Georgia Injury Lawyer Blog

As Georgia injury lawyers we see all types of automobile accidents and truck accidents but yesterday's collision in Palmetto, Georgia between a Ford Mustang and a Dodge four-wheel drive pickup truck came close to becoming a wrongful death case.

The collision between the two vehicles occurred on U.S. Highway 29 at about 7:15 a.m. According to Palmetto police, the driver of the Dodge truck, crossed over the centerline of the highway into the northbound lane and collided head-on with the Ford Mustang. Because the Dodge truck was jacked up so high, it literally rode over the Mustang and came to rest on top of it. Fortunately, neither driver had any life-threatening injuries.

The Georgia injury lawyers at Finch McCranie, LLP have been representing the victims of serious injury accidents for over 45 years. We have also represented families of victims involved in motor vehicle collisions which have resulted in the death of their loved ones. If you or a loved one has been injured as a result of the negligence of others, call us today to discuss your rights.

The Georgia injury lawyers at Finch McCranie, LLP commute into the City of Atlanta everyday. In doing so, it is astounding to see how many people are sending text messages on cell phones, Blackberries and other PDA’s while driving. Many of these drivers cause automobile accidents, truck accident, bus accidents and even motorcycle accidents which result in serious injuries and sometimes the wrongful death of innocent victims.

Texting while driving is a rising problem among teenagers and adults and is a leading cause of traffic accidents. When someone texts while driving, they are endangering their own lives as well as other drivers and pedestrians they may pass. Last week two members of the Georgia House of Representatives introduced Bills that would ban the practice of texting. If a Bill passes, Georgia would be the 20th state in the nation including North Carolina and Tennessee, to ban texting while driving. Just today I read that similar legislation is being proposed in South Carolina and it is expected to pass.

If you or a loved one has been injured in a motor vehicle accident as a result of the negligence of a driver who was texting or operating other communication devices, call the Georgia injury lawyers at Finch McCranie, LLP who have been representing injury victims for over 45 years.

The Georgia injury lawyers at Finch McCranie, LLP have seen our share of dangerous products recalled for one reason or another; however, last week's recall of numerous Toyota models of automobiles and trucks probably sets a new record. In late 2009, Toyota issued a recall of 4.2 million vehicles because it was thought that they could interfere with the gas pedal and cause sudden acceleration. Now Toyota has issued a recall affecting 2.3 million vehicles and has suspended the sale of eight models, including their most popular model, the Camry, over faulty gas pedals that could stick and cause unexpected acceleration and result in an automobile accident.

Toyota is working with CTS Corp., which manufactures gas pedals for Toyota, to redesign the pedals and to find a remedy for what is believed to be a condensation problem which can cause the pedal to move slowly or in some cases get stuck.

In the meantime, there are thousands of potentially dangerous vehicles of the road which could suddenly accelerate and cause serious injuries to the occupants and others or even cause the wrongful death of innocent people.

If you or a loved one is injured as a result of the sudden acceleration of a Toyota product, call one of the Georgia injury lawyers immediately for a free consultation. In all of these cases, it is crucial that the automobile be preserved so that it can be inspected by experts.

In a blog of a few days ago we wrote about the dangers of “distraction driving.” Statistics have been released from the National Highway Traffic and Safety Administration indicating that many people across the United States are being injured on a daily basis as a result of the use of cell phones and texting devices. Obviously, when using these devices, the driver is “distracted” and the more distracted the driver the less safe the driver. Regrettably, the State of Georgia has yet to enact a ban on distraction driving.
The good news is that the United States government has now barred interstate truckers and bus drivers from sending text messages while behind the wheel. According to the United States Transportation Secretary, enactment of the federal ban on texting while driving for truck drivers “is an important safety step, and we will be taking more to eliminate the threat of distracted driving.”
The government’s announcement followed a study released in July by Virginia Tech’s Transportation Institute which found that when truckers text they are 23 times more likely to be involved in a crash or near miss situation than otherwise. Last year, President Obama banned federal employees from texting while driving government vehicles and from texting in their own cars if they used government issued phones or were on official business. Again, these are all steps in the right direction. One day, we hope that the Georgia Legislature will enact similar prohibitions on distraction driving so that the citizens of the State of Georgia will be protected from the dangers of “distraction driving.”

In 1996, the U.S. Congress passed the Aviation Disaster Family Assistance Act. A key component of this law was to prevent attorneys from contacting members of a victim’s family for at least forty-five (45) days after an airline crash. After a crash involving serious injuries or deaths, families need to be left alone to tend to family matters. They do not need to be besieged by attorneys seeking to profit upon their misfortunes. In recognition of the fact that oftentimes members of the Bar fail to adhere to the high standards of professionalism we would hope would be adhered to without this law, Congress passed this law to protect victims of these tragedies.

We read last week that a Detroit lawyer has been ordered to pay $5,000.00 to settle a Complaint against him filed by the U.S. Attorney’s Office in Michigan concerning a violation of this Act. Allegedly, the lawyer sent a solicitation lawyer from his Detroit office directly to a victim’s family within twelve (12) days of a tragic crash. The case apparently was investigated by the Inspector General’s Office for the United States Department of Transportation and resulted in the civil fine imposed on the attorney.

Unfortunately, lawyers oftentimes approach victims in hospitals right after tragedies and in other contexts where it is inappropriate to do so. Yes, clients need to be advised of their rights and yes, clients need legal advice when dealing with tragedies affecting their loved ones. But, clients do not need to be solicited directly by attorneys when they are grieving or dealing with the results of a tragic event. Clients should reach out to attorneys when they are ready to do so and they should not be besieged and bombarded by those seeking to profit from their misfortune.

Georgia injury lawyers that handle automobile accident and trucking accident cases know that a rear-end collision is no laughing matter. Although the term “whiplash” immediately evokes a negative reaction, it is a serious, painful and many times a permanent injury. Unfortunately, a rear-end crash can, and often does, result in disc herniation and other spinal injuries. In some cases such a collision can result in a brain injury if the head strikes a solid object such as a rear window in a pickup truck.

The experts will tell you that a rear-end crash can cause the occupants in the vehicle that is struck to propel their heads forward at a speed that is 10 times or greater than the force of gravity. Rear-end crashes can cause back injuries, neck injuries, shoulder injuries, whiplash, cervical spine injuries, disk injuries, nerve injuries, joint injuries, ligament injuries, and other serious injuries. Anyone who has had one of the injuries, knows that they are very painful and debilitating. A rear-end car crash victim may have to undergo surgery, take pain medication, and spend months in physical therapy.

If you or a loved one have been injured as a result of being rear-ended in a motor vehicle collision, call the Georgia injury lawyers at Finch McCranie, LLP who have been represent victims of these crashes for over 45 years.

Georgia residents purchasing Alli diet drugs on the internet may be at serious risk. Counterfeit capsules of the diet drug Alli which are being sold online can pose a serious health risk to some users according to the Food and Drug Administration.

The FDA warned consumers this week that fake versions of the over-the-counter drug are being sold, mainly online
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According to the FDA the counterfeit pills contain excessive amounts of sibutramine, a prescription drug and controlled substance that can place people with cardiovascular disease at risk for higher blood pressure, heart attack or stroke. The fake pills contain at least twice as much sibutramine as would normally be recommended.

Symptoms of excess sibutramine can include heart palpitations, sleeplessness, anxiety, dry mouth, nausea and shakiness.

The FDA further cautioned that analysis shows that the counterfeit pills lack the active ingredient orlistat found in the authentic Alli product. This ingredient prevents a portion of the fat eaten from being absorbed.

According to the manufacturer of Alli, consumers should watch for these signs in determining whether the product they are buying is fake:

• LOT code information is missing from the top of the box.

• The expiration date includes month, day and year (example: 06162010), instead of only the month and year (example: 05/12).

• The seal on the bottle should read "SEALED FOR YOUR PROTECTION" in white ink on the real Alli bottle; this statement is not present on the fake product.

• The counterfeit capsule is slightly larger, and its content is powdery; the genuine capsule is shaped more like a pellet.

Georgia injury lawyers know that when there is a motorcycle accident, the injuries are usually serious. Motorcycles are by their very nature far less crash worthy than closed vehicles and crashes frequently result in catastrophic injuries or death. In 2000, I spent two weeks in the trauma unit of the Orlando Regional Hospital (a fantastic hospital) where my daughter was a patient. Throughout the day and night, helicopters landed on the roof with critically injured motorist, most of which were involved in motorcycle crashes. Sadly, many died as a result of brain injuries and other serious injuries.

Recently, I went to the Georgia DOT website to locate some recent statistics on motorcycle crashes. For reasons unknown to me, the latest posted data was from 2003. According to their study:

. There were 2,851 total motorcycle crashes, 2123 involving injury crashes, and 101 fatal crashes.
. Motorcycle crashes accounted for 7% of traffic fatalities, but only about 1% of the crashes.
. Of all motorcycle riders in crashes, 56% had at least visible or more severe injuries compared to only 4% of passenger cars occupants involved in a crash.
. Males represented 87% of the injuries and fatalities in motorcycle crashes.
. Motorcycles made up 2% of all registered vehicles.
. Half of the motorcycle operators (50%) involved in fatal crashes did not have a valid Class M license or permit.
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Because of the seriousness of the injuries sustained in motorcycle accidents and because many of the motorist who cause these accident are under-insured, Georgia injury lawyers need to be creative when representing riders. It is imperative that the victim’s attorney examine all potential avenues of recovery so that the client can be fully compensated. Other areas to review include failure of the motorcycle’s mechanical systems, failure of other motorcyclists to observe the motorcyclist, failure maintain the roadway and debris on the roadway from trucks, including tire tread separation.

If you or a loved one have been injured in an automobile accident, truck accident or motorcycle accident, consult the Georgia injury lawyers at Finch McCranie, LLP. Our firm has been representing personal injury victims for over 45 years.

The statistical evidence regarding automobile accidents continues to demonstrate that drivers who are distracted while driving are dangerous drivers likely to be involved in accidents. Texting while driving, using cell phones while driving and other distractive driving problems continue to cause more and more accidents on our highways and more and more injuries to innocent third parties endangered by such conduct.

According to the National Highway Traffic Safety Administration in 2008, there were a total of 34,017 fatal crashes in which 37,261 individuals died. Sixteen percent (16%) of the total fatalities were due to driver distraction. The proportion of drivers reportedly distracted at the time of the fatal crashes increased from eight percent (8%) in 2004 to eleven percent (11%) in 2008. This is hardly surprising because more and more drivers are using their cell phones and are texting while driving. Drivers under the age of 20 had the highest proportion of distracted drivers involved in fatal crashes according to NHTSA sixteen percent (16%). Again, this statistic is hardly surprising because those who seem to use their cell phones the most and/or text while driving are the younger drivers on the road.

Of the 1,630 injury crashes reported throughout the United States, NHTSA estimates that an astounding twenty-one percent (21%) involved distracted driving.

Many states have banned the use of handheld devices while driving. These include California, Connecticut, New Jersey, New York, Oregon, Washington and the Virgin Islands. A texting ban exists Alaska, Arkansas, California, Colorado, Connecticut, Illinois, Louisiana, Maryland, Minnesota, New Hampshire, New Jersey, New York, North Carolina, Oregon, Rhode Island, Tennessee, Utah, Virginia, Washington and Guam. Notably, no such ban for either form of distracted driving exists in Georgia.

Based on the statistical evidence released by NHTSA, it is clear that the Georgia Legislature should enact laws to protect innocent members of the motoring public from distracted drivers. Until and unless such legislation is enacted, this problem will likely continue to mount and more and more innocent third parties will either be killed or seriously injured by such conduct. Stop if you are doing either!

Last fall Toyota announced the largest auto recall in U.S. history after numerous sudden unintended acceleration accidents were reported, many of which resulted in fatalities. Now, Toyota has announced an additional recall of 2.3 million vehicles to correct this same problem. Why the additional recall? It appears that Toyota is doing so because ABC News is soon to report an increase in sudden acceleration cases since the recall last year. According to news reports, there have been 60 new cases of sudden unintended acceleration cases involving Toyota vehicle.

In one tragic occurrence outside of Dallas, Texas, four people were killed when a Toyota sped off the road through a fence and landed upside down in a pond. Even though Toyota has long blamed maladjusted floormats for the unintended acceleration problem, however, in this particular accident, the floormats were found in the car’s trunk where the owners had been advised to put them as part of the earlier recall. Thus, the evidence continues to mount that this problem with Toyotas is not caused by floormats but rather by onboard computer glitches and other engineering issues.

While we are pleased that Toyota has finally recalled its dangerous products, obviously, it is disturbing that Toyota refused to do so earlier for all affected vehicles. From the reported news coverage, had it done so, it may be that an additional 60 cases involving injuries and/or fatalities may have been avoided.

Georgia injury lawyers know that defective and dangerous products of all types are sold in this country. The use of some of the dangerous products have resulted in serious injuries and in some cases death. Several years ago, the Georgia injury lawyers at Finch McCranie, LLP represented the family of a young boy in a products liability case. The boy died in a house fire caused by a defective humidifier. The types of dangerous products run the gamut.

A new product recall involving baby strollers was reported just this week. After the U.S. Consumer Product Safety Commission got reports of children's fingertips being amputated, Graco Children's Products, Inc. a division of Newell Rubbermaid, recalled a million and a half strollers. The recall applies to Graco's Passage, Alano and Spree Strollers and Travel Systems, which were sold at various retailers, including Walmart, Target, Toys "R" Us from October 2004 to December 2009. The CPSC has received reports of 5 fingertip amputations and 2 fingertip lacerations.

If you or a loved on have been injured as a result of a dangerous product, call the Georgia injury lawyers at Finch McCranie, LLP for a free consultation.

This is a question that we are asked by virtually every client in every case we have. The answer is that if a settlement offer is made which is approximately equal to what one can expect to receive at a jury trial then the case should be settled. In other words, there would be no need for a jury trial because the settlement offer being made is approximately what one would likely receive in front of a fair and impartial jurors. If the offer is below what one is likely to receive from fair and impartial jurors then we recommend that clients not accept the settlement offer. Obviously, if the offer is above what we reasonably believe a fair and impartial jury would award in a particular case, we recommend that our client accept such an offer.

It is not always easy to predict what a fair and impartial jury would do with a particular case. The nuances and unique facts of any case obviously influence claim evaluation. If liability is strong and if damages are good and the client otherwise makes a favorable impression, such a case has a greater settlement value than does a case where there are liability issues, damage issues and/or client problems. As always, the facts are key but sometimes the law as it pertains to the unique facts involved will dictate as well the outcome of the case and/or the evaluation of a particular claim.

Sometimes the law is not favorable to a particular position that a party has in litigation. The less favorable the law to their position, the less valuable the claim from a claim evaluation standpoint. In those cases where a client has been victimized by the negligence of a third party, they are truly innocent in the premises and their damages are clear and easily proven, such a case has greater settlement value than does one where the damages may be attributable to acts other than the negligence, there is contested liability based on the facts and circumstances of the case and/or the client’s expectations are unreasonable or they do not make a very positive impression and thus a jury may not like them.

What we try to do in representing our clients is to make sure that their cases are presented in the best light possible so that we can get the best possible result for them. If an offer is made that is equal to what we believe a fair and impartial jury would award, we always recommend that such a client consider such a settlement proposal assuming it is made. Of course, it is the client’s ultimate decision whether they wish to settle or rely upon fair and impartial jurors to resolve their case. Going to trial can be a gamble because oftentimes one can get a lesser verdict than they would have obtained via settlement. If the client is fully informed of these risks and nonetheless wishes to go to trial, sometimes the award obtained is higher than one might otherwise obtain through settlement. As long as the client is fully informed of their options and counsel is fully prepared to present the strongest case possible to the jury, the client should be advised that a jury trial is an option that they should consider, however, in weighing their options, if the offer made is reasonable and is likely to approximate what a fair and impartial jury might award, then in that event, we always recommend that our clients consider such a settlement offer while deferring to their discretion whether they wish nonetheless to accept the risk of going forward to a jury trial.

An automobile accident in Dekalb County, Georgia has claimed the life of a young woman this week, Dekalb County police officials have reported that charges are pending against 17-year-old Shaeed Saunders stemming from the death of Tanesha Williams - age 14. Authorities have reported that on Wednesday, Saunders was attempting to pass another vehicle around a curb at a high rate of speed when he lost control of his vehicle, ran up on the sidewalk and struck Williams and 2 other students. The 2 students were injured but are expected to recover. The collision occurred near Stone Mountai High School where Saunders was a student.

The Georgia injury lawyers at Finch McCranie, LLP have represented the families of victims of automobile accidents, trucking accidents , motorcycle and and bicycle accidents and pedestrian accidents who have died as a result of the negligence of others for over 45 years. If you have lost a loved one as a result of the negligence or carelessness of someone, call us today for a free consultation.

Mediation can be employed at any stage of a civil dispute. It can occur before or after a lawsuit is filed. Our experience at this firm has typically been that mediation occurs after a lawsuit is filed and after the parties have become well acquainted with the strengths and weaknesses of both sides of the dispute. Once the parties have access to all the operative and materials facts via written discovery and depositions, it is not uncommon for one party to suggest a mediation of the dispute.

Once mediation is agreed upon, a third party neutral or mediator is selected to preside over the mediation session. The third party neutral is typically an experienced attorney or judge who has experience with the type of dispute at issue. Whether the case involves medical malpractice, products liability, wrongful death, a tractor-trailer accident or other personal injury claim, typically, one tries to select a mediator who has extensive experience in such a case. The parties then appear jointly at a prearranged mediation conference after which time the mediator takes over as a presiding third party neutral.

The role of the mediator at the mediation conference is to facilitate settlement negotiations. The mediator typically listens to both sides summarize their respective contentions and then the mediator meets privately with each side trying to get one side to make an offer and the other side to make a counteroffer thereto. During the negotiation process the mediator probes the weaknesses and strengths of each side and encourages both sides to be open minded always agreeing to compromise their respective positions. Any successful mediator or third party neutral tell both sides that in order for a settlement to occur both sides have to negotiate in good faith and have to agree to compromise, that is accept less than what they would ideally want but nonetheless try to reach a good faith compromise agreement to resolve the dispute.

Typically, at our firm, as long as the mediator is qualified, we allow the defense to select whom ever they wish. Our logic is that if the defense selects a mediator, by definition, they must have confidence in his or her abilities to evaluate a claim. We always agree to whomever the defense selects because we are confident that we can convince a neutral third party mediator of the strength of our case and thus, if they accept our position, they will be able to successfully advocate to the other side who selected them that they should reconsider their position and increase their settlement offer.

Some mediators are better than others either due to experience and/or personality. When an experienced mediator gets involved in the process, we have found that between 80 to 90 percent of the time a case does settle at mediation. This is a very good track record which indicates that when both sides have access to all of the material facts that are needed to evaluate a claim and when both sides are assisted by a third party neutral, the chances of a successful settlement are good.

Georgia injury lawyers close attention to dangerous product recalls. In a filing with the National Highway Traffic Safety Administration, Chrysler Group LLC announced the recall of 24,177 vehicles due to a potential defect in a brake system that could result in automobile accidents from sudden brake failure.

The recall includes 2010 model Chrysler Sebring, Dodge Avenger and Nitro, and Jeep Liberty, Commander and Grand Cherokee SUVs. The recall also applies to 2009-2010 model year Dodge Ram trucks.

According to Chrysler, the clip retention tab on the brake pedal pin on some of the vehicles was improperly formed, or not installed, during the manufacturing process. Although Chrysler is unaware of any automobile accidents related to the defective product, it could result in sudden brake failure.

The Georgia injury lawyers at Finch McCranie, LLP have been representing injured victims of dangerous products for over 45 years. Many of these cases involved serious injury and some involved the wrongful death of the client. If you or a loved one have been injured by a dangerous and defective product of any kind, contact us for a free consultation at (800) 228-9159.

The simple answer to this question is - Yes. Mediation is a tool that is oftentimes successfully used to settle disputes in a variety of contexts including personal injury claims. Whether the case involves breach of contract, employment disputes, medical malpractice, products liability or an automobile accident, mediation has proven to be an effective tool in resolving civil disputes. While it is not always successful, nonetheless, mediation is something that should be considered by virtually any client when trying to resolve a civil dispute. If a reasonable settlement offer is made at mediation, the case can be resolved. If not, the parties can walk away and proceed with a trial by jury.

Here at our firm, of course, we do not prepare cases for mediation, we prepare them for trial. The best way to get a successful settlement result is to demonstrate to the opponent in a civil dispute that if the dispute cannot be amicably resolved a jury is very likely to award a substantial verdict against them. By demonstrating strength to the opponent during the civil litigation process, one increases the chances of getting a fair settlement for their claim. Thus, if we agree to mediation of a particular claim involving a client with a personal injury case, we try to do so with the posture of the case being a demonstration of strength verses weakness in agreeing to submit to a settlement conference. In subsequent blogs, we will describe the mediation process and why it is an effective tool in resolving claims. For the time being, we are simply trying to advocate that in any civil dispute mediation can be used to try to settle the case on an amicable basis by means of compromise. As is true of any other settlement agreement, the key word here is compromise. If both sides are willing to compromise their portion of the case and agree in good faith to negotiate with one another, mediation can be used to successfully resolve a personal injury claim. We caution, however, that an effective attorney will always be extremely prepared and will demonstrate that in the event the mediation is unsuccessful, the opponent will very likely incur increased legal expenses and may very well pay more at a jury trial than they would at a successful settlement. If the case can be settled at mediation for a fair sum - great. If it cannot, a prepared attorney will typically obtain from a jury as much (or more) than could have been obtained earlier at a mediation.

As Georgia injury lawyers know, motorcycle accidents often result in serious injuries, which include brain injury and unfortunately sometimes death. Just yesterday, a teenager between the ages of 16 and 17 years old was injured in a motorcycle accident at Highland Park, a 1000 acre motorcycle and all-terrain vehicle (ATV) park in Cedartown, Georgia. Details of the accident are not know at present; however, officials have indicated that the victim has suffered head iinjuries. Redmond EMS requested Cedartown Rescue to assist.

If you or a loved one has been injured in a motorcycle accident, call the Georgia injury lawyers at Finch McCranie, LLP at (800) 228-9159. Our lawyers have been protecting the rights of Georgia injury victims for over 45 years.

Tylenol products have been recalled due to a moldy smell that has been reported to make users sick. Johnson&Johnson's McNeil Consumer Healthcare Products recalled batches of Tylenol Arthritis Caplets in November due to the smell, which caused nausea, stomach pain, vomiting and diarrhea. Approximately three weeks ago, the recall was expanded to include Tylenol Arthritis Caplets. Now, the company has broadened the recall to include batches of regular and extra-strength Tylenol children's Tylenol, eight-hour Tylenol, Tylenol arthritis, Tylenol PM, children's Motrin, Motrin IB, Benadryl Rolaids, Simply Sleep, and St. Joseph's aspirin. Caplet and geltab products sold in the Americas, the United Arab Emirates, and Fiji were recalled.

The Food and Drug Administration(FDA), has been very critical of the company’s handling of the problem. The FDA said about 70 people were either sickened by the odor, or noticed it.
The FDA says McNeil knew of the problem in early 2008 but made only a limited investigation. The FDA reports that McNeil did not act as swiftly as required in investigating and recalling the products.

The FDA sent McNeil a warning letter for violating manufacturing standards and failing to report and investigate the problem in a timely way. Johnson&Johnson has 15 days to respond. The FDA says it wants an explanation as to why the problem was not made public sooner.
Johnson&Johnson says the smell is caused by small amounts of a chemical associated with the treatment of wooden pallets. The FDA said the chemical can leach into the air, and traced it to a facility in Las Piedras, Puerto Rico.

Also on Friday, Federal prosecutors in Boston said Johnson&Johnson paid tens of millions of dollars in kickbacks so nursing homes would put more patients on its schizophrenia drug, Risperdal. The company gave special rebates to Omnicare Inc., the country's biggest company providing pharmacy services to nursing homes, in return for recommendations from its pharmacists that patients use

The personal injury and wrongful death lawyers at Finch McCranie LLP see suffering and loss on a daily basis through the clients we assist. However, rarely have we seen death, destruction, and suffering on a scale as that which is occurring in Haiti as a result of the tragic earthquake.

This week, in a non- partisan effort to help alleviate this terrible situation, former Presidents George W. Bush and Bill Clinton joined forces to lead the effort to raise funds for relief. They issued a call for monetary donations to assist those who have been devastated by this tragedy. The lawyers at Finch McCranie have answered the call and made sizable donations to the relief effort.

Former Presidents Bush and Clinton have issued a call for many Americans to meet this challenge by donating even a small amount to the relief effort. We are urging everyone to join us in responding. Please give to the effort. As the former Presidents point out, even a small donation multiplied many times will go a long way towards alleviating the pain and suffering being endured by innocent men, women, and children in Haiti.

Mandatory arbitration agreements deprive citizens of their right to seek redress in the courts of this country. Many large businesses place these clauses in their consumer agreements as a requirement. It has been consistently shown that the arbitrations which flow from these clauses are skewed in favor of the large corporations. Simply put, arbitrators know that they will not continue to receive business from these companies if they rule against them.

Recently, public pressure has forced many credit card companies to remove these unfair clauses from their contracts. However, they remain in many business agreements which consumer sign every day.

The American Association for Justice won a small victory last month in the long war over mandatory arbitration. Congress banned defense contractors from including in their employment contracts any provisions that require arbitration. This legislation arose from the case of Jamie Leigh Jones, a former employee of defense contractor Kellogg Brown & Root who reported being raped by her coworkers in Iraq.

Now, the American Association for Justice is focusing on nursing homes. The group's top lobbyist Linda Lipsen, the executive vice president for public affairs, was speaking at the American Association for Justice’s headquarters about its 2010 agenda in Congress. Asked whether it plans to fight mandatory arbitration broadly or industry-by-industry, Lipsen said the group wants Congress to pass the Arbitration Fairness Act of 2009 this year. The act would ban mandatory arbitration in all consumer and employment disputes. Lipsen singled out the nursing home industry as the likely centerpiece of the group’s push.

“When you bring your mother to the only nursing home in your area, and you’re looking at a 500-page document… you’re going to sign whatever it is you have to sign to get your mother into that home,” Lipsen said.

Bills to prohibit such provisions in nursing home contracts have been introduced in the House and Senate, but they did not receive votes in 2009. The Arbitration Fairness Act will protect all citizens’ right to access to the judicial system. It is sorely needed and we urge the Congress to pass it.

Our Atlanta attorneys frequently receive calls from Georgia citizens seeking help when a large health insurance company denies benefits for a procedure or test their doctor has ordered. Many times these decisions are made by nonqualified employees of the insurer who have never even seen the patient. Doctors routinely complain about this second guessing by health insurance companies.

Healthcare reform is a controversial topic today. In almost all of the proposed bills the actions of these large health insurers in second guessing doctors will be curtailed. So, it is not surprising that on Wednesday the nation's biggest health insurers acknowledged funding TV ads designed to kill or water down the health-care overhaul measure.

This admission came after a published report said the spots were paid for in secret to avoid a public-relations fiasco.

The trade group America's Health Insurance Plans said it put up funds at the behest of its members. AHIP represents the nation's largest insurers, including Aetna Inc. Cigna Corp, Humana Inc., UnitedHealth Group Inc. and Wellpoint Inc. AHIP acknowledged paying for the ads after a story appeared in the National Journal's online editions late Tuesday.

Citing health-care lobbyists, the National Journal said each insurer secretly put up at least $1 million and that the organization as a whole contributed $10 million to $20 million dating back to last summer.

The Journal reported that AHIP solicited the funds and funneled them to the U.S. Chamber of Commerce to underwrite the ads. Two business coalitions set up and subsidized by the chamber were responsible for the ad, the story said. AHIP started funding the ads last summer as the industry came under fire from lawmakers and the Obama administration over high profit growth and abuses.
AHIP did not fund the entire effort, the story indicates, as the chamber spent $70 million to $100 million on the ads.

Children are being exposed to dangerous chemicals in toys and items manufactured in China. In recent years there have been numerous recalls of goods manufactured in China due alarming safety concerns. However, it seems the Chinese are continuing to flood the US market with dangerous and even deadly products.

Lab testing organized by The Associated Press revealed that cadmium is present in children's jewelry, sometimes at levels exceeding 90 percent of the item's total weight. Cadmium is a soft, whitish metal that occurs naturally in soil. It's perhaps best known as one half of rechargeable nickel-cadmium batteries, but also is used in pigments, electroplating and plastic.

Most people get a microscopic dose of the heavy metal just by breathing and eating. Plants, including tobacco, take up cadmium through their roots and people absorb it during digestion or inhalation. Without direct exposure, however, people usually don't experience its nasty side: cancer, kidneys that leak vital protein, bones that spontaneously snap.

Cadmium is particularly dangerous for children because growing bodies readily absorb substances, and cadmium accumulates in the kidneys for decades.

Upon receiving notice of the findings, the United States Consumer Product Safety Commission reacted swiftly and began an investigation into the presence of the toxic metal cadmium in children's jewelry imported from China.

The promise to take action as quickly as possible followed by hours the release Sunday of an Associated Press investigative report that documented how some Chinese manufacturers have been substituting cadmium for lead in cheap charm bracelets and pendants being sold throughout the United States including:

• Three flip flop bracelet charms sold at Walmart (contained between 84 and 86 percent cadmium)
• Two charms on a "Best Friends" bracelet bought at Claire's (consisted of 89 and 91 percent cadmium)
• Pendants from four "The Princess and The Frog" necklaces bought at Walmart (ranged between 25 and 35 percent cadmium)

Potentially dangerous products not cleared for safety and effectiveness by the Food and Drug Administration's (FDA) have been removed from the market until they are in compliance with federal regulations.

All are products made by Sybaritic Inc., a major player in the development of beauty and spa products used in laser surgery and dermatology and spa treatments.
One product promises skin that is "soft, supple and youthful." Another, a laser therapy device, zaps unsightly veins, scars and unwanted hair. Another, a hydrospa tub, is advertised to provide the "ultimate luxury."

But according to the FDA, these devices were not approved by the FDA and lack the proper federal review for safety and effectiveness. In response to the FDA action, Sybaritic has agreed to stop making the products in the United States until they are in compliance with FDA quality standards.

The agreement with the FDA is part of a consent decree reached between the U.S. Department of Justice, which filed for an injunction late last year, and three of Sybaritic's top executives.
Sybaritic agreed to comply with FDA quality regulations for all of its devices and obtain appropriate agency clearance before selling or distributing any of its products. The company must also retain an independent expert to inspect its operations and to certify to the FDA that appropriate corrections have been made.

If the company fails to follow the consent decree, the FDA could order it to cease manufacturing and distributing the products and then could recall them. The company could also face damages of $15,000 a day and an additional $15,000 for each violation.

Some of the products cited by the FDA include moist steam cabinets or tubs (under names such as Hydration Station, Spa Oceana, Spa Jet and Spa Fengshui), laser systems (NannoLight MP50, LaserPeel Trimatrixx and SkinClear SVRH), ultrasound and non-invasive skin therapy systems (Dermosonic), and microdermabrasion systems (SkinBella).

Although the FDA said it is not aware of any injuries associated with the use of Sybaritic products, it still advises consumers to stop using them.

Medical malpractice has been a hot topic for many years and especially now that certain groups are calling for more restrictions on injured parties as part of health care reform. There has been much false and misleading information placed before the public. But, recently, the advocacy group Americans For Insurance Reform addressed the issue by presenting factual data. The conclusions are below:

1. Medical malpractice claims and premiums are a tiny percentage of the total costs of health care in this country.

• Medical malpractice payouts are less than one percent of total U.S. health care costs. All “losses” (verdicts, settlements, legal fees, etc.) have stayed under one percent for the last 18 years. Moreover, medical malpractice premiums are less than one percent of total U.S. health care costs as well. Dropping for nearly two decades, malpractice premiums have stayed below one percent of health care costs. Americans for Insurance Reform, “Think Malpractice is Driving Up Health Care Costs? Think Again,” http://www.insurance-reform.org/pr/AIRhealthcosts.pdf.

• The Congressional Budget Office found that “Malpractice costs account for less than 2 percent of [health care] spending.” Congressional Budget Office, Limiting Tort Liability for Medical Malpractice 1, 6 (Jan. 8, 2004).

2. Medical malpractice cases are a tiny percentage of tort cases filed each year and the vast majority settle without litigation.

•Medical malpractice cases account for only about four percent of tort cases. Examining the Work of State Courts, 2005, A National Perspective from the Court Statistics Project (2006) at 29.

•In the Harvard closed claims study, only fifteen percent of claims were decided by trial verdict. Other research shows that 90 percent of cases are settled without jury trial, with some estimates indicating that the figure is as high as 97 percent. Testimony of Neil Vidmar, Russell M. Robinson, II Professor of Law, Duke Law School before The Senate Committee on Health, Education, Labor and Pensions, “Hearing on Medical Liability: New Ideas for Making the System Work Better for Patients,” June 22, 2006 at 17.

3. Contrary to popular myth, few injured patients file lawsuits.

•Between 44,000 and 98,000 Americans die each year (and 300,000 are injured) due to medical errors in hospitals alone. Yet eight times as many patients are injured as ever file a claim; 16 times as many suffer injuries as receive any compensation. National Academy of Sciences Institute of Medicine, “To Err is Human” (1999); Harvard Medical Practice Study (1990).

•At the highest level, the estimated number of medical injuries (in hospitals and otherwise) is more than one million per year; approximately 85,000 malpractice suits are filed annually. “With about ten times as many injuries as malpractice claims, the only conclusion possible is that injured patients rarely file lawsuits.” David A. Hyman and Charles Silver, “Medical Malpractice Litigation and Tort Reform: It's the Incentives, Stupid,”59 Vand. L. Rev. 1085, 1089 (May 2006) (citing Brian Ostrom, Neal Kauder & Neil LaFontain, Examining the Work of State Courts (2003) at 23).

4. Medical malpractice claims are not “exploding”.

•According to Public Citizen’s analysis of National Practitioner Data Bank (NPDB) data, between 1991 and 2005, the total number of malpractice payments made on behalf of doctors declined 15.4 percent (with judgments and settlements); the number of malpractice payments per 100,000 Americans dropped more than ten percent. Public Citizen, Congress Watch, The Great Medical Malpractice Hoax: NPDB Data Continue to Show Medical Liability System Produces Rational Outcomes, (January 2007).

5. Medical malpractice payouts are far smaller than commonly believed and are declining.

•According to Public Citizen’s analysis of National Practitioner Data Bank (NPDB) data, “The average payment for a medical malpractice verdict in 1991 was $284,896. In 2005, the average was $461,524. Adjusting for inflation, however, shows that the average is actually declining. The 2005 average adjusted for inflation is only $260,890 — a decline of 8 percent since 1991.” Public Citizen, Congress Watch, The Great Medical Malpractice Hoax: NPDB Data Continue to Show Medical Liability System Produces Rational Outcomes, (January 2007)

•Public Citizen also found that the total number of malpractice payments made on behalf of doctors, including judgments and settlements, declined 15.4 percent from 2001-2005 (from 16,588 in 2001 to 14,033 in 2005) and “the number of payments per 100,000 people in the U.S. also fell since 2001 – from 5.82 to 4.73 – a decline of 18.6 percent. Since 1991, the number of payments per 100,000 people declined more than 10 percent.”

•Total medical malpractice payouts, for injuries and deaths caused by medical negligence in the nation, have recently hovered between $5 billion and $6 billion annually. This is less than half of what Americans pay for dog and cat food each year. Americans for Insurance Reform, Stable Losses/Unstable Rates, 2007, http://www.insurance-reform.org/StableLosses04.pdf; The Pet Food Institute puts these figures at $13 to $14 billion annually over the past few years. See, http://www.petfoodinstitute.org/reference_pet_data.cfm

The use of unnecessary force by law enforcement officers is a common and inexcusable problem. Many of the attorneys at Finch McCranie LLP have law enforcement backgrounds and recognize the inherent dangers of police work and the need at times to use force. However, this does not justify the use of unnecessary force.

The United States Court of Appeals for Ninth Circuit has recently issued an opinion addressing this issue in the context of Taser use. The Court, headquartered in California has sent a strong warning to law enforcement officers that should make them hesitate before routinely using Tasers. It ruled last week that a police officer can be held liable for delivering a high-level electric shock to an unarmed person who poses no immediate threat.

The case arose out of an incident involving a young man who was driving to his parents’ home when he was stopped for speeding. He had previously been stopped and ticketed for On the same trip, he was pulled over for not wearing a seat belt.

Angry at facing a second traffic citation, he hit the steering wheel and yelled expletives to himself and exited the car. The officer making the stop claimed the young man took one step in his direction, while the young man denied making any such move. However, it is undisputed that the young man was not armed, did not verbally threaten the officer and was not attempting to flee.

Without warning, the officer shot the young man with a Taser, which delivers a very painful, 1,200-volt electric charge. As the current immobilized him, the young man fell to the ground, fracturing four teeth.

The young man sued for assault and battery and intentional infliction of emotional distress.
The Ninth Circuit ruled that the officer was not justified in using the Taser on the young man who posed no threat, and was merely stopped for speeding.

While the the ruling is only binding on those states which comprise the Ninth Circuit, it is nonetheless important. There have been many questions raised about the dangers of Tasers, with death resulting in some instances. All courts should recognize that the routine use of potentially dangerous force is not justified.