Abell Law Blog

Parents' Underinsured Motor Vehicle Coverage Applies to Vehicle Owned by Child

    Underinsured motor vehicle insurance (UIM) coverage that parents purchased applied to the passenger (one of their children) who was tragically killed in a truck owned by another of their children the Kentucky Supreme Court ruled in Williams v. State Farm (No. 2006-SC-000856 decided June 19, 2008).  The key issue, as the Court saw it, was whether the truck was "furnished" to the driver, one of their children who lived with them.  Since it was undisputed that the child owned the truck, the Court concluded that the truck was not "furnished" to him within the meaning of the policy.  Therefore, the Court ruled that the parents' UIM coverage applied. 

Robert L. Abell
www.RobertAbellLaw.com

Nurses Report Staffing Shortages Impact Patient Care

    An American Nurses Association "Safe Staffing" poll of more than 10,000 nurses reports widespread concern that inadequate nurse staffing is negatively impacting the quality of patient care, according to Dr. Kevin Kavanaugh in "Hospitals Reckless to Leave Floors Short of Nurses" published by the Lexington Herald-Leader on June 28.  Of the nurses polled almost 75% reported that staffing on their units is not sufficient, well over half knew a colleague that had left nursing because of concerns for short staffing, and that almost 50% would not be confident in the care provided a loved one by the hospital where they worked.
    Dr. Kavanaugh also reports that, while Medicare regulations require that nursing help be always available for bedside assistance for a patient, well less than two-thirds of the patients responding to a poll by the American Medical Association found such assistance available.  Also, only slightly more than two-thirds of the respondents reported finding their hospital rooms and bathrooms clean. 

Robert L. Abell
www.RobertAbellLaw.com

Fairness of Consumer Arbitration Procedures Questioned

    Business Week reports in "Banks vs. Consumers (Guess Who Wins)" that National Arbitration Forum (NAF), one of the country's largest for-profit arbitration companies courts corporations against consumers by claiming that it will enable credit card companies to markedly increase their recovery rates over their existing collection methods.  Business Week also reports that NAF marketing materials brag that creditors may use NAF procedural maneuvers to tilt the process in their favor.  A Harvard Law School professor testified under oath that she found NAF processes so unfair and biased that she resigned as an NAF arbitrator, Business Week also reports.  Arbitration provisions are contained in many consumer agreements and many consumers unknowingly and unwittingly agree to submit a dispute to be decided by an arbitrator.  There are strong incentives for arbitration companies to favor the corporations that are their best customers.  Ask yourself: what if a judge solicited cases from big corporations by offering them a business-friendly venue to resolve their disputes with consumers and individuals?  Would that be fair? 

Robert L. Abell
www.RobertAbellLaw.com

Food-Borne Illness Case Settled

    As a salmonella outbreak tied to tomatoes has spread into 22 states and the Food and Drug Administration continues to fail to protect the American public, the Associated Press reports the settlement of a food-borne illness case from Milwaukee involving the death of a 3 year old girl from an e-coli related syndrome.  The case involved exposure to tainted meat in 2000 at a Sizzler restaurant in Milwaukee.   Along the way, a trial court judge dismissed the case on preemption ground, accepting the meat producer's argument that it should not be held liable, accountable or responsible because it had complied with FDA regulations in handling the beef.   The lawyer for the child's family described the case "as a study in perseverance."  It is also a case study of how inadequate FDA regulation is in protecting the public and how essential is state tort law in holding corporations accountable to that public.

Robert L. Abell
www.RobertAbellLaw.com

Senator Charges "Criminal Negligence" In FDA's Failure to Protect Food Supply

    As a salmonella outbreak linked to some types of raw tomatoes sickens hundreds of Americans across 17 states, a Republican Senator, Arlen Specter of Pennsylvania, charges the Bush Administration with "criminal negligence" in not moving faster to provide the Food and Drug Administration (FDA) with monies for food protection efforts, the New York Times reports. 
    Last November the FDA released a "food protection plan" but the Bush Administration did not provide any funds for it and did not ask for any money for until Monday, June 9.  This failure Senator Specter informed health and human services secretary Michael O. Leavitt amounted to "criminal negligence" that was "subjecting people to bodily injury and death."  Since 1990 there have been 13 multistate outbreaks of salmonella poisoning related to tomatoes, according to the Centers for Disease Control and Prevention.

Robert L. Abell
www.RobertAbellLaw.com

President Bush Should Support Fair Pay Law

President Bush should follow the recent signing of the anti-genetic discrimination bill with support for passage of the Lilly Ledbetter Fair Pay Act, which would restore the ability of women who are unfairly and wrongly underpaid because of gender discrimination to recover the fair pay they have earned.  That ability was taken away last year by the Supreme Court in a 5-4 decision that disregarded the overwhelming consensus of the intermediate federal appeals courts and a common sense appreciation for the regular workplace. 

Lilly Ledbetter worked as an area supervisor for Goodyear in Alabama, the only woman out of a total of 15 area supervisors.  After nearly 20 years of faithful service and hard work, she learned that she was being paid from $500 to $1500 less per month than all her male counterparts including a number with lesser seniority.  She filed suit, a jury ruled that gender discrimination was the basis for her being underpaid and she was awarded some $250,000 of wages she had rightfully and fairly earned. 

             The Supreme Court took it away, ruling 5-4 that Ledbetter could recover only that lesser pay that occurred within the last six months of her employment.  Goodyear, of course, like many employers – studies have shown that one-third of private sector employers prohibit employees from discussing their pay – kept a tight lid on salary and pay information.  As a result, Ledbetter, despite her undeniable qualifications and hard work, was grossly underpaid in comparison with her male counterparts for many, many years.  Only when she found out what had been done to her did she file suit.  But the Supreme Court ruled no matter, she waited too late.

                The Lilly Ledbetter Fair Pay Act simply seeks to restore what every woman working in America had before the Supreme Court’s decision: that is, a realistic opportunity to recover in court the earnings and benefits that they deserve based on their performance and qualifications but have been denied because of their gender. The House of Representatives passed the bill overwhelmingly, but it died in the Senate in the face of a Republican-led filibuster with both of Kentucky’s Senators, McConnell and Bunning, standing tall against equal pay for equal work.

                It would seem a very American notion: that women (and everyone else for that matter) should be paid fairly and equally for the work their skills, abilities and labor enables them to do.  President Bush’s support for the anti-genetic discrimination bill is a sensible and reasoned response to a real world, real life problem. The Lilly Ledbetter Fair Pay Act is the same, and the President, along with Kentucky’s Senators, should line up in support of equal pay for equal work.

Robert L. Abell
www.RobertAbellLaw.com

Criminal Prosecution for Worker Safety Violations

    Enacting meaningful criminal penalties for worker safety violations is urged by former Justice Department prosecutor David M. Uhlmann in an op-ed column, "The Working Wounded," in the New York Times.  Mr. Uhlmann reports some disturbing statistics and information: an employer that violates a worker safety rule and kills an employee faces only 6 months in jail under the federal Occupational Safety and Health Act (OSHA); if the employee is maimed and disabled the maximum penalty is up to a $70,000 fine; and since 1970 only 68 cases have been prosecuted under OSHA, although approximately 341,000 people have died at work. 

Robert L. Abell
www.RobertAbellLaw.com

Preemption and the Decline of States' Rights

    In an astute editorial observer column in the May 23, 2008, edition of the New York Times, Adam Cohen describes the ascendancy of the doctrine of federal preemption under the Bush Administration that has crippled, in some cases prevented, states from being able to protect their citizens.  The Bush Administration has run rough shod over the traditional Republican assertion of "states' rights" to prevent, by the doctrine of federal preemption, states from protecting their citizens. 
    Consumers have been harmed by the Bush Administration's assertion of preemption in a number of areas.  As states mobilized in response to a spike in predatory lending, the Bush Administration's Office of the Comptroller of the Currency issued rules negating state predatory lending laws over the protests of all 5o state banking superintendents, Republican and Democrat.  The 2003 Medicare law prevents states from regulating abuses by private Medicare insurance plans.  The National Association of Insurance Commissioners, which represents the insurance regulators in all 50 states, protests that states no longer have the ability to protect sick, elderly customers.
    States' ability to conserve their resources has also been curtailed by the Bush Administration.  California's laws curbing greenhouse gases from new cars and trucks were blocked by the Environmental Protection Agency. 
    The Bush Administration has rewritten more than 50 federal regulations that will make it much more difficult and in many instances impossible for consumers to sue corporations responsible for unsafe food, drugs and other dangerous products.  An example is a suit brought by the actor Dennis Quaid and his wife, who claim that confusing packaging on a blood thinner caused large doses to be mistakenly given their newborns at the hospital.  Their suit was thrown out of court, because, under the doctrine of preemption, the manufacturer's compliance with Food and Drug Administration labeling requirements barred any lawsuit. 
    What's the upshot of all this?  Cohen describes it right on:  "Manufacturers are more likely to make unsafe products if they know a customer who is injured or killed cannot sue." 

Robert L. Abell
www.RobertAbellLaw.com

FDA Chief Bypasses Bush Administration To Beg Congress for More Money

    The New York Times reports that FDA Commissioner Andrew C. von Eschenbach has bypassed the Bush Administration to appeal directly for more money for the troubled agency, which is charged with protecting Americans' food, drugs and a myriad of everyday items.  Although the Commissioner acknowledged earlier in the year that the FDA was not able to meet its responsibilities and an FDA Science Panel reported last year on the agency's failings, the budget requested by the Bush Administration was insufficient to cover even payroll increases.  Protecting the American public was not considered a priority for the Bush Administration, which meanwhile has issued a series of regulatory rules to insulate corporate wrongdoing from accountability, responsibility and liability through the legal doctrine of preemption. 

Robert L. Abell
www.RobertAbellLaw.com

Bush Administration Rules Protect Corporate Wrongdoing

    As part of its ongoing and to date very successful effort to insulate corporate wrongdoing from accountability, responsibility and liability, the Bush Administration has adopted since 2005 a total of 51 regulatory rules that preclude lawsuits arising from all sorts of everyday items including drugs, cars, railroads, medical devices and food.

    The legal doctrine is known as "federal preemption."  Here's how it works: say for instance the Food and Drug Administration (FDA) adopts a regulation outlining drug labeling and packaging.  However, the labeling and packaging causes confusion and, as a result, children are badly injured.  That's what happened to actor Dennis Quaid's newborn twins who were given massive doses of blood thinner at a hospital.  The Quaids filed a lawsuit in Illinois state court claiming that the manufacturer -- Baxter Healthcare Corp. -- was negligent n packaging different doses of the product in similar vials with blue backgrounds.  Under the doctrine of "federal preemption," however, the Quaids' suit could be barred because the manufacturer's compliance with a deficient federal regulation preempts any liability it might have for causing harm. 

    Earlier this year FDA Commissioner Dr. Andrew C. von Eschenbach publicly acknowledged that the agency "may fail in its mission to protect and promote the health of every American" and that "peril exists."  That admission followed on the heels of a report late in 2007 from the FDA Science Board that the agency does not have the capacity to ensure the safety of the nation's food, cannot adequately regulate the development of medical products based on "new science" and had many other materials failings. 

    Historically, state tort and liability lawsuits have been viewed as complementary to federal agency regulations.  But the Bush Administration has hit upon a successful formula to ensure not consumer safety but corporate immunity from responsibility and accountability: render the regulatory agencies unable to function and preempt any attempt to protect consumers.  The American Association for Justice and other groups are opposing mightily these efforts and you can learn more here.

Robert L. Abell
www.RobertAbellLaw.com