... and Justice for All

Tainted Toys To Remain For Sale, Consumer Product Safety Commission Says

Children's toys, including teethers and pacifiers, tainted by the presence of the controversial chemical phthalate will remain for sale for now and even after a ban takes effect on February 10, 2009, provided they were manufactured before that date, according to a decision by the Consumer Product Safety Commission, the Washington Post reports, "Some Toys With Banned Plastics Will Stay On Market." 

Phthalates are a chemical used in soft plastics and are linked to reproductive problems.  Their use was banned by a law passed in August.  However, the Commission's ruling will allow products made before that date which use the banned substance to be sold, even after February 10, 2009. 

The Commission proposes a remedy that is unworkable; it says that concerned parents can call a product's manufacturer and find out when the item was made.  This is a proposal untethered from reality.  One can first question the reliability of any information a parent would receive.  Do you call before the item is purchased?  Do you identify the item on the store shelf, call and return later hoping to find the same item on the shelf?  Ignoring these realities the Commission caved into industry's complaints about complying with this law protecting families and their children.

Robert L. Abell
www.RobertAbellLaw.com

American Association for Justice Reports On Insurance Companies' "Tricks of the Trade"

The American Association for Justice (AAJ) has continued its examination of the insurance industry.  In July, AAJ released a report The Ten Worst Insurance Companies in America: How They Raise Premiums, Deny Claims, and Refuse Insurance to Those Who Need It Most.  Now, AAJ reports on the insurance industry's stonewalling, subterfuge and other unethical and bad faith practices: Tricks of the Trade: How Insurance Companies Deny, Delay, Confuse and Refuse. 

The favorite tricks include the following: denying claims, delaying until death, confusing consumers, discriminating by credit score, abandoning the sick and cancelling for a call.

Robert L. Abell
www.RobertAbellLaw.com

"Get Out of Jail" Free Cards For Corporations -- American Association for Justice Details Undermining of Family and Consumer Protections

The American Association for Justice has released a report, Get Out of Jail Free: How the Bush Administration Helps Corporations Escape Accountability, detailing the systematic and widespread undermining of family and consumer protections by Bush Administration agencies and political appointees.  Through documents and emails obtained via the Freedom Of Information Act the AAJ report traces the evolution and development of a federal preemption strategy, a legal doctrine by which state law protections for families and consumers are eliminated or "preempted" by federal regulations that insulate corporations from liability, accountability and responsibility for their defective products.

Robert L. Abell
www.RobertAbellLaw.com

Drop Side Crib Recall

Following the death of one child and harrowing incidents involving others the Consumer Product Safety Commission announced today the recall of about 600,000 drop side cribs manufactured by Delta Enterprise Corp.  The drop side of the defective cribs can detach when its spring peg is not engaged.  Further and detailed information can be obtained at the CPSC website by clicking here.

Robert L. Abell
www.RobertAbellLaw.com

Fen-Phen Flim-Flam: Don't Be A Victim Of Lawyer Advertising

Surely one lesson from the Fen-Phen case debacle is how utterly unhelpful lawyer advertising is as a way for the average person, who probably has no prior involvement at all with the legal system, to find a lawyer to help them. For years here in Central Kentucky we were regaled with colorful television ads that urged us to “Call the Man.” Apparently, many did including a few hundred that were injured by the Fen-Phen diet drug. During the recent Fen-Phen criminal trial, however, we learned that “the Man” they called was so incoherently drunk in the early A.M. hours that he could not understand, at least according to the jury’s verdict, the circumstances by which he was collecting some many millions in attorneys fees. 

It doesn’t take that much to participate in a federal criminal conspiracy: only knowledge of a criminal purpose and something (an overt act) done in furtherance of the conspiracy’s purpose. But putting aside issues of criminal conspiracy, one can fairly wonder exactly what legal services were provided to justify any fee.

But all that begs the question of what is an individual to do when they or a family member has suffered some serious personal injury and they need to find a qualified lawyer to represent them. Looking at the Yellow Pages isn’t going to provide much help, although it is a place to start. Most of the ads all say about the same thing: something to the effect that the lawyer will rip the flesh off somebody while representing you and/or they handle a variety of types of cases.  All that’s good and well but how are you to have any idea as to whether the lawyer is smart and capable and experienced.  Most consumers have no idea how to go about making this type of assessment. 

So here are some helpful tips:

• Ask a lawyer that you know for a referral. He or she will likely know somebody who handles the type of case you have. If you don’t know any lawyers, go to www.lawyers.com and start ther

• The phone book actually can be a good place to start but keep in mind that not all lawyers advertise in the Yellow Pages.

• Meet with and interview a number of attorneys. Ask each one who else in town handles your type of case. If they won’t give you any names, get up and leave.

• Ask each lawyer to explain to you why it is they think you have a case. You should be able to understand the explanation; if you can’t, ask yourself how the lawyer is going to be able to make a jury, which will be made of people just like you, understand it. Of course, keep in mind at the beginning of a case the lawyer may not know all the facts that will prove important but they should be able to give you an informed outline of how they would anticipate your case moving forward.

• Ask each lawyer if they have any information to provide you such as a website or other materials that you can review on your own time to find out more about your type of case, their qualifications, and experience.

• Ask the lawyer if they will handle your case or if somebody else in their office will.

• Find out how the lawyer will keep you informed about the progress of a case. You should understand how you can expect your case to move forward, what events will take place and what a general time frame may be.

Don’t be a victim of a Fen-Phen flim-flam.  When you or your family are faced with a serious injury or other serious legal situation, finding and hiring a good lawyer to represent you is very important. I hope this will help anyone facing this difficult situation make a good choice. 

Robert L. Abell
www.RobertAbellLaw.com

Delays Caused By Insurance Companies Harm Patients, Doctors Report

Doctors responding to a survey investigation conducted by the Toledo Blade reported that 14% of their patients had suffered "serious harm or injury" because of delays in care caused by their patients' insurance companies, see "Not What the Doctor Ordered: Delays, Denials Thwart Patients Hoping for Help."  920 doctors, including members of both the American and Ohio Medical Association, responded to the survey.  Nearly all -- 99% -- reported that insurance companies had interfered with their clinical decisions regarding treatment of their patients. 

There is often no real remedy or relief for a patient or a patient's family that is killed or seriously injured because their insurance company would not pay for the treatment and care their doctor directed.  That is because most people's medical insurance comes through their job and therefore is covered by a federal law known as ERISA (stands for Employee Retirement Income Security Act).  When an insurance company denies medical treatment in this type situation, the only remedy that the insured patient (or the insured patient's family) can recover is the cost of the treatment.  And that will occur only if the insurance company's decision is deemed "arbitrary and capricious."  If the patient dies as a result of the insurance company's arbitrary and capricious denial of the treatment, there are no damages recovered by the family, no lost income or anything but the cost of the denied treatment.  ERISA is protection for outrageous insurance company practices.

Robert L. Abell
www.RobertAbellLaw.com

State Farm To Pay $74 Million More To Settle Katrina Claims

State Farm Insurance Company has agreed to pay an additional $74 million to settle a lawsuit regarding its handling of Hurricane Katrina claims in Mississippi, Mississippi Attorney General Jim Hood announced Wednesday reports the Jackson Clarion-Ledger.  In addition, State Farm has agreed to notify some 150 claimants that their claims may be re-evaluated. 

Robert L. Abell
www.RobertAbellLaw.com

Consumer Product Safety Whistleblower Protection Passed by Congress

Whistleblower protection for employees reporting consumer product safety issues was passed today by Congress as part of the Consumer Product Safety Reform Act.  This law, which now awaits President Bush's signature, includes the following provisions:

• employees of product manufacturers, distributors and retailers are covered
• protection for employees who report product safety issues to their employer, to the federal government or to their state attorney general
• employees who refuse to participate in violations of consumer safety laws are protected
• a limitation period of 180 days, complaints may be filed with the federal Secretary of Labor but may be moved to federal court after 210 days if no resolution
• remedies including reinstatement to employment, back pay, compensatory damages, attorneys fees and costs

This law represents an important step in improving the safety of consumer products.  President Bush should sign the bill.

Robert L. Abell
www.RobertAbellLaw.com

Congress To Ban Toxins In Childrens' Toys

Congress will ban three toxins commonly found in children's toys as part of legislation reforming the Consumer Product Safety Commission, the Washington Post reports ("Lawmakers Agree To Ban Toxins In Children's Items").  The toxins, which have been commonly used in plastic children's toys for decades, can be ingested by acts as simple as a child chewing on a toy.  The legislation will also ban lead from children's products, give consumers access to more information on complaints and accidents and provide for tougher enforcement measures.  The Bush Administration, as well as the chemical industry, opposes the added protections for children.  The legislation follows similar laws passed by the states of California, Washington and Vermont and by the European Union.

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