UPDATE: 4:24 pm March 30, 2011: The Bill has finally been filed, all of 18 hours before it is to be debated. House Bill 542

Here is the relevant language:

No manufacturer or seller shall be held liable in any product liability action if:

1. The product alleged to have caused harm was designed, manufactured, packaged, labeled, sold, or represented in relevant and material respects in accordance with the terms of approval, license or similar determination of a government agency, where the approval, license or similar determination is relevant to the event or risk allegedly causing the harm; or
2. The product was in compliance with a statute of this State or the United States, …where the stature or agency action is relevant to the event or risk allegedly causing harm….

This is HUGE.

This means that a product regulated by ANY state or Federal agency would be immune from suit by North Carolina citizens who are hurt or maimed by the product which is eventually found defective.

Think: bad tires, bad cars, Vioxx, bad drugs, toys containing lead or poison, etc.

Here is a “short” list of products whose manufacturers would be immune from a law suit if that product killed you or hurt you or someone you love.

Manufacturers of 328 Types of Products regulated and approved by the US Agencies will receive IMMUNITY from law suits for defective products that maim, kill and destroy property and people.

The manufactures of defective products would receive immunity from suit because the agency is “vested with the authority of this State or of the United States to issue rules, regulations, orders, or standards, concerning the design, manufacture, packaging, labeling, or advertising of a product or a service.” Tort Reform for Citizens and Businesses: Section 3.1(b) amendment to Chapter 99B-1 (1a)

US Consumer Product Safety Commission (USCPSC) Regulated Products

Acetaminophen (products containing)

Acetic acid (products containing)

Adhesives -containing methyl alcohol

Adhesives -extremely flammable contact

Adhesives -floor covering

Adhesives nitrocellulose base

Aerosols (see self-pressurized products)

Ammonia, ammonia water (products containing) household, ammonium hydroxide

Antennas – CB base station and TV

Antennas -Omnidirectional CB base station

Antifreeze, ethylene glycol

Antiquing kits

Appliances, coal and wood-burning

Architectural glazing materials

Art Materials

Artist’s paints

Asbestos- containing patching compounds

Asbestos -containing garments for general use

Aspirin products

Baby bouncers & walkers

Balloons, plastic mixtures

Batteries, storage, wet-cell

Benzene paint solvents containing

Bicycles

Bicycle helmets

Biological specimens, preserved

Blasting caps

Bunk Beds

Butane in cigarette lighters

Carbolic acid (phenol) (products containing)

Carbon tetrachloride (products containing)

Carpets and rugs (large)

Carpets and rugs (small)

Caustic poisons (products containing)

Caustic poisons – potash (products containing)

Caustic poisons – soda (products containing)

Cellulose insulation

Cellulose sponges

Charcoal briquettes

Chemistry sets

Child-resistant packaging (see special packaging)

Chlorofluorocarbons, self pressurized products containing Acetonitrile (see glue remover)

Aluminized polyester film kite

Asbestos -containing artificial emberizing materials

Benzene (products containing) benzol

Bergamot oil (products containing)

Betamethasone (products containing)

Children’s Products (see “Toys/Children’s Products”)

Cigarette lighters

Cleaning products

Clothing (see wearing apparel, sleepwear)

Coal burning appliances (see appliances)

Combustible hazardous substances

Conjugated estrogen tablets (products containing)

Consumer product

Containers consumer-owned (portable)

Controlled drugs (products containing)

Corrosive substances (products containing)

Cosmetics

Cribs -full size

Cribs -non-full size

Cushions, infant

Cyanide salts (products containing)

Dietary supplements, iron-containing (products containing)

Disclaimer deceptive use of

Dive Sticks

Drain cleaners, liquid

Drugs, Oral Prescription -All Exceptions

Drugs -controlled

Drugs -iron containing

Drugs -oral prescription

Drugs -over the counter

Dry-cleaning solvents

Epoxy resins

Ethylene glycol (products containing)

Ethylene glycol in felt pads

Exports (noncomplying products)

Extremely flammable contents of self-pressurized containers

Extremely flammable hazardous substances

Extremely flammable solids

Eye irritants (products containing)

Fabrics

Felt-tip marking devices

Cholestyramine, anhydrous (products containing)

Clacker balls

Colestipol (products containing)

Dibucaine (products containing)

Diethylene glycol (products containing)

Diethylenetriamine (products containing)

Diglycidyl ethers (products containing)

Diphenhydramine preparations

Emberizing materials artificial, containing asbestos

Erythromycin ethylsuccinate, Suspension & granules

for suspension (products containing)

Erythromycin ethylsuccinate, tablets (products containing)

Ethanol containing mouthwash

Ethylenediamine (products containing)

Ferrous oxalate (products containing)

Fire extinguishers

Fireworks

First Aid

Flammable contents of self-pressurized containers

Flammable solids (products containing)

Flammable substances (products containing)

Fluoride (products containing)

Food

Formaldehyde (products containing)

Fuel

Furniture painted with lead containing paint

Furniture polish -liquid

Furniture polish -paste

Garage Door Openers- automatic residential

Gasoline

Glazing compounds

Heaters (see appliances)

Highly toxic substances (products containing)

Household substances

Hydrocarbons

Hydrochloric acid (products containing)

Ibuprofen (products containing)

Imported products & importers

Imports

Industrial supplies

Infant cushions

Ink cartridges dry concentrate containers

Ink-marking devices

Insulation, cellulose

Iron preparations

Irritant substances

Kerosene

Kindling & illuminating preparations

Labels

Laboratory chemicals (if educational)

Lacquers

Lawn darts

Lawnmowers power

Fertilizersdry

granular

Fuel kits with diflouro dichloromethane

Glue remover containing acetonitrile (household)

Hartshorn (products containing)

Hypochlorous acid (products containing)

Isobutane in cigarette lighters

Isosorbide dinitrate -prescription sublingual and chewable forms (products containing)

Ketoprofen (products containing)

Kites aluminized polyester film

Lead in paint (products containing)

Lighter fluid, etc. (products containing)

Lunar caustic (silver nitrate) (products containing)

Lye (products containing)

Matchbooks

Matches

Mattresses (cigarette ignition)

Mattresses (open flame ignition)

Methyl alcohol (methanol) (products containing)

Mineral oil in toys (products containing)

Mineral seal oil (products containing)

Mineral spirits (products containing)

Minoxidil (products containing)

Mirrors

Mixtures of hazardous substances

Mouthwash containing ethanol

Multiple hazard substances with

Multipurpose Lighters

Naphtha (products containing)

Neutralizers, Permanent Wave (see Permanent Wave Neutralizers)

Nitric acid (products containing)

Nitroglycerine prescription (products containing)

Oral contraceptives

Orris root powdered (products containing)

Over-the-Counter (OTC) Drugs (see Drugs, Over the Counter)

Oxalic acid and salts (products containing)

Packages, child resistance (see child-resistant packaging)

Packages, sample

Paint (lead in) (products containing)

Paint solvents

Painting kits

Paper items

Patching compounds containing asbestos

Percussion explosives

Lidocaine (products containing)

Loperamide (products containing)

Mebendazole (products containing)

Medroxyprogesterone acetate tablets (products containing)

Methacrylic acid (products containing)

Methylprednisolone (products containing)

Methyl salicylate (products containing)

Naproxen (products containing)

Nitrites (Butyl and Volatile Alkyl)

Norethindrone acetate tablets (products containing)

Pacifiers (see Toys/Children’s Products)

Pancrelipase (products containing)

Paraphenylenediamine (products containing)

Perchloroethylene in visual novelty devices

Petroleum distillates

Photographic color processing kits

Plant foods -dry granular

Poisons, caustic (products containing)

Polishing products

Potassium hydroxide

Prescription Drugs (Oral)

Pressure-generating substances

Propellant devices for model rockets

Radiator cleaners

Radioactive substances

Refrigerator doors

Refuse bins -unstable

Roof coatings

Rope, cord, string, etc.

Rugs see Carpets

Rubber vulcanizing products

Self-pressurized products

Self-pressurized products containing vinyl chloride

Sensitizers (products containing)

Signal words

Sodium hydroxide

Solder kit

Solder paste

Permanent wave neutralizers containing sodium bromate or potassium bromate

Phenol (carbolic acid)

Photodynamic sensitizer

Potash, caustic

Potassium supplements effervescent

(products containing)

Prednisone

Primary irritant

Sacrosidase (sucrase) in a solution of glycerol and water

Salt (sodium chloride)

Self-pressurized products containing chloroflorocarbons

Silver nitrate (lunar caustic)

Sleepwear, children’s, sizes 0-6x & sizes 7-14

Sodium arsenite

Sodium fluoride

Sodium/potassium hydroxide

Special packaging

Spot removers single-use

Spot removing kits

Sponges, cellulose

Swimming pool slides

Tank coatings

Thread, string, twine, etc.

Turpentine (products containing)

Varnish

Video games

Vienna paste (products containing)

Vinyl chloride (products containing)

Solvents (for Paint and other surface coatings)

Stoddard solvent

Stoves, coal & wood burning

Strong sensitizers

Sulfuric acid

Toluene (toluol)

Toxic substances

Toys/Children’s Products- All

Toys/Children’s Products- choking hazard warnings for small parts, balloons, marbles, balls

Toys/Children’s Products- balls, small

Toys/Children’s Products- caps & toy guns producing, impulse-type sound

Toys/Children’s Products- choking incidents

Toys/Children’s Products- clacker balls

Toys/Children’s Products- electrically-operated toys and children’s article

Toys/Children’s Products- games, self-pressurized -hollow plastic toys games

Toys/Children’s Products- marbles

Toys/Children’s Products- mineral oil

Toys/Children’s Products- painted with lead or containing lead

Toys/Children’s Products- pacifiers

Toys/Children’s Products -rattles

Toys/Children’s Products -sharp edges

Toys/Children’s Products -sharp points

Toys/Children’s Products -small parts

Toys/Children’s Products -model rockets

Toys/Children’s Products -model rockets, propellant

Toys/Children’s Products -train smoke

Toys/Children’s Products -use and abuse tests

Toys/Children’s Products -tubes, collapsible metal (labeling)

Toys/Children’s Products -unpackaged hazardous substances (labeling)

Vinyl plastic film

Walker-jumper

Wax containers

Waxes, paste for autos, furniture, floors and shoes

Wearing apparel

Writing instruments

Visual novelty devices -containing perchloroethylene

Volatile flammable materials

Water-repellent mixtures (masonry)

Wood burning appliances

Xylene (xylol)

Federal Drug Administration (FDA) PRODUCTS

Food safety

Tobacco products

Dietary supplements

Prescription and over-the-counter pharmaceutical Drugs

Vaccines

Biopharmaceuticals

Blood transfusions

Gene therapy

Cell and tissue based products

Medical devices

Electromagnetic radiation emitting devices (ERED)

cellular phones

airport baggage screening equipment

television receivers

microwave ovens

tanning booths

laser products

Veterinary products

Cosmetics

Sanitation requirements on interstate travel

Control of disease on products

Sperm donation for assisted reproduction

United States Department of Agriculture (USDA) Regulated Products

Meat

Poultry

Egg products

National Highway Traffic Safety Administration (NHTSA) Regulated Products

Vehicle safety

Vehicle recalls

Child safety seats

Airbags

Safe auto parts

Tire safety

Steering components

Fuel system components

Accelerator controls

Wheels that crack or break

Engine cooling fan blades that break

Windshield wiper assemblies that fail

Seats and/or seat backs that fail

Critical vehicle components that break

Wiring system problems that result in a fire

Car ramps or jacks that may collapse

Air bags that deploy incorrectly

Child safety seats that contain defective safety belts
__________________________________________________________________

HIGH COSTS TO STATES

No other state in the Nation has a law like this. The only state that is close is Michigan, which has a provision that deals only with immunity for Drug Manufacturers who receive FDA approval. Other states have had lesser versions of this bill but none had given complete immunity. This is an interesting history of “FDA defense” bills: http://www.centerjd.org/archives/studies/MIDrugImmunityF.pdf

As a result of Michigan’s “FDA Law”, the State of Michigan lost $82 MIllion dollars in “refunds” from the manufacturer of Vioxx who was accused of falsifying safety records to the FDA.

One of the reasons Michigan passed the law in 1995 was to attempt to keep Merck and Pfizer as empoloyers in the state. Michigan passed the law and Merck left anyhow. also In 2007, Pfizer announced plans to completely close the Ann Arbor, Nagoya and Amboise Research facilities by the end of 2008, eliminating 2,160 jobs and idling the $300-million dollar Michigan facility.

Can North Carolina afford to give a pass on the safety of all of these items?

Vioxx cost Michigan $82 million in additional Medicaid costs.Michigan can’t recover those damages from Merck because of the “FDA defense.” If this bill is enacted, NC Medicaid and NC taxpayers will also be left holding the bag. The Michigan Court of Appeals affirmed this “defense” on March 11, 2011.

These questions need to be asked:

WHY DOES THE LEGISLATURE WANT TO MAKE NC THE DUMPING GROUND FOR DANGEROUS AND DEFECTIVE PRODUCTS, WITHOUT CREATING A SINGLE JOB?

WHY WOULD THE LEGISLATURE LEGALIZE THE SALE OF DANGEROUS DRUGS?

HOW DID NC GET THIS PROPOSED LAW?

How did this “law” get to North Carolina? It got here from ALEC, the “American Legislative Exchange Counsel” a libertarian and conservative think tank funded by big industry with their goal of protecting corporate interests from any safety regulation.

Who funds ALEC? If you go to the link you will find a long list of manufacturers, drug makers, industrial polluters, and other “mega corporations”.

WHAT CAN I DO?? IF YOU DON’T THINK THIS IS A GOOD IDEA FOR NC, PLEASE CONTACT ANY MEMBER OF THE HOUSE SELECT COMMITEE ON TORT REFORM:

You can find them at NC House Select Committee on Tort Reform. Or here: http://www.ncga.state.nc.us/gascripts/Committees/Committees.asp?sAction=ViewCommittee&sActionDetails=House%20Select_127

Send them an email or a letter. Or give them a call. They meet tomorrow (Thursday, March 31) at 11 am. Act now, before it is too late.

Chris Nichols

I don’t have a lot of time today to dig through this case, which is 50 pages long and denser than a fruitcake, but this is, in my opinion, and “extension” on Ahlborn. also, it addresses that tricky part of Ahlborn stemming from the “stipulation” of the meds and the “either/or’ aspect of the case as presented to SCOTUS.

Here is a good summary from Med Law Blog by Michael Cassidy: 

 http://www.medlawblog.com/archives/medicare-reimbursement-tristanis-blow-to-state-medicaid-agencys-third-party-liability-collection-practices.html

Not bad for a blog concentrating on one of the more boring topics in the world: liens and subrogation.

Here are the stats as of today:

Maybe I’ll set my summer intern loose on trying to make this Blog look slick and sophisticated…. probably not.

Chris Nichols

Contrubutory Negligence is an issue that people don’t know or care about, until they face the problem themselves. Basically, in NC, even if you are hurt by someone else’s negligence, if the other person can prove you are just a little bit to blame for your injury, you are barred from any recovery. That’s right. Someone else is 99.9% to blame, and you are barred from recovery.

Columnist Scott Sexton has written a series of excellent articles on the subject and really puts a human face on this convoluted and political issue. I highly recommend reading these articles.

I’ll also add this to the mix. One of the problems with contributory negligence is that it is so often a bar to people seeking legal representation. Lawyers who represent injured people know that they could spend years working on case and lose everything at trial simply because a jury felt the Plaintiff may have played some very small part in causing the accident.

Here are some the the previous articles by Sexton:

Contibutory Negligence: it’s “an insurance company’s dream “

“Never mind that Joshua was 7 years old and was within 3 feet of the curb, or that Logan was drunk and driving on the wrong side of the road. “By way of affirmative defense, Defendant Logan pleads the contributory negligence of the decedent Plaintiff Joshua Franklin Palomares-Beckles,” wrote Rodney Guthrie, Logan’s attorney. If a jury in North Carolina decides that you are even a tiny bit at fault in this sort of case, you are entitled to nothing under state law, under a concept called contributory negligence. “In general, I’d say contributory negligence is an insurance company’s dream,” said Walter Holton Jr., the attorney who filed the lawsuit on behalf of Beckles-Palomares. “

Wreck victim faces being victimized by outdated law

“After an automobile accident in New Hanover County involving his daughter, Ashley, a student at the University of North Carolina at Wilmington, Norris has become something of an expert on a legal concept known as “contributory negligence,” an outdated and completely unfair area of insurance law used only here and in three other states. That leaves option C. “Our insurance company is also using the contributory-negligence law claim that Ashley is limited in what we can recover,” Norris said.

‘There is no lobby for the little people’ in this state

“Just four states – North Carolina, Virginia, Alabama and Maryland – still hang on to the concept of contributory negligence, a relic from English Common Law. “

Don’t believe hype that law would increase insurance rates

By Scott Sexton

JOURNAL COLUMNIST

Scott Sexton
Email
Bio

On its face, insurance law – specifically a legal concept called “contributory negligence” – is something that only a serious policy nerd could love.

That is, unless (or until) you or someone you know gets hosed by that law. Then it’s not so boring.

Contributory negligence works like this: If you’re in an accident and deemed to be just 1 percent at fault, you’re not legally entitled to one red cent to cover your damages from the idiot (or his or her insurance company) who was 99 percent to blame.

Three recent columns explored some of the more outrageous abuses of this law. Possibly the worst was the insurance-company attorney who argued that a 27-year-old man killed by a hit-and-run driver in October 2003 while changing a flat tire in Orange County was partly responsible for his own death.

It’s a shameless, outdated blame-the-victim strategy. It also seems like an easy law to change.

Yet objections remain. The state, for example, could switch to a “comparative-negligence” system. If you’re 90 percent at fault, you (or your insurance company) pay 90 percent of the damages.

“Comparative negligence is a nightmare to apply. Few people agree on the percent fault they are assessed, it increases lawsuits, is a cash cow for lawyers, and raises everyone’s insurance rates,” wrote one reader who works in the insurance industry. “If you haven’t noticed, N.C. enjoys some of the lowest auto-insurance rates in the country.”

Good point. And it’s one worth exploring.

Low-rate state

North Carolina does indeed enjoy consumer-friendly auto-insurance rates – the sixth lowest in the country, according to the N.C. Department of Insurance.

That’s not, however, because of any sense of fair play by insurance companies nor because contributory negligence keeps costs down.

The credit goes to a man who next to nobody has heard of, state Insurance Commissioner Jim Long. He is basically the final word on insurance rates in North Carolina.

Every Feb. 1, the N.C. Rate Bureau – an umbrella organization representing insurance companies – files a rate request. The bureau then makes a rate recommendation. Actuaries and attorneys with the Department of Insurance negotiate any changes with the rate bureau. If there’s no agreement, then Long decides.

“It’s a pretty long and pretty dull process unless you are an actuary,” said Chrissy Pearson, a spokeswoman for the Department of Insurance.

Given that background, I figured that Long’s thoughts on the merits of contributory negligence versus comparative merits would be worth hearing.

You can read the rest of the article by going to the Winston-Salem Journal.

-Chris Nichols
www.NicholsTrialLaw.com

Herb Denenberg writes for The Bulletin. Denenberg notes Allstate’s recent guilty plea to six federal indictments and discusses several anti-consumer practices of Allstate, including complaints by CFA, the Consumer Federation of America (http://www.consumerfed.org/). Part of his article quotes the CFA report,

“The Allstate Corporation has been at the forefront of the insurance industry in unjustifiably raising home and automobile insurance rates relative to the amount paid out in claims, in using questionable practices to settle claims and in attempting to shift costs to taxpayers.”

EXCESSIVE RATES AND PROFITS BUT ANEMIC PAYOUTS TO POLICYHOLDERS. The report notes that Allstate paid out only 59 percent of the premium dollar on claims to policyholders from 1997 to 2006. The industry average is 65 percent. In other words, CFA argues Allstate should have cut its premiums or perhaps paid out more in claims. But in CFA’s view, Allstate is now charging too much for the benefits delivered to its policyholders.

HIGH CONSUMER COMPLAINTS. The complaints filed against Allstate, many relating to claims practices, are more numerous than almost all of its major competitors. Of 13 major auto insurers, Allstate had the second highest complaint ratio in two recent years. This is based on data collected by the National Association of Insurance Commissioners.

QUESTIONABLE CLAIMS SETTLEMENT PRACTICES. CFA says Allstate has adopted an automated claims settlement procedure designed to cut claims payments to policyholders, without regard to the validity of the claim and without an examination of the claim. As a result, CFA says it can document a systematic underpayment of claims based on aggregate data. The data show that Allstate reduced its payouts by about 20 percent relative to the industry for the year 1996 through 2006.

You can read the entire report at The Denenberg Report

Chris Nichols
www.NicholsTrialLaw.com

My thought is that if a State can usurp ERISA, and the SCOTUS allows that, why would the NC Anti-subrogation provision promulgated by our Commissioner of Insurance not do the same. Yeah, I know it is the whole “federal preemption argument” but if we keep seeing “holes” created in ERISA, maybe one will get big enough one of these days. I know this is a stretch. A big stretch.

From WorkPlaceProf Blog:

Ya win some, ya lose some if you’re the ERISA bar. In this instance, whereas the Supreme Court decided to hear LaRue v. DeWolff, Boberg & Associates , 06-856, it has denied review in the ERISA inalienability case of Cox v. DaimlerChrysler (06-273).

In Cox, SCOTUSBlog commented that the issue was whether:

it violates ERISA for a state to arrange to take 90 percent of a prison inmate’s pension benefits to help defray the costs of imprisonment. The Solicitor General, asked by the Court for the government’s views, had urged the Court to bypass the appeal by Michigan’s state attorney general, Mike Cox.

The whole inalienability question within ERISA in the criminal context will continue to percolate through the Courts. For example, see this post on United States v. Novak, 04-55838 (9th Cir. Feb. 22, 2007), in which the en banc Ninth Circuit found in a 10-5 decision that the Mandatory Victim Restitution Act (MVRA) trumps ERISA’s anti-alienation provisions that normally would keep retirement benefits from being disturbed by others.

____________________

Chris Nichols
www.NicholsTrialLaw.com

The video does a great job showing how giant corporations have twisted and distorted the truth about law suits in America simply to poison jury pools. They do this so they can continue to deny responsiblity for wrong doing, and basically “save a buck” at the expense of injured people who have done nothing to cause their own injuries.

It’s about 8 minutes long and worth the watch.

http://www.youtube.com/watch?v=h85j1vNxd8A

or

_____________________________

Chris Nichols

The article below was written by a self-described conservative Christian physician who deeply questions the politics of taking away justice from injured people in the name of politics and for the goal of profitting “big business.”

This shows me that people are seeing that fairness and responsiblity are truly non-partisan issues, and that lawsuits, in and of themselves, are not “all bad.” In fact, lawyers and lawsuits have often been all that stands between the public and harm.

Remember the Little Guy
by Steven Hotze, M.D.

Shouldn’t companies and individuals who cause you harm be responsible for the damages they inflict?

You are probably aware of the lawsuits in the 1970s against Ford Motor Company and its Pinto automobile. Because of poor design, rear end crashes often caused the Pintos gasoline tank to explode into flames. Over 500 drivers lost their lives and thousands more were severely burned. Ford knew about this problem and that it would only cost $11 per car to repair but determined it was cheaper to pay the lawsuit settlements than recall the vehicles. Incredibly, Ford put their profits above the safety of their customers.

Because plaintiff attorneys were willing to file lawsuits on behalf of these injured individuals and families on a contingency basis and fight the multi-billion dollar Ford Motor Company, Ford paid hundreds of millions of dollars in judgments. Ford was also criminally charged with negligent homicide for having knowingly sold unsafe cars.

These lawsuits against Ford were based on product liability law which holds businesses responsible for any injuries caused by their products. The Ford lawsuits and resulting settlements sent a strong signal to the automobile industry. Safer cars have been the result.
Over the past decade, the Republicans in the Texas Legislature have passed a series of bills which have limited the liability of large corporations when they are found by a jury to have caused injury to their employees or their customers. This has me concerned and it should have you concerned as well.

Who wouldnt want limited liability for their actions? This is especially true of some large corporations which place their financial interests above the well being of their employees and customers.

Under current Texas law, it is hard to imagine that Ford Motor Company would have been required to pay out such a large amount of money in judgments as it did at that time.

Tort reform has dramatically limited the liability of businesses and individuals in Texas. The Texas Legislature has set limits on the amount that a business or individual can be required to pay in judgment to an injured party. No one likes the idea of frivolous lawsuits, but most individuals seem to agree that a remedy should be paid to an injured party commensurate with the damage.

Who does this current law benefit? It benefits the large corporations and the well financed who have deep pockets and the wherewithal to hire a bevy of defense attorneys. Their financial risk for shoddy workmanship and unsafe products has been dramatically reduced.

What about the small business owner or the individual with modest means? How will they afford the assistance of a lawyer to help them be fairly compensated for their losses?

As a physician and conservative, I have a healthy distrust for big government and big business. The conservative position requires accountability for actions. It appears to me that the pendulum for tort reform has swung too far in favor of big business.

Its time to remember the little guy.

by Steven Hotze, M.D.

_______________________

Chris Nichols
www.NicholsTrialLaw.com

Every once in a while someone goes a little too far in trying to avoid jury service. Looks like this guy went overboard in his attempt to avoid service on a grand jury, which amittedly, can take a lot of time.

I think the Judge did the right thing here. Jury duty is one of the very few real things we can do to actively participate in our democracy.

BARNSTABLE, Massachusetts (AP) — A Cape Cod man who claimed he was homophobic, racist and a habitual liar to avoid jury duty earned an angry rebuke from a judge on Monday, who referred the case to prosecutors for possible charges.

Daniel Ellis’ excuses to try to get out of jury duty didn’t sit well with the judge.

“In 32 years of service in courtrooms, as a prosecutor, as a defense attorney and now as a judge, I have quite frankly never confronted such a brazen situation of an individual attempting to avoid juror service,” Barnstable Superior Court Judge Gary Nickerson told Daniel Ellis, according to a preliminary court transcript of the exchange.

Ellis, of Falmouth, had been called to court with about 60 other potential jurors for possible service on a 23-member grand jury.

On a questionnaire that all potential jurors fill out, Ellis wrote that he didn’t like homosexuals and blacks. He then echoed those sentiments in an interview with Nickerson.

“You say on your form that you’re not a fan of homosexuals,” Nickerson said.

“That I’m a racist,” Ellis interrupted.

“I’m frequently found to be a liar, too. I can’t really help it,” Ellis added.

“I’m sorry?” Nickerson said.

“I said I’m frequently found to be a liar,” Ellis replied.

“So, are you lying to me now?” Nickerson asked.

“Well, I don’t know. I might be,” was the response.

Ellis then admitted he really didn’t want to serve on a jury.

“I have the distinct impression that you’re intentionally trying to avoid jury service,” Nickerson said.

“That’s true,” Ellis answered.

Nickerson ordered Ellis taken into custody. He was released later Monday morning.

Ellis could face perjury and other charges.

Chris Nichols
www.NicholsTrialLaw.com

Interestingly, the stories don’t mention that witnesses already have the ability to “affirm” to tell the truth when being “sworn in.” This was an accomodation for people who’s faith did not allow them to “swear” on the bible.

It only makes sense that a witness can provide their own religious text upon which to swear they will tell the truth. I guess the point of the excercise is that if you truly beleive in the teachings of the bible, you would not want to offend God by lying. So if you don’t belive in the Bible as holy scripture, shouldn’t you be able to swear on something you do believe in?

Honestly, I think this decision is only news because it involves the Quaran and Muslims. Had we been talking about the King James v. the New King James v. English Standard v. New American Standard v. Revised Standard (RSV) v. New Revised Standard, etc, no one would have cared. Of course, many folks argue over the “validity” of each of those translations of the bible.

I think Judge Ridgeway saw through the politics of the controversy, and realized that anything that promotes the real search for truth, would suffice. 

From the Greensboro News-Record

Muslims can now swear on the Quran when called as witnesses in North Carolina courtrooms, a Wake County judge ruled Thursday.

The decision represents a victory for the American Civil Liberties Union of North Carolina , which sued the state after two Guilford County judges rejected an offer from an Islamic center to provide county courthouses with free copies of the Quran.

“The highest aim of every legal contest is the search for truth,” Wake Superior Court Judge Paul Ridgeway wrote in an 18-page opinion. “To require pious and faithful practitioners of religions other than Christianity to swear oaths in a form other than the form most meaningful to them would thwart the search for the truth.

“It would elevate form over substance.”

The Guilford County judges argued that North Carolina law only allowed oaths to be taken on the Bible. Ridgeway agreed that a phrase in the law governing oaths, “Holy Scriptures,” refers to the Bible, but he cited other case law that would allow a Muslim to swear on the Quran.

Chris Nichols
www.NicholsTrialLaw.com

Realistically, if a sexual predator is being “smart” they will have no real identifying information on their MySpace profile. Given the absolute ease of setting up free and virtually untraceable email accounts, I don’t see any way for MySpace and the Attorney General’s office to “trace” predators to MySpace. About the only thing that i can think of would be to require sexual predators to register their ISP Providers and addresses, and trace the original source of the profile that way.

I’ll be interested to see if this actually “eliminates” any predators. It is one thing to prevent predators from coming near schools and libraries. The Internet is just so unregulatable, and is essentially one “big” play gorund for kids, and those who seek them.

MySpace to share sex offender data with states
By MARGARET LILLARD
Associated Press Writer

RALEIGH, N.C. – Faced with legal demands from several state attorneys general, MySpace.com said Monday it will immediately begin sharing data on the registered sex offenders it has identified and removed from the popular social networking Web site.

MySpace balked last week when attorneys general from eight states, including Ohio, demanded it provide data on how many registered sex offenders are using the site and where they live.

The company said federal privacy laws required the states to file subpoenas or other legal requests before it could release the information. MySpace general counsel Mike Angus said company officials met with North Carolina Attorney General Roy Cooper and Connecticut Attorney General Richard Blumenthal last week to sort out the details of those requests.”We hope to get requests from every state,” Angus said. “From day one, we have preserved all the information in the hopes of getting these requests.”

MySpace, owned by media conglomerate News Corp., obtained the data from Sentinel Tech Holding Corp. The companies partnered in December to build a database with information on sex offenders in the United States, and Angus said MySpace has already used the database to remove about 7,000 profiles out of a total of about 180 million.

The companies “developed ‘Sentinel Safe’ from scratch because there was no means to weed (sexual predators) out and get them off of our site,” Angus said.

Last week, attorneys general in North Carolina, Connecticut, Georgia, Idaho, Mississippi, New Hampshire, Ohio and Pennsylvania asked for the Sentinel data. The company initially refused, saying the federal Electronic Communications Privacy Act required the states to file a subpoena or similar legal request before it could release the data.

North Carolina filed a civil investigative demand Monday, and states including Ohio, New York and Connecticut also pursued subpoenas. Blumenthal said his subpoena “compels this information right away – within hours, not weeks, without delay – because it is vital to protecting children.”

Cooper said the information from the Sentinel system could potentially be used to look for parole violations or help in investigations. He said lawmakers in North Carolina are considering legislation that would further restrict access to social networking Web sites, including one that would require parents’ permission for minors to set up a profile.

READ THE ORIGINAL ARTICLE HERE

Chris Nichols
www.NicholsTrialLaw.com

Link: The Cyberlaw Encyclopedia version 2.0.

Welcome to Alan Gahtan’s Cyberlaw Encyclopedia ™ The I.T., I.P. and Electronic Commerce Legal Portal(tm)

-Chris Nichols
www.NicholsTrialLaw.com

17. Procedure For Making Claims of Copyright Or Intellectual Property Infringement

We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and at its discretion, disable and/or terminate….

Anyhow, I’m guilty of typos all the time, and I do try to use the spellcheck, but the above goof is, well, pretty bad.

-Chris Nichols

Here are some simple steps to follow to protect your client’s rights:

Read the Background and In-Depth Analysis of the Lien

Get caught up with the basics of the law by reading the article I wrote for the North Carolina Academy of Trial Lawyers magazine, Trial Briefs

• Download SEHP_Trial_Briefs_Article_by_Chris_Nichols.pdf (2430.4K)

Read the Current Law

Now that you know the background of the law, you need to catch up on the latest developments (like the law being amended) so read the posts on this blog listed in the left column in the category “NC State Employees Health Plan”.Or click HERE for a chronological (most recent first) listing of all the posts from this Blog covering the lien.

Get your Client’s Authorization

You need to have your client give the SEHP authorty to release information to you. This is essantially a HIPPA form for SEHP.

• Download SEHP_Authorization_Form.pdf (47.2K)(HIPPA essentially)

Request the Lien

Download the SEHP Lien request form.

• Download SEHP_Lien_Request_Form.pdf (23.0K)

You are on your way to negotiating the lien.

Chris Nichols
www.NicholsTrialLaw.com

I’ve been getting a case ready for trial, and I tried something new that I thought was quite helpful and I wanted to share. I always dread (and my staff dreads) the redacting of the medical records and police report for trial exhibits (and demand packages).

Why We Redact

Because of the collateral source rule, I always “white out” all insurance information on bills, auto insurance information on police reports, and other matters that I know will be objectionable or prohibited at trial. (For the non-lawyer, you may not know, but we are not allowed to tell the jury, or even suggest to the jury that the negligent person getting sued actually has automobile insurance, or, that it is the auto insurance company that will pay for the damages, or, that it is the insurance company that is refusing to make a fair settlement. Yes, we know that’s unfair, but those are the rules.)

The Messy Options of Redaction

Over the years I’ve used liquid “white out”, tape strip white out, roll on white out, and just about ever product they have released. That resulted in an often messy exhibit, requiring “whiting out” recopying, whiting out and recopying. No fun.

Scanners Work Better than White Out

Despite the fact that I have been using a scanner in my practice for a while, I kept using the “old school” whiteout method out of habit. No more. This time I simply went straight to all my scanned documents.

A Few Simple Steps

• I saved the medical bills and the police report under new file names, such as “medical records redacted.doc” and “police report redacted.doc “.
• I then used PaperPort to access the .pdf file and I then used the “eraser” function to simply “erase” the information that I normally “whited out”.
• When I was done, I printed the pages out and they were ready to go to Kinko’s for enlargement.

You could use any program that allows you to add text or images to a .pdf file. You could probably even “paste” a .pdf image into a Word document and use the “picture editor” to erase info, though the tools in PaperPort are much easier.

The Advantages Over Old School Methods

The “eraser” function was so much more precise and easier than the old method, plus, it doesn’t leave “white out shadows” or smudges, and it erases the problem the first time, every time. Also, it makes it easy to make multiple copies with different redacting marks, such as for a police report where you are not sure how much information a judge will let in at trial, so you have to have “choices” on the exhibit.

I’m not sure why this didn’t occur to me earlier, but I suppose that old habits die hard sometimes. 

Chris Nichols
www.NicholsTrialLaw.com