decided that the twelve individuals who heard the Ray Keller v. NCAA case in Jackson County were wrong.  Instead, Judge Gordon decided that those twelve people decided the case based upon passion and prejudice, not the law and the instructions which Judge Gordon read to the jury.

How is Judge Gordon qualified to decide what was in the head of the twelve jurors without interviewing each and every one of them?  Aren’t we supposed to assume that the jurors can understand the instructions as given and apply the law to the facts which were presented in trial?  Passion?  Prejudice? Those are subjective elements which could be argued are involved in every case.  But, Judge Gordon surely instructed the jury that sympathy, passion, and prejudice are factors which are not to be considered in their decision.  Consequently, how can he determine that they were factors in their decision?

The jury decided that the NCAA owed Keller five million dollars, two million compensatory and three million in punitive damages.  Who are our judges to decide that the twelve jurors are wrong when the judge is the one who instructs the jurors in the first place?  However, this story is not over.  Keller and his attorney, Archie Lamb, will most certainly appeal Judge Gordon’s decision, and maybe the Supreme Court of Alabama will see fit to side with what our founding fathers wanted:  twelve individuals coming together as one to make a sound, unanimous decision.

We constantly hear about tort reform and runaway juries.  Which is more troubling:  a “runaway” jury of twelve individuals coming to a unanimous decision or one individual making his own decision?  Who is more likely to be influenced by outside sources:  twelve individuals or one person?  The answer is clear which is why our founding fathers left these decisions to twelve jurors.

Juries Out of Control Again

April 4, 2008

Only the big verdicts make the front page.  In today’s Birmingham News (April 4, 2008), there is a side article in Section C (Money) which discusses some Birmingham lawyers who handled a Ford case in Rockingham, North Carolina.  The story was basically a public relations story for Huie, Fernambucq & Stewart LLP and its attorneys, Alan Thomas and Gordon Sproule

The case involved products liability claims against Ford Motor Company for stability defects in a Ford Explorer Sport and defective seat belts in an F-250.  As a result of the alleged defects, William Lynthacum and Randy Shannon were killed.  The Plaintiffs sought $19 million in damages as a result of the defects.

The verdict?  According to the News, “[t]he 12-member jury found both vehicles safe and non-defective after two hours of deliberation.”  Why isn’t this on the front page?  If the jury had given $19 million, it would have made front page news.  Why is it news when it’s a big verdict, but it’s not news when it’s a defense verdict?  Which is more newsworthy:  (1) that a jury didn’t compensate the estates of two dead individuals, or (2) that a jury gave an award of $19 million against a large corporation?

Clearly, newspapers are big business, and therefore, they seem inclined to go with the tort reform flow.  This type of reporting shows how skewed the news is and the propaganda which is put out by tort reformers, big business, and insurance companies.  Consequently, when a jury renders a defense verdict such as this, it’s not put out to the masses, and tort reformers don’t come out to discuss the defense verdict.  I wonder what would have happened had it been reversed? 

Defective Seat Belt

February 28, 2008

The Orlando Sentinel has reported that in West Palm Beach, Florida, a jury has awarded a family $11 million due to the ejection of their 25 year old son from a 2000 Mitsubishi Montero SUV.  Scott Laliberte was ejected out of the rear window even though he was belted on the passenger side.  According to the family, the seat belt in the Montero SUV was defective.

What really led to the verdict was the fact that Mitsubishi released a new version of the vehicle halfway through the 2000 model year to correct the seat belt flaws.  Unfortunately for purchasers prior to the new release, Mitsubishi did not tell them of the problems.  As a result, people such as Scott Laliberte were not protected from the defect.  According to the article, “Mitsubishi’s reputation has been battered by a scandal about the systematic cover-up of auto defects that resulted in massive recalls.  The scandal surfaced in 2000, when the company acknowledged it had hidden defects for decades, secretly repairing them without proper recalls despite reports of dozens of accidents.”

Why do we have civil lawsuits and juries?  We have them so that companies understand that if they do not do the proper thing, they will suffer the financial consequences.  Unless juries render awards such as this $11 million, the rest of the country will not hear about it, and other automotive manufacturers will not hear about it.  When they hear about these awards, they will hopefully change their ways.

Our Judicial System

February 28, 2008

Former Justice Sandra Day O’Connor recently wrote about our judicial system in Parade Magazine.  Below is a copy of the article.  Justice O’Connor mentions Alabama’s election of Chief Justice Sue Bell Cobb.  I totally agree with Justice O’Connor that our system has fallen pray to lobbyists and money.  Consequently, many individuals and attorneys wonder if they are getting a fair trial.  Such a question should never enter someone’s mind when going to court.  All judges should be fair and impartial, and when we start questioning whether our judges will be fair and impartial, democracy ceases to exist as we know it.

How To Save Our Courts


To find out more about the court system in your state, visit www.judicialselection.us. ***
In my work as a Supreme Court justice, I was required by the Constitution  to fairly and impartially apply the law-not the law as I wanted it to be but the law as it was. Now, as a private citizen, I am anxious about the state of the judiciary in America.

I am not concerned about particular judges or cases, nor am I concerned about the judiciary shifting right or left.What worries me is the manner in which politically motivated interest groups are attempting to interfere with justice. 

The rule of law in the U.S. includes statutes and constitutional provisions. It also involves precedent, which is a previous judicial ruling on a matter. A judge typically defers to precedent. Like good cooking, good judging requires taking ingredients and procedures used successfully in the past and adjusting them to the case at hand. New legal recipes-or rules-can have major ramifications. So if a judge comes up with a new way to apply the law, her opinion may be reviewed by state or federal appellate courts to ensure that it is a correct interpretation of the law. If it’s not, it’s overturned.

Thus, our judicial system has safeguards to ensure consistency and preservation of the law. But it is threatened when judges ignore settled law and make decisions according to personal or public preferences.

The judiciary currently is experiencing unprecedented pressure from interest groups to make decisions that are based on politics. In Washington, D.C., we hear a lot about federal judges, and they have a critical role in upholding the Constitution. But having been a state judge and a state legislator, I know that the vast majority of law is state law. Ninety-five percent of litigation takes place in state courts. Many legal issues are primarily decided there, including divorce, property rights, employment law, product liability and medical malpractice.

Political pressure is a big problem in a number of our state courts. More than 89% of state judges go through some form of election process. Many of these elections recently have become full-fledged political battles, fueled by growing sums of money spent by candidates and special-interest groups to attack, defend and counterattack. 

The money can be spent in polarizing ways. When Bill Cunningham was running for the Kentucky Supreme Court in 2006, one opposing campaign ad implied that he was responsible for letting six rapists out on parole. It said: “One had been on parole for only 12 hours when he raped a 14-year-old and made her mother watch.”

This story was very misleading. Cunningham, then a lower-court judge, did rule to change the sentences of several rapists from life without parole to life with the possibility of parole, but these men all stayed in jail. And the rape referred to in the ad occurred 20 years earlier, before Cunningham was even a judge.
 
Sue Bell Cobb remembers speaking to a reporter the day after she won the election for chief justice of the Alabama Supreme Court in 2006. Chief Justice Cobb expected to be asked how it felt to be the first woman in that job. Instead, the reporter asked: “How does it feel to be the victor of the second most expensive judicial race in U.S. history? How will you convince the people of Alabama that the campaign contributions you sought will not impact how you rule? How can we convince people their courts are not for sale?”

I imagine she answered much like Illinois Supreme Court Justice Lloyd Karmeier did after he won the most expensive judicial election in American history in 2004. That race cost the candidates $9.3 million, a sum greater than what was spent in more than half of the U.S. Senate races that year. Karmeier said of the money: “That’s obscene for a judicial race. What does it gain people? How can anyone have faith in the system?”

Good questions. When so much money goes into influencing the outcome of a judicial election, it is hard to have faith that we are selecting judges who are fair and impartial. If I could do one thing to solve this problem, it would be to convince the states that select judges through partisan elections-that is, when a Democrat and Republican run against one another-to switch to merit selection instead. Under this plan, currently used in states such as Colorado and Nebraska, an independent commission of knowledgeable citizens recommends candidates to the governor, who appoints one of them as judge. After several years on the bench, the judge’s name is submitted to the electorate, who vote on whether he should keep his position. This method decreases the importance of money and politics in the process while still allowing voter input on retaining each judge.

I believe the long-term solution to the politicization of the judiciary process is education. Children, voters, policymakers and lawyers all should be informed about the importance of a fair, impartial judiciary. Judges should write their opinions in plain English so that the public can understand what the law is.

You also should educate yourself, an especially important task if you live in one of the 39 states that holds elections for judges. Take these steps:

• First, learn about the candidates. That you agree with a person’s policy positions is irrelevant to whether he or she would make a good judge. Evaluate them based on their ability to be fair, impartial and competent. Look for unbiased sources-many states offer voter guides and performance evaluations.

• Second, be suspicious if a candidate makes a promise about how he or she would rule in a particular case. Every case is different and should be judged according to how the law applies to that situation. If a judge decides a case based on a campaign promise, he or she has not upheld the pledge to be fair and impartial.

• Third, vote. Judicial elections tend to garner little attention. This is increasingly problematic, because interest groups often can be the main source of information. The only way to counteract this is to research the candidates, know where your information is coming from and vote.

I’m working with Georgetown University and Arizona State University on two programs on this subject. One is called Our Courts and will be an online civics experience for children. They’ll be able to step into a judge’s shoes so they can better understand what he or she does. The other program, the Sandra Day O’Connor Project on the State of the Judiciary, will create a dialogue between experts and law practitioners on the court system and report on the best ways to safeguard its role.

I hope I can make a lasting contribution to protecting our courts. We must preserve our system of government, a system for which I have the utmost respect as I reflect back on my Supreme Court career.

What To Know About Our Courts

Courts in the United States are divided into two separate systems: federal and state.

The U.S. Supreme Court is the highest federal court in the country, followed by 13 U.S. Courts of Appeals, then by 94 district courts. Federal judges are appointed by the President and serve until they retire or die.

State court systems vary; each state structures its courts in a slightly different way. In 39 states, some or all of the judges are chosen through elections. To find out more about the court system in your state, visit www.judicialselection.us.

Sandra Day O’Connor served as an associate justice of the United States Supreme Court from 1981 to 2006.

Superbowl Rematch – Rams vs. Patriots

February 16, 2008

The St. Louis Rams and New England Patriots are apparently going to replay the 2002 Superbowl, but this time, the game will be in the courtroom.  Accoring to an article in the Birmingham News, former Rams player, Willie Gary, and others have filed a $100 million lawsuit against the Patriots, the team owner, Robert Kraft, and the Patriots head coach, Bill Belichick.  The lawsuit stems from the alleged videotaping of Rams practices before the 2002 Superbowl which the Patriots won 20-17.

This is a dangerous road to go down:  taking games from the field to the courtroom.  This is also going to be an extremely difficult case to prove.  Even if the allegations of videotaping are true, who is to say the Patriots would not have won the game anyway.  This also raises the specter of cheating in our professional sports. 

With these issues in the National Football League (NFL), the controversy over steroids in Major League Baseball (MLB) and the scandal involving the referee in the National basketball Association (NBA), pro sports in the United States are taking a major hit.  Notwithstanding these “hits”, the public continues to watch and attend games.  As a result, advertisers continue to pay the networks for commercial time, the networks continue to pay billions of dollars to the pro leagues for the rights to televise the games, and the owners continue to pay millions to the players. 

Because of all the money involved, there are huge incentives to cheat.  Obviously, you make more money when you perform and win.  So, we are seeing allegations of cheating at all levels:  players, officials, coaches, and maybe even owners.  Where will it end?  Who knows?

Bayer AG and 60 Minutes and Trasylol

February 16, 2008

Cory Watson Crowder & DeGaris has filed numerous lawsuits over the drug Trasylol.  The drug is manufactured by Bayer AG, and it is used to prevent excessive bleeding during coronary artery bypass graft surgery.  According to the Birmingham News, the lawsuits involve allegations over individuals who have suffered permanent kidney damage after being given the drug. 

Apparently, the FDA suspended the marketing of Trasylol in November, 2007.  However, 60 Minutes will report that “22,000 additional lives could have been saved if the FDA had taken action to remove the drug from the market in 2006.”  Brian Turner, an attorney at Cory Watson Crowder & DeGaris, is quoted as saying, “[t]his drug, which most patients never knew they received during their surgery has caused significant injuries and loss of life due to severe and possibly life-threatening kidney problems.”

These types of cases are difficult due to the balance between attempts to improve medical care and putting dangerous drugs on the market without adequate testing.  The inherent problem is the fact that drug makers are in business to make a profit, and they are competing with other drug makers.  Consequently, they race to get drugs to market for fear that their competitors will beat them.  The “side effects” of such competition can be dangerous drugs on the market before they are adequately tested.  These types of lawsuits make such companies reassess what is important:  racing to get the drug to market to make a profit or making sure it is safe for the public.  Which would you say is more important?

If you would like more information on this or think you might have a potential claim, please contact our firm at jon@lewis-attorneys.com or (888) 295-7409.

Macon County Verdict

February 16, 2008

A jury awarded Ronnie Lawrence $1.5 million for a fall which occurred at VictoryLand-Macon County Greyhound Park in Shorter, AL.  Mr. Lawrence slipped on water on the floor of the bathroom.  The water came from leaking bathroom fixtures, and apparently, it was a problem which the facility knew or should have known about but failed to correct.  As a result, Mr. Lawrence fell and suffered multiple spinal cord injuries.  The verdict was for $1 million in compensatory damages (to compensate Mr. Lawrence for his injuries, lost wages, future lost wages and future care) and $500,000 in punitive damages (to punish VictoryLand and send a message to other establishments).

Congratulations go out to Jock Smith, Brian Strength, and Champ Lyons, the attorneys who represented Mr. Lawrence.  This type of case is commonly called a “slip and fall” claim, and they are very difficult to prove in Alabama due to contributory negligence (if the person bringing the claim is 1% at fault, they cannot recover).  These types of verdicts are necessary in order to make other public establishments accountable for failing to correct known problems.

Exxon Finally Pays (albeit not enough)

February 5, 2008

According to an Associated Press report, Exxon Mobil has finally paid its debt to the State of Alabama.  Exxon paid $121.5 million as a result of the lawsuit brought by the State of Alabama over natural gas royalties.  The case had been tried twice to two different juries and appealed twice to the Supreme Court of Alabama.  Both twelve member juries unanimously ruled in favor of Alabama, and the final judgment was for $3.6 billion dollars, but the Supreme Court of Alabama reduced the verdict to $51.9 million.

After the reduction, the Supreme Court of Alabama remanded the case back to the Montgomery Circuit Court for a determination of the interest accrued during the appeal.  Judge Tracy McCooey made the final determination as to the amount.  The attorney for the State, Jere Beasley, argued that the amount should be $20 million more, and that issue is reserved for appeal.

Beware the Fees

February 3, 2008

According to a report in Bloomberg News, hidden fees in 401(k) plans can sap your earnings for retirement.  Many times there are fees in these investments which are never openly disclosed to the employee/investor, and the employee/investor never sees them in statements or reads about them in disclosure documents (who could read all of that fine print anyway?). 

What are these fees for?  Record-keeping, legal services, toll-free telephone numbers, office rent, theatre tickets (yes), trips and fancy meals for money managers, and trading commissions.  The U.S. Department of Labor lists 17 distinct 401(k) fees.  If these fees total one percent (1%), they can reduce returns by fifteen percent (15%) over thirty (30) years according to Stephen Butler, president and founder of Pension Dynamics Corp.  Greg Kasten, a financial planner at Unified Trust Co. states that the most an investor should pay for a 401(k) is one percent (1%). 

When fees are not disclosed to investors, it is like stealing investors’ money.  This is why arbitration hurts.  When NASD arbitrators decide claims brought by investors over such misrepresentation, it is like the fox guarding the henhouse.  Wouldn’t these companies be more accountable, if they thought they might have to explain to a jury why the fees for travel and entertainment were hidden?  I suggest they would.  As it is, the National Association for Securities Dealers (NASD) arbitrates investor disputes.  Which would you rather have if you paid excessive fees on your hard earned money, a jury of your peers or an NASD arbitrator?


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