KCLawyer
Monday, June 30, 2003
Blogs and Free Speach
The Ninth Circuit Court of Appeals has ruled that web loggers, website operators and e-mail list editors can't be held responsible for libel for information they republish, extending crucial First Amendment protections to do-it-yourself online publishers. One implication is that bloggers cannot be sued as easily. The court based its decision on a section of the 1996 Communications Decency Act, or the CDA. That section states, "... no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Three cases since then, Zeran v. AOL, Gentry v. eBay and Schneider v. Amazon, have granted immunity to commercial online service providers. Batzel v. Smith
Work Comp Insurance Soars
Across the country, the cost of workers' compensation insurance is soaring at the highest rate in nearly a decade, adding yet another heavy burden on businesses and the struggling national economy. The governors of Florida, West Virginia and Washington have called special sessions of their Legislatures this year to find ways to contain costs, and elsewhere, thousands of bills on workers' compensation have been introduced. In the mid-90's, expenses for workers' compensation insurers dipped and profits skyrocketed just as the stock and bond markets were at their most exuberant. Now, after dropping their prices below the cost of covering claims in a fierce battle for market share, and confronted with dismal investment returns, the insurers are hitting their customers with astounding price increases. The pace of the premium increases picked up after the insurance industry lost at least $40 billion in the terrorist attacks on Sept. 11.
Missouri companies in higher risk categories are facing workers' compensation premium increases higher than the Missouri average of nearly 15 percent for 2003. The premium increases are coming as the amount insurance companies are paying to cover workers' compensation claims has dropped for the second year in a row in the state, according to the Missouri Department of Insurance.
In frequency of claims, Missouri is higher than the national average but lower than Arkansas, Iowa, Nebraska and Oklahoma. Missouri experienced 6,496 claims per 100,000 workers compared to a regional high of 7,568 in Oklahoma and a low of 5,633 in Illinois. The national average is 6,474.
For complete story, search
Joseph B. Treaster, The New York Times, 06/23/2003
http://archives.nytimes.com/archives
New Boating Law in Missouri
Starting in 2005, young people will have to pass a boating safety course before they can cruise Missouri's public lakes. The safety requirements will not apply to rivers. Supporters said the bill was aimed primarily at the Lake of the Ozarks. The safety course requirements will apply, beginning Jan. 1, 2005, to anyone born after Jan. 1, 1984. The bill prohibits any law officers from stopping boaters for the sole purpose of checking whether they have safety identification cards. The minimum age to legally drive a boat will remain 14.
Friday, June 27, 2003
Bob Knight v. Indiana University
A hearing was scheduled for Sept. 8 to determine whether Bob Knight's wrongful dismissal lawsuit against Indiana University should proceed to trial. A judge set the hearing following the university's request to dismiss the lawsuit by its former basketball coach. Knight, who was at Indiana for 29 years and is now the coach at Texas Tech, sued for breach of contract. The lawsuit is one of four the university faces related to Knight's employment and subsequent dismissal.
Thursday, June 26, 2003
Sodomy Law Struck Down
The Supreme Court struck down a ban on gay sex, ruling that the law was an unconstitutional violation of privacy. The 6-3 ruling reverses course from a ruling 17 years ago that states could punish homosexuals for what such laws historically called deviant sex. The case is a major reexamination of the rights and acceptance of gay people in the United States. Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer agreed with Kennedy in full. Justice Sandra Day O'Connor agreed with the outcome of the case but not all of Kennedy's rationale. LAWRENCE v. TEXAS
Tuesday, June 24, 2003
Asics v. Target
Japanese athletic shoemaker Asics Corp. is suing Target Corp. for trademark infringement, claiming the discounter is selling a style of ProSpirit-brand shoes with a stripe logo that is similar to Asics' design. The lawsuit, which was filed in U.S. District Court in Minneapolis, accuses Target of trying to pass off its lower-priced shoes as Asics shoes.
In-House Counsel Inject Insurance into Case
Here is a good reason that you may not want an insurance company's in-house counsel representing an insured in a liablility lawsuit in Missouri. In Richter v. Kirkwood, the plaintiff in an auto accident case wanted to tell the jury in voir dire that the defendant was being represented by an in-house attorney employed by the defendant's insurance company. The defendant argued that this impermissibly injected the existence of insurance coverage into the case. But the Missouri Court of Appeals' Southern District disagreed.
"It was within the trial court's discretion to allow plaintiffs' attorney to show that defendant's attorney was an employee of Allstate to ascertain whether that circumstance would result in bias or prejudice on the part of prospective jurors," wrote Judge John E. Parrish for the court.
Monday, June 23, 2003
Porn in the Library
A divided Supreme Court ruled that Congress can force the nation's public libraries to equip computers with anti-pornography filters. The blocking technology, intended to keep smut from children, does not violate the First Amendment even though it may shut off some legitimate, informational Web sites. The court said because libraries can disable the filters for any patrons who ask, the system is not too burdensome. The 5-4 ruling reinstates a law that told libraries to install filters or surrender federal money. US v. Am. Library Ass'n, Inc.
Thursday, June 19, 2003
Unexpected Waste Falling from the Sky
A Santa Cruz, California man won $3236.00 in a suit against American Airlines alleging that one of the company's planes released two chunks of toilet waste, known euphemistically as "blue ice," onto the skylight of his boat. After the chunks came crashing down and damaged his boat, Ray Erickson tracked down the plane, American Airlines Flight 1950, and sued in small claims court.
Harry Potter Suit
An $100 Million lawsuit has been filed by the "Harry Potter" author J.K. Rowling and the US Publisher against the New York Daily News for the alleged unauthorized disclosure of excerpts from the newest book prior to its release. The lawsuit alleges a violatiojn of Rowling's intellectual property rights and a copyright infringment.
J.K. ROWLING AND SCHOLASTIC, INC. v. NEW YORK DAILY NEWS CO.
Wednesday, June 18, 2003
Jackson County Jury Finds for Tobacco Companies
A Jackson County jury has decided that Linda Welch from Springfield, Missouri could not hold cigarette companies to blame for her lung cancer. Welch had been seeking some $9 million in compensatory damages plus punitive damages from Philip Morris USA, R.J. Reynolds Tobacco Co. and Brown & Williamson Tobacco Corp. Welch alleged in her lawsuit that she had developed cancer as a result of 30 years of smoking and that the companies did not provide enough warning about the dangers of their products. The jury deliberated for six hours in the Independence courthouse before finding the tobacco companies not liable for the alleged damages.
Alienation of Affections Claims Abolished in Missouri
The Missouri Supreme Court has abolished the tort of alienation of affections, ruling that it is "grounded in antiquated concepts of property interests in a spouse." In the case on point, Katherine Helsel, of St. Joseph, sued Dr. Sivi Noellsch in 2001 claiming alienation of affection, alleging that Dr. Noellsch intentionally interfered with Ms. Helsel’s marriage to David Helsel. A Buchanan County jury agreed with Ms. Helsel and awarded her a $75,000 judgment in her favor in March 2002. The found that by abolishing the tort of alienation of affection it was bringing Missouri in line with the overwhelming majority of jurisdictions that do not recognize the tort. It is premised on the antiquated concept that a husband has property rights in his wife, who was viewed as a valuable servant to her husband. It is not useful for preserving marriages and protecting families because alienation of affection suits usually are brought after a marriage is over, often are based on a motive of revenge rather than reconciliation, and publicly reveal intimate details of a marriage's breakdown. The ruling leaves only eight states that still allow alienation of affection claims to be filed. Hawaii, Illinois, Mississippi, New Hampshire, New Mexico, North Carolina, South Dakota and Utah still allow the claim.
Katherine Louise Helsel, Respondent v. Sivi Noellsch, D.C., Appellant.
Case Number: SC85053
Tuesday, June 17, 2003
Multiple Lawsuits
In Missouri, Section 509.290(8), RSMo 2000, states that abatement of an action is proper when "there is another action pending between the same parties for the same cause in this state." Where two suits have been filed between the same parties in different states, the doctrine of abatement does not apply. Accordingly, the court of appeals found that the trial court erred in dismissing Shelter Insurance Company's petition for declaratory judgment on the grounds that a similar action was pending between the parties in Illinois.
Shelter Mutual Insurance Company, Appellant, v. William Marquis d/b/a Brakes N´ More, Respondent
Friday, June 13, 2003
Insurance Settlement: Does an insurer need the insured's consent?
Where an insurance policy grants to the insurer the "right and duty" to defend any claim or suit for covered injury or damage, the insurer need not obtain the insured's consent prior to settling with a third party even though it leads to the loss of the insured's potential claim for malicious prosecution, injures their reputation, or impacts their future insurability. California Appellate Districts
HURVITZ v. ST. PAUL FIRE AND MARINE INS. CO. (06/12/03 - No. B158885)
Anacure Medical Device
Guidant Corporation, one of the country's largest makers of medical devicesm has plead guilty to 10 felonies, admitting that it lied to the government and hid thousands of serious health problems, including 12 deaths, caused by one of its products. This has resulted in $92.4 million in criminal and civil penalties, the largest ever imposed against a maker of medical devices for failing to report problems. The problems with the device, which was used to treat a weakened blood vessel in the abdomen without surgery, centered on the system used to insert it. The equipment could become lodged, potentially requiring emergency surgery to remove it. Guidant hid results that its product failed to work properly about one of every three times it was used. If you received the Ancure Endograft System, call the Law Firm of Herron & Lewis (816-361-1300) to discuss your legal rights.
Thursday, June 12, 2003
Michael Jackson Settlement
Pop star Michael Jackson settled a $12 million breach of contract lawsuit by his former top adviser, avoiding a trial that threatened to spill details of his financial empire and personal life into open court. The legal fight was with Myung-Ho Lee and his firm Union Finance and Investment Corp.
Wednesday, June 11, 2003
Coral Calcium Supreme
Claims that a calcium supplement made from dead marine coral can cure everything from heart disease to cancer are too good to be true, federal fraud fighters said Tuesday, announcing legal actions against marketers of the product. The Federal Trade Commission is asking a federal court in Chicago to shut down an operation that sells Coral Calcium Supreme, a product advertised with one of the most widely run infomercials on cable television this year. If you have purchased this product, call us at 816-361-1300.
Tuesday, June 10, 2003
Paxil Alert
Children and adolescents should not be given the anti-depressant Paxil, British health regulators said today after new research indicated that the risk of suicidal thoughts and self harm is higher in youngsters taking the drug.
Mold
It has rained quite a bit this Spring. Can water cause a problem in your home or business? Yes it can, especially if it causes mold. Stachybotrys chartarum (a.k.a. atra) to be specific. Mold related claims have recently resulted in an alarming number of lawsuits. Some blame mass hysteria for this sudden rush to litigate. However, mold remediation can be expensive and few homeowners are willing to shoulder the burden alone. Insurance companies have attempted to place limits on mold claims thus there may be no coverage to repair the problem. With an estimated 20% of all homes experiencing at least some mold-related problems, the larger perspective amounts to a multibillion dollar problem. And these values don't even include costs associated with personal injury, medical expenses, or commercial and public properties where cases of "Sick Building Syndrome" may run into the millions.
The ability to recover damages for a mold claim is largely dependent on the mechanisms responsible for mold contamination. Herein lies the need for detailed investigations involving contamination specialists, building engineers, and physicians. A number of juries have rendered substantial verdicts in cases in which it is alleged that mold has caused personal injury. In many cases involving toxic mold, family members often complain of some of the following health problems: Chronic colds, Flu-like symptoms, Chronic headaches, Bloody noses, Coughing, Arthritic-like aches, Sinus congestion, Equilibrium or balance loss, Upper respiratory distress, Irritation of the eyes, nose or throat, Skin rashes and Nausea. Most physicians are unfamiliar with mold claims and thus may fail to properly address the issue. In addition, most attorneys lack the experience in the toxic tort field to even be aware of the extensive issues involved in such cases. Furthermore, such cases often involve complex insurance coverage issues. A bad decision by any party in choosing legal counsel, will prove to be a costly mistake.
Monday, June 09, 2003
GM Recalls 2002-03 Buick Rendezvous:
General Motors Corp. announced today that it is recalling about 107,000 model year 2002-03 Buick Rendezvous vehicles to repair the rear liftgate.
All 2002 and some 2003 models are involved, the world's No. 1 automaker said. Of the total, about 95,000 of the crossover sport utility vehicles are in the U.S. and 12,000 are in Canada.
In severe crashes, the liftgate structure may fracture and the liftgate may separate from the latch assembly and open. In one case, GM said, a person in a vehicle was injured after the liftgate tore away from the latch.
Monkeypox:
A virus similar to smallpox apparently jumped from an imported African rat to pet prairie dogs, infecting what are feared to be dozens of people in three states and marking the disease's first appearance in the Western Hemisphere.
Eighteen people in Wisconsin are suspected of suffering from the monkeypox virus and four are confirmed, said City of Milwaukee health commissioner Dr. Seth Foldy. At least 11 more cases in Indiana and three in Illinois are suspected.
The Centers for Disease Control and Prevention said Saturday the prairie dogs likely were infected with the virus by a giant Gambian rat, which is indigenous to African countries, at a suburban Chicago pet distributor.
Toxic Torts - Agent Organge:
The Supreme Court deadlocked today on whether it's too late for sick Vietnam veterans to sue chemical companies over Agent Orange exposure, but allowed vets to continue lawsuits claiming they were wrongly shut out of a decades-old national settlement.
Business groups had feared a ruling that would threaten to reopen many class-action settlements at a cost of millions or possibly billions of dollars.
Instead, justices were divided 4-4. A ninth justice, Justice John Paul Stevens, did not participate in the case. He did not give a reason for his recusal, but his only son was a Vietnam veteran who apparently suffered from cancer before his death in 1996 at age 47.
The case raised an interesting question of how courts should handle claims from war veterans who got cancer and other diseases after the $180 million Agent Orange settlement was spent.
Dow Chemical Co. v. Stephenson
Insurance: Is the claims file the private property of the insurance carrier?
Charles and Linda Grewell sought access to their insurance claims file, which was maintained by Respondent State Farm Mutual Automobile Insurance Company and State Farm’s Claims Specialist Neressa Wilkins. The claims file originated as a result of an automobile accident involving Mrs. Grewell and James Kephart, also a State Farm insured. A dispute arose concerning the percentage of fault that State Farm felt should be assessed against Mrs. Grewell, and Mrs. Grewell sought access to State Farm’s claim file that was created as a result of the claim Mr. Kephart asserted against Mr. Grewell. State Farm denied Mrs. Grewell access to the claims file, asserting that the claims file represented work product. Mrs. Grewell had also asserted a claim against Mr. Kephart, and she was dissatisfied with the percentage of fault that State Farm was assessing against her from the auto accident. Mr. and Mrs. Grewell brought a declaratory judgment action seeking the contents of the file, and the trial judge dismissed appellant’s cause of action with prejudice. The Supreme Court held that Mrs. Grewell was entitled to access to her claims file inasmuch as Mrs. Grewell’s relationship with State Farm involved an insurer/insured relationship which is similar to an attorney/client relationship. The Supreme Court held that appellant’s insurance claims file held by respondent is analogous to the file of a client held by an attorney. Therefore, Mrs. Grewell was entitled to full access to the file.
Charles Grewell, et al., Appellants v. State Farm Mutual Automobile Insurance Company, Inc., et al., Respondents, No. 84896, (Mo. S.C., April 22, 2003)
Nursing Home Litigation:
Nursing home-acquired pneumonia (NHAP) is defined as pneumonia occurring in a resident of a chronic care facility or nursing home. NHAP is one of the most common infectious disease problems in chronic care facilities. NHAP also is a significant cause of mortality and morbidity among residents of nursing homes or chronic care facilities. NHAP more closely resembles community-acquired pneumonia (CAP) than nosocomial (hospital acquired) pneumonia (NP). Nursing assessment for pneumonia should include a full set of vital signs and measurement of oxygen saturation. Initial communication with the attending physician about a pneumonia case should occur within several hours of the onset of symptoms. If the nurse does not hear back from the attending physician within an hour or so, the medical director should be contacted with the help of the director of nursing. The medical director should be asked to assume care of the patient until the attending physician can be reached.
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