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March 14, 2012 In General

Legal Tip: Take Photos of the Contents of Your Wallet and Store Them on Your Smartphone

Legal Tip: Take Photos of the Contents of Your Wallet and Store Them on Your Smartphone

Identity theft is rampant.  You hear horror stories over and over again.  To protect yourself, you should avoid supplying personal and financial information online except in connection with verifiable, reputable sites.

But what about “old style” identity theft?  Indeed, sometimes despite your best efforts, there are occasions where your wallet, purse or briefcase is lost or stolen.

One way to protect yourself is to take a photo of the contents of your wallet or and store them in a password protected app on your smartphone — e.g. take a photo of the front and back sides of your credit cards, your license, and your health insurance card.  Indeed, in the unfortunate event your wallet is stolen, you will need to call your bank and credit card companies to cancel your cards, and it would be helpful to have their customer service numbers readily available along with your account information.  Having photos will also enable you simply to remember what cards are actually in your wallet, too.  (Not to mention, having the photos on your smartphone can be handy for those times when you forget your wallet and need your ID or health insurance card, for example.)

CAUTION: Store photos of your cards only if access to your phone is password protected, or if you use an phone app that is password protected. The last thing you want is to have your phone stolen or lost — as if that isn’t bad enough — and to compound that problem by having your credit card info inadvertently available to the thief as well.

Either way, though — whether it involves online or “old style” identity theft — you should timely and carefully monitor your credit card and bank statements for unauthorized or fraudulent transactions.  Under the law, you are NOT responsible for fraudulent transactions if you timely discover and report them.

March 13, 2012 In General

The Obamacare case to be heard by the Supreme Court in only 2 weeks

The Obamacare case to be heard by the Supreme Court in only 2 weeks

I posted previously about the Obamacare cases that were on a collision course to the Supreme Court.  The most eagerly anticipated question before the Court is the constitutionality of the individual mandate — that is, does the federal government have the power to require someone to purchase something?

Three of the 13 federal appellate courts have now ruled on Obamacare.  The 4th and the 6th Circuits upheld the individual mandate, whereas the 11th Circuit deemed it unconstitutional.  (The 6th Circuit is where I clerked.  It covers Tennessee, Kentucky, Ohio and Michigan).

It’s a fascinating issue with all sorts of wide-ranging legal and historical implications, and it’s now set to finally be heard by the Court on Monday, March 26th.

An article in The New York Times offers a glimpse into the importance of the case — and to the legacy in particular of Chief Justice Roberts — noting that “[t]he six hours the court will devote to arguments is a testament to the case’s importance.  The last time the court heard longer arguments in a politically charged case was in 1966, over the Voting Rights Act, a crowning achievement of the civil rights movement. And the last time the Supreme Court ruled that a major piece of economic legislation was beyond Congressional power to regulate commerce was in 1936, when the court struck down minimum-wage and maximum-hour requirements in the coal industry.”

The case will have important political implications as well.  Indeed, considering the length of time it generally takes for the court to issue their written decisions following argument, the case opinion will likely be handed down just in time for the final stretch run of the upcoming presidential race.

Stay tuned for a short summary and primer on the precise legal issues involved.

In the meantime the lawyer for the parties challenging Obamacare.  He is a former law school classmate of President Obama, and a former Justice Department official in charge of appearing before the Supreme Court to defend similar laws passed by Congress.

March 8, 2012 In General, Personal Injury

Outrageous & Frivolous Lawsuit Verdicts – Fact or Urban Myth?

Outrageous & Frivolous Lawsuit Verdicts – Fact or Urban Myth?

Everybody has probably seen them at one time or another — The Stella Awards — an annual list of the most outrageous lawsuits. The Awards are named after Stella Liebeck, the lady who sued and won a multi-million dollar verdict against McDonald’s for spilling hot coffee on herself.

Some of the more noteworthy Stella Award winners include:

  • The woman who won $1.7 million from Winnebago after putting her RV on cruise control at 70 mph, and then getting up to go make herself a sandwich in the back. She claimed that Winnebago should have warned her that she couldn’t leave the driver’s seat after putting the cruise control on.
  • A 19 year old in Los Angeles won $74,000 in medical expenses when his neighbor ran over his hand with a Honda Accord while the teenager was trying to steal a hubcap.
  • A woman who was awarded $80,000 after breaking her ankle tripping over a toddler who was running inside a furniture store, even though the toddler was her own son.

These examples are humorous, and indeed, the list goes on and on with other silly examples. The only problem is that ALL OF THESE LAWSUITS ARE ENTIRELY FALSE!

Even the underlying McDonald’s hot coffee case itself has reached unwarranted levels of urban myth-ism.  If you want the REAL story behind the case, click here for more info on why the final verdict in that case was actually quite reasonable under the circumstances.

Why do I bring up these awards? Because you wouldn’t believe the number of people I talk to who bring up these “cases” as examples of what’s wrong with our legal system.

The problem is that these wild misconceptions foster the type of false notion perpetuated by insurance companies and politicians who claim that there’s no rhyme or reason to our judicial system — which, of course, is the sort of “problem” that they just happen to have a government solution for.  How convenient.

Well, take it from a lawyer who’s in the trenches everyday: despite what you may hear — the concept of jackpot justice is exceedingly rare.  Are there occasionally exceptions and outlier verdicts? Absolutely. Just like there are times when clearly negligent defendants get away with maiming people.  But both situations are exceptions and hardly the norm.

Is the system expensive and in need of tweaking here and there?  Sure.  Just like everything else in life, it can be improved.

But good policy decisions aren’t made by throwing out the baby with the bathwater — and cutting off people’s legal rights in the meantime — based on urban myths perpetuated as fact.  That makes absolutely no sense at all.

So, don’t believe the hype.  Do your own homework before you fall hook, line and sinker for a story that sounds too crazy to be true.  Because most times, it isn’t.

March 5, 2012 In General, Personal Injury

Scalded Privates: The Short (But Real) Story Behind the Supposedly "Frivolous" McDonald’s Hot Coffee Lawsuit

Scalded Privates: The Short (But Real) Story Behind the Supposedly “Frivolous” McDonald’s Hot Coffee Lawsuit

“Can you believe it?  Some lady got millions for burning herself with her own hot coffee from McDonald’s!” 

You’ve no doubt heard all the talk before.  The case has become the poster child for so-called frivolous lawsuits and politicians screaming for silly tort reform.  The verdict supposedly represents everything that’s wrong with America and the legal system.

Of course, there’s only one problem: the legend has outgrown the truth.

As Paul Harvey used to say: “And now, here’s the rest of the story.”

  • The plaintiff was Ms. Stella Liebeck.  She was a grandmother who attempted multiple times to settle her case with McDonald’s.  They refused.
  • She wasn’t driving down the street when she got burned.  She was a passenger in a stopped vehicle.  They had ordered coffee at the drive-thru window.  After receiving the order, her grandson pulled his car forward and stopped momentarily so that she could add cream and sugar. The coffee spilled when she was attempting to remove that hard plastic lid from the little cheap styrofoam cup.
  • The coffee wasn’t just hot — it was scalding.  Indeed, it was discovered during the case that McDonald’s actively enforced a requirement that its restaurants keep coffee at 180-190 degrees Fahrenheit — only a few degrees away from the boiling point! By comparison, home coffee makers generally maintain coffee at 135-140 degrees.
  • Notwithstanding, a McDonald’s’ quality assurance manager testified that the company enforced the 185 degree requirement even thought they knew a burn hazard existed with any food substance greater than 140 degrees, and that it was not fit for human consumption because it would burn the mouth and throat, and cause full thickness burn injuries to the skin in only 2-7 seconds.
  • In fact, McDonald’s produced documents showing that there were more than 700 other claims by other people similarly burned by its coffee over a 10- year-period. McDonald’s quite clearly knew the risk involved and simply chose to ignore it.
  • Ms. Liebeck’s injuries were legitimate.  In fact, they were horrendous.  Her vascular surgeon determined that she suffered full thickness burns (3rd degree burns) over 6 percent of her body — including her inner thighs, perineum, buttocks, and genital and groin areas. (See the photo below if you have a strong enough stomach.)
  • She was hospitalized for 8 days, during which time she underwent skin grafts in her genital area.
  • Despite these grotesque injuries, Ms. Liebeck merely asked McDonald’s to pay for the cost of her medical treatment, and offered to settle the case for only $20,000. They refused.
  • At the end of the day, this wasn’t a runaway jury.  Indeed, Ms. Liebeck was only awarded $200,000 in compensatory damages. And even this amount was reduced to $160,000 because the jury found Ms. Liebeck 20 percent at fault for the spill, and thus they made a corresponding 20% reduction to the damages.
  • Based on the evidence of past claims and McDonald’s conscious decision to ignore a substantial risk, the jury also awarded $2.7 million in punitive damages.  The idea behind punitive damages is to make sure the defendant is properly motivated to change its conduct by taking into account the fact that there were other instances of egregious damages for which they might have escaped appropriate responsibility. And even then, the $2.7 million punitive verdict only equaled about 2 days of coffee sales at McDonald’s.  2 whole days.
  • And the court reduced even that amount to only $480,000.

So take a look at the photo and ask yourself whether you’d willingly trade those injuries and skin grafts to genitalia for a mere $600,000.

No way.  Not me.  No thanks.

Doesn’t sound so “frivolous” anymore, does it?

February 22, 2012 In General

Bedbugs and the Law: Use this Helpful Website to Check your Hotel Before you Travel

Bedbugs and the Law: Use this Helpful Website to Check your Hotel Before you Travel

Lawyer John Day at the Day on Torts Blog has an interesting post today about a recent article concerning bed bug litigation fueled by an explosion in hotel bed bug infestations across the country.  He cites these statistics from the article:

Although hotels have become familiar with the surge of bed bug claims in recent years, the volume and nature of such claims are expected to continue to grow. Bed bug infestations are reported to have increased 300% nationally between 2000 and 2001, 70% between 2001 and 2002, and 70% between 2002 and 2003.22 Approximately 20,000 bed bug reports have been made to bedbugregistry.com since summer 2010 for hotels throughout the United States.

The most interesting part of the quote?  www.BedBugRegistry.com — a website where travelers and consumers can check out prospective hotels.

You can bet I’ll be using that website before I travel.

February 6, 2012 In Medical Malpractice

Law Talk: Inspector General Report Shows Only 14% of Hospital Errors Are Actually Reported

Law Talk: Inspector General Report Shows Only 14% of Hospital Errors Are Actually Reported

For all the talk about frivolous lawsuits and the need for tort reform and damage caps, the Inspector General of the Department of Health and Human Services recently released a report showing that only 14% of hospital errors are actually ever even reported.  Moreover, the report showed that even when errors were identified, most hospitals rarely changed their policies and practices to prevent repeat errors, saying the event did not reveal any “systemic quality problems.”

One example of serious hospital error is wrong site surgery, which is estimated to occur up to 6 times per day in the United States.  One such example is a 3 year old Oregon boy who was recently scheduled for surgery to correct a lazy left eye but wound up having unnecessary surgery on his right eye!

Another recent study released in the journal Health Affairs found that fully one-third one-third of hospital visits lead to injury, with as many as 90% of hospital errors are missed by current reporting systems. Further, the report showed that as many as 44% of the errors could and should have been prevented.

Patients and families should take great care to be a diligent partner in your own health care.  Ask questions, monitor your progress and medications, do your own research, and ask more questions!

If you suspect that you or loved one have been the victim of one of these all-too-common errors, call an attorney to see about your rights and how you can help prevent against similar errors for others in the future.  In the light of the ineffectiveness of the voluntary reporting systems currently in place, a robust judicial remedy is a much-needed tool for accountability and proper deterrence of avoidable errors.

If you need help, feel free to call our office for a free consultation.  You can also browse our website for lots of helpful information about medical errors and the legal process involved.

January 25, 2012 In Estate Planning

Change to the Tennessee Inheritance Tax Proposed

Change to the Tennessee Inheritance Tax Proposed

Governor Bill Haslam and Republican leaders in the state legislature have proposed changes to the Tennessee Inheritance Tax as discussed recently in an article in The Tennessean.  The current Tennessee Inheritance Tax Exemption amount is $1 million with inheritance tax rates ranging from 5.5% – 9.5%.  The proposal would raise the exemption to $1.25 million and will continue to raise the exemption incrementally over the next several years to $5 million.  The current Federal Estate Tax Exemption amount is also $5 million.

The cut in inheritance tax would cost the state of Tennessee approximately $14 million a year and is paired with a proposal to a reduction in state sales tax on food.  Democrats have expressed little opposition to cutting both taxes.  Haslam plans to cover the tax loss with rising revenue from other taxes.

The change to the Tennessee Inheritance Tax would keep wealthy residents from leaving Tennessee and avoid the sale of family businesses to pay death taxes.

January 19, 2012 In Medical Malpractice

Law/Medical Tip: Some Tips to Avoid Potentially Fatal Pharmacy Mix-Ups

Law/Medical Tip: Some Tips to Avoid Potentially Fatal Pharmacy Mix-Ups

Most pharmacists do a wonderful job. However, preventable mistakes occur more often than you might think.

We recently posted the news story about the poor pregnant woman who was mistakenly dispensed a cancer drug with side-effects that included induced abortion.  Moreover, in just the past few years, our firm has personally represented 2 different plaintiffs in cases involving 2 separate national chain pharmacies that mistakenly dispensed the wrong medication. And unfortunately, it had serious consequences in those couple of instances — so bad, in fact, that we ended up settling those cases for amounts exceeding six figures to cover the medical bills and impairment of life.  Feel free to call us if you or a family member find yourself in a similar situation and need help.

Of course, the best option is to avoid being a plaintiff in the first place. So protect yourself on the front end.  Resolve to be a responsible partner in your own healthcare. Communicate with your pharmacist and other healthcare providers. Don’t fall victim to the “white coat mentality” where you are intimidated to follow-up or ask what you might think is a stupid question.  ALWAYS ASK EACH AND EVERY QUESTION YOU MAY HAVE, NO MATTER HOW DUMB YOU THINK IT MIGHT BE.  Also, stay vigilant about your medications. Know what your pills are supposed to look like, and what your dosage is supposed to be, and then check all prescriptions carefully (even refills) to make sure you have the correct medication.

January 17, 2012 In Estate Planning, Uncategorized

Too Many Cooks in the Kitchen

Too Many Cooks in the Kitchen

There are a lot of different phrases and slogans to describe a situation where you have too many people in charge. Democracy may be preferable in some situations, but your estate plan is often not one of those situations. People often tell me they want to be fair so they want to name all their children as executors, trustees or powers of attorney at their death or incapacity. They feel that naming everyone will insure that things go smoothly and that there is no tension among the siblings that one child was treated preferentially. In fact, naming multiple children does not relieve tension or promote harmony…it creates tension, confusion and sometimes complete chaos.

As I frequently tell the disgruntled sibling who is upset that his or her brother or sister was named as trustee or executor, serving in these roles is a job, not a privilege. As a beneficiary, you get to sit back, let someone else do the work and then collect the proceeds. As an executor or trustee, you have to do all the work, deal with the disgruntled beneficiaries and then receive, in many cases, the same proceeds as the person who got all the benefits without any of the work.

The decision as to who will serve in these important roles is a big decision and should not be taken lightly. But in many cases, less is more. One person or entity is often the best choice. Two can insure that checks and balances are in place in case one person is out of line. More than two guarantees administrative headaches, fighting and taking sides. The administrative process of probate and trust administration is challenging enough because it usually involves families and money, two very emotionally-charged topics. When you add the grief from the loss of a loved one, too many cooks in the kitchen adds insult to injury. Instead of looking at what will be viewed as the most fair, consider who is the best-suited for the task and the most able to navigate family issues and money. In so doing, the result is often more fair for everyone. Unfortunately, fair or not, too many cooks in the kitchen rarely leads to a desirable result.

January 17, 2012 In General

Law Talk: Submit your claim online to recover free money/property!

Law Talk: Submit your claim online to recover free money/property!

Ever wonder what happens to money and property that gets “lost in the shuffle” so to speak?

Examples: that old utility deposit or lease deposit you or your wife forgot to follow up on before you moved; or the last interest payment that was due in your old savings account that you closed; or maybe your mom or dad forgot about an old safety deposit box containing old jewelry or family heirlooms?

It’s actually VERY common.  Indeed, if you forgot about a deposit (or didn’t even know about it), how could you possibly even know to claim your refund, right?

Ever wonder what happens to that money or property?

This is referred to legally as “unclaimed property,” and by law the holder of the property (i.e. the bank, the landlord, the utility, etc.) must turn it over to the State along with information about the name and last known address of the owner.  They CANNOT keep the property; however, they are not required to track down the owner, either.  They can simply turn it over to the State and be done with it.

Literally MILLIONS of dollars in unclaimed funds are turned over to the State of Tennessee each year.  But here’s the good news — the State maintains a website where you can do a name search and then claim your property at no cost.  You can search for yourself, your parents, your kids, your friends, etc.  And then just submit a claim form with identifying information as needed and the State will turn the property over to you.

As noted above, it is QUITE common for people to forget about small deposits here and there.  I personally learned about an old utility deposit from back when I was in college and got my refund!  It wasn’t much, but every little bit helps!

Use the Comment section below and share any success stories you have finding old/lost property or funds.

[TIP: Be sure to also search in other states where you may have lived, transacted business, or maintained accounts. Just type in Google the words “unclaimed property” and the state you want to search.]

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