The Lombardi Law Firm Blog

People, Not Corporations Need to be the Courts' Priority

Tort Reform Cake with Health Care Reform Fondant Frosting

Contaminated Melamine Milk Goes Missing, Media Not Asking Why

Made In America Meets The Participation Trophy

Walking the Plank of Consumerism with Made In Undeveloped Country Made Products

Why do Ponzi Schemes that are so obvious seem to fool so many?

Mike Bryant wrote an interesting piece on the underlying facts behind the U.S. Chamber of Commerce ads and how distorted the conclusions are from the facts that underlie those ads. What I believe Mike concludes is that if you examine the facts the conclusions seems to be a mockery of the truth. Mike’s analysis shows just how naïve people are when it comes to believing a firmly stated conclusion presented by someone with money. In essence the Chamber has “Madoff” with the truth. I find this subject fascinating because during the Bush Administration it was like we were in Alice's looking glass. And now hardly anyone who voted for him will admit it.

Guess What: The U S Chamber TV Ad Attack Really Did Need A Closer Look, Mike Bryant, November 3, 2009, 3:27 PM

For me, the truth with the US Chamber of Communism is a fleeting thought. They operate sort of like a communist regime and like most communist regimes the truth isn't something that gets in the way of stating the conclusion we are all to believe; irrespective of the facts. Like any communist culture the end run is always the same, corruption infects those in power for the sake of taking a profit from the citizens that actually did the work or saved their earnings. It just happened and it’s happening repeatedly, and under their watch. But when it comes to corporate corruption and irresponsible citizenship the US Chamber along with the other two evil triplets say nothing.

You’ve got the ATRA and the Chinese arm of the Chamber. Together they brought us Y2K, Enron, Worldcom, Health South, Wall Street bonuses, Madoff, Davis Investments, hedge funds and now CDO’s backed by liar’s loans and then raiding the Treasury through a $700 Billion bailout. Think for a minute about why this seems to be happening at an increasingly faster pace and the fact we’ve heard nothing of any significance from the U.S. Chamber of Commerce, the ATRA or their evil sister in China. Trillions of your hard earned money, savings that were put away for a rainy day, dividends that never get paid to the shareholders and now your tax dollars bailing out the very CEO’s who created the latest mess; and we hear nothing about corruption and corporate irresponsibility from those who claim to be the corporate honor guard in America. How can that be?

Why isn’t the U.S. Chamber of Commerce saying anything about the SEC’s look the other way approach in the Madoff Ponzi Scheme?

We saved our pennies in pension funds and they robbed us of it. Then they told you if you don’t give us bonuses that we didn’t’ earn, we won’t be able to rob you anymore – AND THAT’S UNAMERICAN! Of course with this being America the U.S. branch of the Chamber of Commerce change their approach, not by much but enough to distract most voters from the truth that they were being robbed. And that’s the point of how they are operating; in the end the truth still suffers and never seems to get in the way of the conclusion they want the American public to believe. Truth is exactly the opposite of what the Chamber preaches. Their style is commonly referred to in Communist countries as propaganda.

Below are several video clips: One of the CCP and several others of the US Chamber of Commerce. Is this the America they stand for? As for the CCP versus US Chamber of Communism, each would have its people believe free thought and speech is anti-Country. Each believes they have the only good ideas. Each organization believes in a lack of tolerance and hording the profit earned by public corporations.. Each is rigid in thought, rejects the acceptance of new ideas and each believes in itself and not the people that did the actual work. They claim those who ask for a piece of the pie aren’t sacrificing for the good of the country, while those in charge reap billions in unearned bonuses and stock options. In each instance they steal what they can’t get legitimately. Welcome to Wall Street and Madoff’s world of thugs roaming the hallways of Wall Street glad-handing with the U.S. Chamber of Commerce and the ATRA. Mind you I’m a Republican saying this. Those on Wall Street stole from me just like they did you Democrats.

Remember Senator Ted Stevens and the charges in Alaska?

Here is the challenge the U.S. Chamber of Commerce faces and ignores. The U.S. Chamber believes Wall Street’s CEO’s in charge of mismanaged public corporations actually earned billions of dollars in bonuses and yet they strongly oppose (d) quality of life damages for those injured through no fault of their own. The Chamber preaches that common citizens should receive no compensation when the mistakes of others cause their arms and legs to have to be amputated and then hand out Participation Trophy bonuses to the Wall Street gang. It’s an unconscionable position they take: One that sanctions Wall Street corruption and denies quality of life and an earned retirement to working Americans. We’ve seen and heard this before. Their rhetoric is a throw back to the Stalinist Era with the Communist Manifesto that believed no one was entitled to pain and suffering damages or a decent retirement since all workers owed their pain and suffering to the state. (or the Red Army)

Who are the real Americans? Where are the real Americans? Why are they putting up with this?

You do realize the U.S. Chamber of Commerce is in China? They are no longer the U.S. Chamber, but instead appear to me to be the U.S. Chamber of Communism, exporting our jobs overseas, spending tens of millions of dollars on ads meant to disenfranchise American taxpayers from American workers and thereby allowing more American jobs to be exported, while real Americans stand around arguing. This Chamber is not on our side. They are in every sense a false “profit”. And I have to wonder if the Chinese Communist Party isn’t providing financial support for their work. It would make complete sense that they would; because the more jobs America loses, the more China gains and the wider the U.S. trade deficit. If you were Chinese why wouldn’t you want a greater trade deficit and all the American manufacturing jobs? What is occurring is the largest transfer of wealth in the history of the world. And don’t wait for the Congress to come to your aid because through campaign contributions our Congressmen and women work for corporate America, not the voters.

http://www.uschamber.com/international/asia/china/default

Who really is the U.S. Chamber of Commerce?

These guys ought to do a little traveling and I’m not referring from the board room to the water cooler.

The Bonus Boys at AIG – Good US Chamber Members

The U.S. Chamber of Commerce should disclose all of its contributors, even those from Communist China.

I apologize for the length of this post, but this subject bothers me and it should you. Our jobs, the American middle class and the welfare of our country is at stake. We took this country back during the 1960's and 70's and we can do it again. Join me by protesting the U.S. Chamber of Commerce and its evil twins, The USCCC and the ATRA. They are ruining America, but together if we reject their ideas, we can take back our country. To do so we need to get back to the basics of honesty.

Exporting America’s Middle Class Out of Iowa

Can a community that has no manufacturing base sustain a middle class?

Electrolux is closing its Iowa operations and with those closings taking 850 jobs to a place called Juarez, Mexico. On the news tonight they showed workers upset over the introduction of a security company checking lunch pails for probably weapons. That’s a good thing really. Because if I worked there for 20 years and just had the rug pulled out from under me I might consider going to work with a loaded revolver. So the rest of you workers calm down about the security and focus on the real problem, Congressmen and Congresswomen taking campaign contributions from companies that afterwards ship jobs overseas or out of this country. What the workers need to do is demand an answer, the real answer, as to why these jobs are being shipped out of this country. It seems our Congress is either powerless, mindless or bought and paid for when it comes to shipping jobs outside of this country.

“Politics is a pendulum whose swings between anarchy and tyranny are fueled by perpetually rejuvenated illusions.” Albert Einstein

The Schedule: Electrolux in Jefferson, Iowa is moving 850 jobs to Mexico by 2011. The Electrolux Major Appliances North America operations are consolidating its North American laundry manufacturing into one facility in Juarez, Mexico. The Webster City operation will close in the first quarter of 2011 and the Jefferson, Iowa satellite facility in the fourth quarter of 2010.

Here is a quote from the MSNBC story Electrolux To Move 850 Jobs to Mexico:

“This was a difficult but necessary decision,” said Frank Wagner, Vice President, Operations, Electrolux Major Appliances North America. “Electrolux is aware of the impact this decision will have on our employees and their communities. The company will be taking steps to assist employees with this difficult transition and will work with local and state officials to ensure that all training resources are made available to our employees.”

That’s an understatement and no Frank I don’t think it was a difficult and necessary decision. Electrolux just announced its 3rd quarter profit showed a 93% rise even though in general there is weak demand for appliances. Electrolux 3Q profit rises 93 percent, October 26, 2009 The most difficult part of this decision is how all of you get out of town with your skin intact. You just took 450 jobs in Spain last week and sent them where? And that’s the reason for the security at the plant. Your brain tells you this isn’t the right thing to do but for whatever financial reason 850 Iowans get shafted and lose their jobs. They give you years of their sweat, blood and tears and what are you giving them in return. Nada.

I see Kelly Ripma is your spokesperson. How about if we not just boycott what you make but also what she sells. As she says in the ad for winning a double wall oven, that sounds like the way to “plan the perfect party.” Like I said, no wonder you have beefed up the plant security.

Do you think we don’t know this game? Did you forget that Newton, Iowa most recently lost over 2,000 jobs when Maytag closed in Newton? (Whirlpool Corp.) Electrolux cities told to market plant sites, Des Moines Register, October 25, 2009. The company says it’s doing very well financially so why the move? What gives Mr. Wagner? Maybe you’re not the guy to ask. Perhaps it’s the CEO Hans Straberg sitting comfortably in some corporate office planning his next bonus.

Electrolux is a world leading international appliance company. We are a part in the daily life of hundreds of millions of families around the world.

"Each year, some 40 million consumers in more than 150 countries choose our products, such as cookers and cooktops, ovens, fridges and freezers, dishwashers, washing machines, tumble dryers, room air conditioners and vacuum cleaners. That translates to two products bought from us every second, every day of the year." Electrolux Corporate Website quote.

From your most recent press release this is all about margins and martini's with you CEOs. That and your next bonus check. How much are the board’s big fat bonuses for 2009 going to be? It’s not longer about the people in the community, the workers that build the products or their families. It’s all about you.

And corporate America wonders why this next generation shows no loyalty or work ethic?

Third quarter results clearly demonstrate our potential

26 Oct, 2009 07:51

Today I am presenting very strong results for the third quarter. We have succeeded in reaching an operating margin of more than 8%. I am very pleased that all Electrolux operations have been successful in this challenging market. Market demand continues to be weak, although the rate of decline has slowed down.

The results show that we are capable of increasing our margins. At the same time, we have to be realistic and understand that a lot of work remains before these levels are sustainable.

Almost everything went our way this quarter. Cyclical trough in commodity prices and maintained prices have been decisive for our earnings improvement. Other contributing factors are a better product mix and significant cost reductions.

Electrolux Financial Statement

If you leave off the return on equity for 2008, 2008 was a bad year for everyone; Electrolux’s ROE is over 20% on average for the period 2004 through 2007. Greed is the only thing we Iowans can see driving this decision; plain and simple it’s about greed of a few that leaves the middle class behind.

I’ve seen it since 1981 from a front row seat in Waterloo and the John Deere employees, the American middle class is being dismantled. It’s being shipped overseas and down south. If a country doesn’t have manufacturing jobs they soon don’t have a middle class and class warfare can’t be far behind. If you and the other plant closing CEO’s are wondering why there are so many people running around this country wanting to wage war over the right to carry firearms, just stop and consider the bigger picture from the viewpoint of a family of five just trying to put food on the table. All they can think of is where Sam Colt is when you need him?

U.S. Chamber of Communist Commerce and the Un-American Tort Reform Association Sit on the Sidelines Saying Nothing - Perhaps they speak only in Spanish and Chinese

My advice to Iowans is to buy American-made goods. Don't buy cars, appliances or any other products that aren't made in America by the American worker. Why don’t we have our own website for American made goods?

And once again I ask, why is the American Tort Reform Association and the U.S. Chamber of Commerce so quiet? Why don't they have anything to say about the loss of American jobs? Isn't it the United States Chamber of Commerce? Or is this really a communist-like organization interested only in the wealth of a few who own and run companies out of America? Your two organizations are truly the great illusionists. The comment section is below...

Tort Reformers say: "No porridge for you!"

Our lesson for today concerns news print reporting of medical malpractice reform measures. The lesson is that reporters should avoid heavy medication before editorializing about something they know nothing about.

To me it’s so typical. Another editorial pandering to the few advertisers newspapers have left, saying what the advertisers want to hear; regardless of the affect on society. In this case it says let’s all save money by making the injured patients pay for medical mistakes instead of those responsible for creating the injury or killing the patient. Today’s editorial is in the Coventry News and is written by Patrick Durusau. All I can say is shame on you Patrick. If anyone wishes to read the entire fairy tale that masquerades as an editorial follow the link. Here is part of what he writes.

"The current adversarial system between physicians and their patients benefits only three groups: medical malpractice insurers, medical malpractice defense and plaintiff lawyers. Abolishing medical malpractice is an important step in repairing the physician patient relationship. Getting physicians and patients on the same side will result in better medical care and, coincidentally, the demise of medical malpractice insurers and their familiars. That doesn’t bother me. How about you?" Patrick Durusau

I think he forgot the main beneficiaries of the medical litigation process: The injured patient, the surviving dependents or those patients not injured because of fear of being sued when you do something wrong that hurts the patient.

Don’t they count? Or are they the riffraff of Mr. Potter's world?

Either this reporter has a naïve view of life or he's pandering to his news organization’s paying advertise-customers. Perhaps he's just naive from never having interviewed a grieving widow raising hungry children alone after watching her husband die as a result of a failure to diagnose cancer or some other fatal disease? Get real Patrick; I suggest you visit the morgue and then interview the widows and widowers in major cities where health care can be downright factory like and prone to mistakes.

I rarely practice in this area so hold your tongue about me being just another lawyer trying to make a buck. I do consider myself a “plaintiff’s lawyer” because my practice is one where I represent people, not big insurance. I’m pretty typical for most small city or rural based lawyers. We don’t seek out medical malpractice cases; in fact we try to avoid them. They are way to expensive to litigate and wrought with landmines to make mistakes.  Like many I have friends, colleagues and relatives who are practicing physicians. In Iowa we have just a handful of lawyers who practice full time in this area as specialists. We don’t have a problem, like I’m sure New York, California and Florida does. We have just a few cities, we have good doctors and yes a few that have made professional mistakes.  Frankly we don’t need injured patients paying for someone else’s mistakes. We like our system of tort law; it’s served us well. We still have moral fiber that tells us those who make mistakes pay for their mistake.

I grew up in Rhode Island and know only too well the consequences of medical malpractice and a dead bread winner. My father died when I was 12, he left behind a 37 year-old wife and five children all under the age of 13. We never sued, even though the doctor diagnosed a pulled muscle instead of the lung cancer. I’m sure the doctor didn’t want to take an x-ray since it was as tort reformers say, “unnecessary and expensive.” That’s the defensive medicine I grew up with; it’s the same one that Mr. Durusau is advocating for the rest of us. That’s the kind of defensive medicine that you’ll say isn’t needed, is thought to be too expensive and a waste of time and money. That’s the kind of loyal patient and doctor friendly medicine that I grew up with. It’s the same kind of medicine that buried my father, put no food on our table, took away the one man who was going to send us to college and wasn’t there for my sister’s wedding, birthdays, deliveries, anniversaries or grocery shopping day. Oh it’s friendly alright. It’s friendly to big insurance company executives, but does nothing for the widows and orphans it leaves behind.

My mother kept a single can of shrimp in the pantry to let us know we weren’t poor. I guess it also meant we wouldn’t starve. At least I hoped that’s what it meant. We ate Mrs. Paul’s fish sticks and frozen French fries every Friday that we didn’t have corn chowder. God I hated both. The fish sticks tasted like burnt cardboard and were always overcooked while the fries were mushy and undercooked. Dr. Sandstone never did see what he’d created for this family of six trying to get by on Mom’s sewing money and a monthly Social Security check. Not exactly the kind of life my father had hoped for his wife and children. I often wonder what the outcome would have been like had he ordered that expensive and unnecessary $5 x-ray.

This editorializing reporter must have had a good life without any medical mistakes interrupting his education and family vacations. I say that because he’s got a naïve and foolish point of view that draws conclusions that border on being downright cruel. Before you join his world I invite you to look at his methodology for improving health care and delivering better medicine.

If we follow that logic all car collisions caused by distracted drivers would result in the digitally drunk and distracted teen driver getting a smile from the other drivers; well… at least those who aren’t dead or brain injured and the teens will somehow miraculously learn how to drive safer. How does not making those who make professional mistakes take responsibility make the system more responsible? I’m left wondering just how old our reporter is and what time of day he wrote this little ditty. Maybe he needs to stop drinking the Guinness so early in the day.

“If we abolish medical malpractice as we know it, physicians (not the government) would have to develop better ways to discover why "mistakes" happen and ways to prevent them from happening again. That is to change from a blame assignment/avoidance system to one that tries to improve the quality of care delivered to everyone. Wouldn’t that be a more useful part of a health care system?”

“The current adversarial system between physicians and their patients benefits only three groups: medical malpractice insurers, medical malpractice defense and plaintiff lawyers. Abolishing medical malpractice is an important step in repairing the physician patient relationship. Getting physicians and patients on the same side will result in better medical care and, coincidentally, the demise of medical malpractice insurers and their familiars. That doesn’t bother me. How about you?” Patrick Durusau, Coventry News

LET’S TAKE A TRIP to POTTER'S FIELD or DICKENS’ WORLD

Mr. Durusa there’s a little cemetery in a small quaint New England town with a brownish headstone bearing the name Lombardi. The stone has a polished face, a rough finish on thick edges with pink, white and red flowers that surround it. On the back side this gravestone has the name Charles A. Lombardi inscribed on it. Visit St. Mary’s Cemetery where Charlie lies and you’ll notice the surrounding grass is strong and healthy. That grass grows tall from the tears that have watered it for the past 41 years. Like Charlie, the doctor too is dead but I can say that during his lifetime I never saw him visit that grave to support the widow who stood strong for her five hungry children. The widow and her five children today live far from where Charlie lays waiting. I guess you can say we lived your friendlier medicine because we didn’t sue. That was 40+ years ago and I’m still waiting for the doctors to deliver better medicine. Are you sure of your theory? Because today as a 54 year-old-man whose had a front row seat to the “better medicine" you’ve described I’m not seeing the benefits... or a bigger can of shrimp.

The Durusau World of Friendly Medicine and Medical Tort Reform

Tweet this message to your Congressman

As equally inept as any of the CEOs of the major Wall Street firms that he gave $700 Billion of our money to, we continue to pay him $400,000.00. $400,000. is the amount President Bush is being paid each year during his lifetime. After screwing-up this country beyond description or comprehension he continues to get paid. He robbed the U.S. Treasury and still we, as a country, are too stupid to claw-back what is rightfully ours.

Like the CEO’s on Wall Street George Bush was a complete and utter failure. He and his Administration destroyed the hopes and dreams of an entire generation and probably several to come. We need justice. We need to claw-back those assets which are ours and necessary to prop up the Treasury. The U.S. Congress needs to eliminate the unnecessary expense of paying any U.S. President that no longer holds office. Especially the money being paid to George W. Bush. We need to make his retirement as uncomfortable as the other retirees. As the President he was in charge and failed to carry out his job in any way that can be measured as a success.

I don’t know about you but I want my share back. I never voted for him. I always saw him for what he is; an ignorant man who could surround himself with evil and who cloaked himself in a fragile puffed up ego. And that from a Republican. Imagine that? I want my money back an so should you. Tell Congress to eliminate his pay.

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U.S. Inflation to Approach Zimbabwe Level, Faber Says

SAMPLE LETTER

U.S. Congress

Dear Mr. or Mrs. Congressman:

I live in your district and voted for you in this last election. I realize that wasn’t the smartest thing to do but I’m learning. When you’re not too busy screwing-up this country I wonder if you could do something that actually preserved it for the next generation. As you know the U.S. Treasury is near bankrupt and the U.S. dollar has so little value that even Zimbabwe’s currency is looking pretty valuable. If you don’t remember it was George W. Bush who presided over this last Administration that caused the Republic to be robbed and squandered.

With all the talk about claw-back provision in Wall Street CEO bonuses that will be paid, it got me thinking about the $400,000.00 we are paying to GeeDubya each and every year. Let’s claw it back.

I would like you to introduce a bill to eliminate George W. Bush’s U.S. President retirement pay so he too can feel the pain of being a real American.

Very truly yours,

YOUR SIGNATURE HERE

The Fool That Voted for you and him

Cc:

And if you’re wondering about why the rest of the World is leaving us, just watch what they saw over the past eight years.

WITH TORT DAMAGES REFORMED WHO WINS AND WHO LOSES?

Today is the end of May 2009 and I thought it appropriate to end Tort Reform month by focusing on the winners and losers when society artificially limits tort damages with caps. It’s been fun this month writing about a topic that strikes so many as emotional. I’ve tried to analyze medical tort reforms from an economic view. I’ve probably succeeded in some respects and in other respects failed miserably. But like always our theme at Lombardi Law Firm has been to tell you what you need to know not necessarily what you want to hear. If you’ve enjoyed it or even if you’ve disagreed with my conclusions, let us know. Drop us a line or a telephone call; I take them from all over the country. I hope the patients and the doctors are better prepared for the road ahead. I wish you both the best of luck. Now, back to the winners and the losers of medical tort reform.

WINNER - Doctors who make the biggest medical mistakes – They get the most from capping the patients’ ability to recover compensatory damages, either economic or non-economic, after a medical mistake. They pay lower malpractice premiums (even though they make the worst mistakes) and by doing so get to take home more income. Their lifestyles will not be affected, but if they are affected, it will be towards improvement economically and socially. The general public will not be made aware of the medical mistakes these doctors cause, because their will be fewer lawsuits that make those mistakes public. Also bolstered by their success at hiding mistakes information will become more difficult to find. They control what goes into paper medical records that have no time or date stamp; a trail for detecting changes; and these doctors will get away with more and more medical mistakes. Patients who suffer the consequences will not have their day in court thus allowing the medical community to continue to sweep evidence of mistakes under the rug.

WINNER - Medical Malpractice Insurance Companies – Insurance companies have a win-win situation because they still get to collect premiums from those doctors making the worst mistakes and with each of those loss events, the losses will be kept artificially low. These insurers get their cake and eat it too. They are clear winners.

WINNER - Politicians – The politicians win because with capping damages they’ve created a steady stream of corporations and individuals willing to annually contribute to their campaigns. Those for and those against laws that artificially cap medical damage mistakes, will contribute to their next campaign effort on an annual basis. Patients, who for the most part haven’t yet understood what this law means economically to them, will not demand political accountability. At least at this point the politicians are clear winners.

LOSER - Health Insurance – With artificial damage caps these companies lose out all the way around. Patients injured by a medical mistake will file all medical expenses with their health insurance. Due to artificial caps on recovery lawyers will take fewer and fewer cases that would have resulted in subrogation recovery from liability insurance carriers. If there is no medical malpractice claim brought or with limited recovery available it is not likely health insurers will be able to recover any medical expense paid for that care made necessary by medical errors. After the initial care the health insurers will continue to lose out by increased payouts on future medical care. With medical malpractice claims being as imperfect as they are, patients even with an award will run out of money and health insurers will to some extent be forced to pick up the tab for medical claims.  

TEMPORARY WINNER/LOSER - Hospital Systems – They win and they lose. They win with paying lower malpractice premiums, for the doctors they employ, but then hand it right back with picking up the bill through lower reimbursement rates from Medicare and Medicaid government programs. Patients that run out of money will soon file for coverage under these governmental programs. Those that continue to have health insurance will increase the burden on health insurance carriers that will in turn negotiate lower and lower reimbursement rates with hospital systems.

BIG LOSER - The United States Government – A clear loser under capped damage laws.  While mistake ridden doctors will continue to practice paying high income taxes; the citizen patients who are injured will end up on Medicare and Medicaid programs along with the Social Security Disability program thereby increasing the payouts and pinching an already shrinking federal budget that is being consumed by entitlement programs.

BIGGER LOSER - States, counties, cities and towns that provide medical care for the poor and uninsured – Clear losers under capped damage laws. When patients run out of cash from lower awards or they are without awards because lawyers refuse to take their cases, state and county hospitals will treat more and more no-pay patients. Many will end up institutionalized in government institutions. This will increase the demands for paying more medical expenses of the needy on an already straining budget.  

ANOTHER BIG LOSER - The Taxpayers – Taxpayers clearly lose. They get to pay higher and higher taxes for the cost of the biggest and worst medical mistakes. The cost of medical mistakes is not being eliminated; that cost is simply being shifted from those that made the mistakes to the tax payers. As demands increase on government entities to provide for the poor patients who never recovered or had reduced recovery through litigation, the economic burden will increase. Taxes to pay for these programs will have to increase. As patients the taxpayer gets a double bill. See immediately below.

BIGGEST LOSER - The Patients – Are the biggest losers under capped damage laws. As a patient they have little information to make an informed decision about which doctors and hospital systems put them at the greatest risk of a medical mistake. Without economic pressure being put on those doctors and hospitals that make the biggest mistakes systematic changes will not take place thereby increasing the number and severity of medical mistakes. In other words you’ll get more severe medical mistakes with greater and greater risks to patients who can ill afford the costs being shifted to them.

Can the patients look to the legal system for help? No. Patients lose again with the legal system that will not be able to take on the patients’ medical mistake cases due to risk-benefit economic analysis. In other words the limited recovery will not make the case economically feasible to pursue. Lawyers who have developed expertise in this area will practice another area of the law, making those lawyers willing to take such cases harder and harder to find.  This will force higher contingent fee percentages; a simple supply and demand economic issue.  When you do find a lawyer you may still not find satisfaction. Lawyers and law firms will not advance thousands of dollars in litigation expenses when the recovery is artificially pre-capped. Those cases that are taken will see a higher contingent fee percentage to compensate for high litigation costs and the risk of taking on tough liability cases with lower damage (recovery) rewards and to offset those cases that produced little or no recovery.  This problem will not be readily apparent, but as the legal market adjusts the problem will become clear after you, the patient suffer the consequences of a medical mistake. The problem is the patient (and taxpayer) will be the last to know and will have the hardest time changing the system to force doctors to pay for their own mistakes.

When faced with hospitalization or the need for immediate medical attention, including surgery, the patient gets little information. What it there is difficult to search and when a major medical mistake occurs they have little chance of recovering compensatory damages sufficient to pay those that line up at the recovery end. After a limited recovery, those asking for payment or reimbursement will include the insurance companies enforcing subrogation clauses, medical service providers with unpaid or uncovered medical expenses, the litigation expenses and the lawyer with his contingent fee. Whatever money is left over after the recovery pays the aforementioned will soon go to future medical expenses and living expenses. The awards will be inadequate for any long term planning; a fact quickly realized by the patients and their families. These patients will have few choices but to go on government medical and disability programs. For the most part they will be forced to divorce and the children to work instead of attending colleges and universities. For most of them life will be a spiraling downward economic cycle towards the poverty line. They will find insurance companies of all kinds (life, medical, disability, etc.) unwilling to insure them leaving them no choice for what the government offers them. Employers viewing them as a medical expense that can’t be controlled will find excuses not to hire them. At that point they will begin to fully appreciate the nature of how artificially capping damages has affected them.

THE SYSTEM REMAINS BROKEN, CAPS DO NOTHING TO FIX IT – GAMBLING THROUGH BLIND FAITH

The current medical system buries medical mistakes and the risks for contracting infections through laws that protect information secrecy. While doctors are disciplined for serious malfeasance, once the medical community determines the need for action they do not make that information ready available for patients to search and review. For instance Texas, like Iowa allows you to research one doctor at a time and then only to see information that has been made public. The patients are forced to search in all 50 state medical board web sites before knowing if the doctor they’ve chosen or intend to choose has a record of making mistakes. Patients have little time to do this kind of research and are forced to consent on blind faith. It’s impossible to go to one web site and search by a doctor’s name. With hospital systems it’s even more difficult to find any information about infection rates and employee mistakes. As an example, try to find out how many wrong-site surgeries have occurred in any one institution, hospital system or any one physician. Good luck, because you can’t.

Greed, greed and more greed. I hate to say I told you so.

On August 19, 2007 I wrote this piece on the InjuryBoard. It was good then and after the Wall Street Mortgage Mess Meltdown it's even better. When President Bush was leaving office he was attempting to redefine what his Administration stood for. He wants history to see him as having had the public's safety in mind. I will never remember him or his Administrations for anything close to having the public safety in mind. No, not safety. Greed yes, but not safety. Here is what I wrote.

Goldman Sachs Redefines Greed - Trial Judges and Juries Need to Take Note

The Bush Administration has repeatedly accused trial lawyers of being greedy, but Mark McGoldrick and Goldman Sachs have redefined greed. While trial lawyers' toil to prove damages in a court of law, persuade a Judge there is support in the law and then persuade citizens of the case's merits to win a verdict it seems disingenuous that they would ever be called greedy. Greed is defined as excessive or reprehensible acquisitiveness.

The Wall Street Journal reported on Mark McGoldrick and Goldman this past Saturday in a story titled "Why $70 Million Wasn't Enough."

Mark McGoldrick earned about $70 million in pay last year -- nearly $200,000 a day -- placing bets using Goldman Sachs Group Inc.'s money. He was one of Goldman's highest-paid employees.

So where is Dubbya on this one?

Mr. McGoldrick and some of the partners in his unit griped that they weren't being rewarded as well as counterparts at hedge funds and private-equity firms. Though highly paid, his team was "under-compensated," Mr. McGoldrick complained to Goldman colleagues. He groused about being shut out of investments because of potential conflicts inside Goldman. Then he quit.

As 2006 drew to a close, Mr. McGoldrick argued that his group should receive a substantial boost in compensation. By his calculations, the special-situations unit should get $400 million -- representing 2% of its assets -- and $800 million -- or 20% of the unit's profits -- for a total of $1.2 billion.

 

Then the bonuses were distributed in early January. Goldman didn't come close to Mr. McGoldrick's figure of $1.2 billion in bonuses for his group. Instead, Goldman's senior management awarded the group about $500 million, says a person familiar with the situation. A Goldman spokesman wouldn't comment on employee compensation.
Mr. McGoldrick and several of his top deputies were outraged. Because he led such a profitable unit, Mr. McGoldrick was one of the highest-paid executives at the firm, with about $70 million. Mr. Blankfein, Goldman's CEO, received a pay package totaling more than $53 million.

If attorneys are truly greedy they sure have a funny way of showing it. The salary for an attorney in the U.S. varies greatly, but the average is about $60,000-$150,000. I wonder how lawyers compare with those running Wall Street? The same CEO's who allowed backdating and the accounting fraud that took millions from shareholders and put it in the pockets of their cronies.

Speaking of greed, why hasn't the Bush Administration filled the Commissioner slot on the Consumer Products Safety Commission? How many children will be poisoned by lead based paint on toys before he acts? Where is Laura Bush on what she thinks of her husband's stalling on filling the CPSC post while children are being poisoned for profit? Are these the family values for which this administration stands? Where is the free press on this issue?

As the President and Karl Rove exit the White House without acting on the CPSC post will the country ask them about "cutting and running"? Have we seen the United States Treasury raided enough yet? As a Republican I too, like the Dixie Chicks am ashamed of this President and his administration's record. The Dixie Chicks were right and Natalie Maines should never apologize for saying what she thought. Bravo to Emily Robison and Martie Maguire for sticking by her side even though it cost them millions of dollars.

Wasn't this Administration tied to Schlumberger? With the continuing increase in energy prices, the demand for products from companies such as Schlumberger Ltd. has also increased. Schlumberger is the world's largest oil services company and has recently reported that its second-quarter profit rose 47%. This is the same company supplying the war effort backed by the Bush Administration.

Net profit for the Houston-based company rose to $1.26 billion, or $1.02 cents per diluted share, from $857 million, or 69 cents, a year earlier.

And how are the CEO's on Greedy Street doing financially?

Richard D. Fairbank - Chairman, president and CEO, Capital One: $37.4 million
Timothy M. Donahue - Former chairman, Sprint Nextel: $36.2 million
Gary D. Forsee - Chairman, president and CEO, Sprint Nextel: $21.3 million
H. Lawrence Culp Jr. - President and CEO, Danaher: $19.6 million
Robert J. Stevens - Chairman, president and CEO, Lockheed Martin: $18.6 million
Len J. Lauer - Former chief operating officer, Sprint Nextel: $16.7 million
Thomas J. Fitzpatrick - Former CEO, Sallie Mae: $16.6 million
Richard F. Syron - Chairman and CEO, Freddie mac: $14.7 million
Nicholas D. Chabraja - Chairman and CEO, General Dynamics: $14.5 million
Christopher J. Nassetta - CEO, Host Hotels & Resorts: $13.1 million
Dale B. Wolf - CEO, Coventry Health Care: $12.9 million
J.W. Marriott Jr. - Chairman and CEO, Marriott International: $12.6 million
J. Herbert Boydstun - Executive vice president, banking, Capital One: $11.7 million
John G. Finneran Jr. - general counsel and corporate secretary, Capital One: $9.5 million
Thomas P. McDonough - president, Coventry Health Care: $9.4 million
David R. Lawson - president, auto finance, Capital One: $8.4 million
Dave Schaeffer - CEO, Cogent Communications: $8.3 million
Douglas H. McCorkindale - Retired chairman, Gannett: $8.3 million
Dwight C. Schar - Chairman, NVR: $8.3 million
Craig A. Dubow - Chairman, president and CEO, Gannett: $8.2 million

It may seem like nothing now, but just wait until the baby boomer retirees start taking out their retirement savings. Then we will realize what those millions meant and it will make a real difference to us as opposed to just an accounting difference.

Top Paid Executives (Most Cash):
Robert J. Stevens - Chairman, president and CEO, Lockheed Martin: $8,765,154
William L. Walton - Chairman and CEO, Allied Capital: $7,200,000
Timothy M. Donahue - Former chairman, Sprint Nextel: $6,030,000
John D. Shulman - Managing director, Allied Capital: $5,561,250
Paul Hanrahan - President and CEO, AES: $4,947,467
H. Lawrence Culp Jr. - President and CEO, Danaher: $4,625,000
Nicholas D. Chabraja - Chairman and CEO, General Dynamics: $4,500,000
Daniel H. Mudd - President and CEO, Fannie Mae: $4,450,000
Thomas P. McDonough - President, Coventry Health Care: $4,382,047
Joan M. Sweeney - Chief operating officer, Allied Capital: $4,000,000

And how do attorneys' compare with the profit margins of major insurers?

2005 2006

Profit
$1,701.7 Aetna
$2,977 State Farm
$1,626 Liberty Mutual Group
$3,428 Prudential
$1,647 Progressive
$713.8 Nationwide

*in millions

If lawyers are truly greedy then it can be only for justice. If we are truly greedy then it is a greed for the truth to know what went wrong and why so it is less likely to happen again. Greed for lawyers is about asking for compensation to pay for medical expense for widows and children. Am I greedy in that sense? Yes I am. Call me greedy for justice, but call me.

Nine more melamine trials in China

Can you imagine a civil justice system where a milk producer would be allowed to manufacture infant baby formula so poisonous that your infant would develop kidney stones or go into kidney failure and the Courts would dismiss your case; or the government that is supposed to protect your child, orders the responsible companies to pay you a measly $290.00 USD (2,000 Yuan) or if your child was really sick with kidney failure $4,350.00 USD (30,000 Yuan).

This is pathetic. Chinese lawyers sued 63 defendants seeking 14 million Yuan in compensation ($2,030,000.00 USD) and the Chinese Courts dismissed the case. The Associated Press reports the following:

“Lawyers seeking to bring a lawsuit against the companies involved say they understand that most children who suffered kidney stones from the tainted milk would get 2,000 yuan ($290), while sicker children would be paid 30,000 yuan.

Chinese courts have rejected all claims filed by the victims' families, including a lawsuit initiated this month by lawyers representing 63 defendants that sought nearly 14 million yuan in compensation from Sanlu.”

This is exactly the system tort reformers want you to buy into. Whether it’s the American Tort Reform Association, What is Tort Reform, Anyway or the American Chamber of Commerce if left unchecked they would do exactly what the Bush Administration did to the banking regulatory system in this country.  

LEON IOWA – Parking Ban sets the wrong example because it’s not an honest one.

Leon, Iowa -  The Des Moines Register in the November 20, 2008 news gives a thistle to the town of Leon for responding to a court decision finding (Original Sin) a city ordinance that banned traffic on a street for all but those attending church service, unconstitutional, and (The Reformation) responding with an ordinance that banned all parking on the street.  (Those wanting to park during church services are now detoured to Purgatory.)

Banning everyone from parking is an approach citizens would not expect their elected officials to take, since like the Register points out, it inconveniences everyone. The people of Leon have the right to elect whomever they choose and those elected officials can pass ordinances that are legal and constitutional, no matter how mean spirited. That is their right. But it isn’t the sort of measured response to be expected by democratic governments in America. We aren’t the Wild West; we are supposed to be civilized and educated people with elected officials who craft laws that find a happy medium and solve problems. This response simply worsened the existing problem.

In 1975 I came to Iowa from Rhode Island. It was a new experience for a kid that had never been outside of New England. Everyone said I would soon be returning home because no one was sure that homes in Iowa even had plumbing. The encyclopedia displayed a picture of a young man holding a pig at the Iowa State Fair. His butch waxed crew cut was even across the top; a big smile on his face as he leaned into the camera. I took a long train ride from Providence to Chicago. On the bus ride to Iowa City from Chicago I asked the farmer sitting next to me what all that was in the fields. He smiled and said, “Corn and beans.” I was awed at the miles and miles of corn and couldn’t imagine who would eat so much corn. A few years later my father-in-law, Francis Snook, a hog, corn and soybean farmer in Jasper County got the biggest laugh of his lifetime as this brainy Drake Law student standing in the hog house in the dead of February asked how come the ground didn’t freeze. His answer was “Because we’ve mixed corn and water.” I stood there looking down at my “muddy” rubber boots while he continued to clear out the pens just chuckling to himself and from the corner of his eye waiting for me to “get it”. When the smile finally creased my face his laughter sent the hogs scrambling in every direction. We both laughed so hard the smell of ammonia forced us outside to the frigid Iowa winter air. I always loved the beauty of the Iowa land and its people.  I stayed in Iowa because it was a friendly place where people were honest and you could still earn a decent living while raising decently honest children.

This response by the Leon Town Councils isn’t an honest one. It’s cute but it’s not intellectually honest.

As a lawyer in Iowa for over 30 years I have a recommendation that should clear up the problem, will not offend the First Amendment and respect the separation of church and state. Simply amend the ordinance to allow only those who have not sinned to park on the street during church service times. The street should be plenty empty.

After all wasn’t it Jesus who said: “I came not to call the righteous, but sinners.” The elected officials of Leon shall sin no more.

Pushing drugs with direct to comsumer - Like DDT, DTC by Rx is the next Big Tobacco

WHAT’S THE PROBLEM

Did you know that in most foreign countries drug companies are not allowed to advertise directly to patient consumers?

Melody Petersen is an Iowa author who has written, OUR DAILY MEDS: HOW THE PHARMACEUTICAL COMPANIES TRANSFORMED THEMSELVES INTO SLICK MARKETING MACHINES AND HOOKED THE NATION ON PRESCRIPTION DRUGS.  The book explores the area of pharmaceutical companies as marketing machine using DTC to increase the bottom line.

The book is getting good reviews from the likes of the Bill Moyers Journal, The New York Times, Public Citizen and The Survive and Thrive Boomer Guide. You can purchase the book at Amazon or at Barnes and Noble.

Watch the Moyers Journal video interview of Melody or the podcast.

The problem, according to Petersen, is not that medicine is bad, it's that the drug industry has lost its way.                               - Bill Moyers Journal

WHAT’S THE PROBLEM WITH DIRECT MARKETING TO PATIENT CONSUMERS

The motive for profits to pump up executive pay is a greater goal than practicing good medicine and making good Rx decisions based on the practice of medicine.  Like DDT, DCT is passed on from generation to generation. You think I'm exaggerating? Keep reading.

IS DIRECT MARKETING PROFITABLE?

You be the judge. Senator Byron Dorgan has several charts on his website comparing the cost of several drugs and what patients pay in the U.S. versus Canada. The markup to U.S. consumers is between 31% and 128%.  

Tale of the cash register tape:

Zyprexa to treat depression $556.54 for U.S. patients but only $244.56 in Canada.

Prevacid, ulcers, $419.96 versus $213.36.

Lipitor, cholesterol, $321.30 versus $164.34.

See the chart for other drugs.  

Has DTC been used before in an unhealthy way?

This somehow reminds me of something from our past.  What could it be? So when it comes to drugs is Big Pharma the voice of reason? As Ricky Ricardo would say, “Lucy, you got some splaining to do!”

What might an Rx-Man look and sound like?

Could there be a Kool-menthol-Lipitor commercial?

If paid enough might your doctor, the “man of medicine” in your life be involved with DTC?

Certainly DTC wouldn't be used to sell drugs to our kids, would they? 

Can we trust the research, when DTC is the driving force?

They’d never use sitcoms to push drugs using DTC, would they? Family shows like Dick Van Dyke and Mary Tyler Moore or the Beverly Hillbillies  and Granny would never be used for DTC, would they?

MEET THE AUTHOR

Ms. Petersen will discuss her book (and sign if you wish) at the Fall Winter Festival, 6:30 PM, Monday, Central Library, 1000 Grand Avenue, Des Moines, Iowa.

Melody Petersen - Melody Petersen wrote about the pharmaceutical industry for four years as a reporter for THE NEW YORK TIMES. She won a Gerald Loeb Award in 1997, one of the highest awards for business journalism.

American Politics - Melting down the Bush legacy.

Betting on tort reform speaks volumes about the mentality that dead workers are just part of a growing economy.  It's the same mentality of an Administration that is oblivious to Wall Street greed.

The pace of construction on the Las Vegas strip is some of this country’s most hectic. Visit LasVegasStripDaily.com and you’ll see some of the finest buildings ever built and so many high rise buildings under construction than you’ve probably imagined. Take a look and you’re left with only one thought, simply amazing. But there is a price to be paid.

What you don’t see are the 12 construction workers whose lives have been lost building at projects underway since early in 2007. It’s hard for me to imagine that officials at those construction companies aren’t concerned with the loss of life; they have to be. NIOSH has been in to investigate and written their report. But the articles being published in the Las Vegas press, point to an illusion of safety, rather than real measures of safety. Alexandra Berzon has written a series on the subject and it’s a series well worth reading, especially if you are a construction worker. As you may know I’m big on reading about how other construction workers are being killed in order to know how to prevent a similar tragedy on other construction sites.

There has been much coverage and apparently not enough safety to slow down the death rate.

The Pump Handle, Deaths on the Strip

Construction Worker Deaths on the Strip:

‘Not in this city’ - Safety engineer says fundamental change impossible in build-crazy Vegas, Alexandra Berzon

Construction Worker Deaths on the Strip:

OSHA goes easy, After meeting with employer only, it often reverses findings, cuts fines, Alexandra Berzon

Construction Worker Deaths on the Strip:

Pace is the new peril, Amid pressure to finish massive projects, 9 men have died in 16 months, Alexandra Berzon

With President Bush as unapologetic as ever these next few months promise to be a marathon of deregulation attempts by this Administration. They will test the metal of resistance to further deregulatory efforts on the part of his Administration. Deregulation like that occurred on April 28, 2004 at 2:30 PM by the SEC that brought this country to it’s knees. It isn’t enough that this Administration’s policies have caused the American taxpayer more than several trillion dollars of nonproductive spending. It’s not enough that those trillions of dollars could have been used to fix the bridges in American that are either functionally or structurally obsolete. It’s not enough that the Social Security fund continues to be headed to financial insolvency while we spend $10 Billion a month on rebuilding Iraq.

Republicans are you listening?

What is going on in America? What is going on in the American mind? We sit idly by as this Administration continues on its path of destruction seemingly oblivious to further damage to the fabric that holds this country together. The Bush Administration should feel shame for the environment they have created that has allowed greed to become the soup de jour on Wall Street. This is not the case. With its head held high, chest puffed out like a bandy rooster the Administration moves to make further regulatory changes they see as necessary and that will surely cause years of damage to America. At what point does pride become foolish? At what point does America wake up to the fact this President is not smart enough to lead this country? At what point will this country’s Congressional leadership take the reigns and shut down any and all efforts by this Administration to do anything.

More than six years ago I thought that while impeachment would be costly for America it would in the end be less expensive than the cost to repair the damage this Administration would surely do to America before the first term ended. I only wish my prediction had been incorrect. In many ways the actions of this Administration mirror the construction on the Las Vegas strip. They continue to forge ahead at a frenetic pace leaving carnage in their wake, undeterred by the damage they have caused and the lives they have disrupted or ruined. Like Las Vegas, we will survive this President and his policies that if continued unabated would surely befall America as greed befell the Roman Empire. Greed has become a cultural norm that is driving us into bankruptcy.

Republicans have to start thinking about more than just re-election campaign contributions.

This President lacked several developmental skills on the day he took office, and he still does. If the Kennedy Administration was Camelot, the Bush Administration is the Wizard of Oz. If Camelot was John and Jackie’s Theme song then If Only I Had A Brain is the theme song for this Administration.

If Only I Had A Brain
(Scarecrow)
I could wile away the hours
Conferrin' with the flowers
Consultin' with the rain
And my head I'd be scratchin'
While my thoughts were busy hatchin'
If I only had a brain

I'd unravel any riddle
For any individ'le
In trouble or in pain

(Dorothy)
With the thoughts you'd be thinkin'
You could be another Lincoln
If you only had a brain

(Scarecrow)
Oh, I would tell you why
The ocean's near the shore
I could think of things I never thunk before
And then I'd sit and think some more

I would not be just a nuffin'
My head all full of stuffin'
My heart all full of pain
I would dance and be merry
Life would be a ding-a-derry
If I only had a brain

But I’m getting off the topic. We need to get this President out of office and to get this country back on track. The Republican Party is ruining itself as a political force by abandoning the principles that made it sensibly popular a few years ago. The Republican candidates are selling their souls to the highest bidder, the Religious Right and cloaking themselves with Wall Street avarice. At this point if it’s not apparent to John McCain and those who control the Party, the party is over because the Emperor has no clothes. Get back to basics, stop spending, pay off debt, stay out of the business of other countries, focus on the problems of this country even when that means regulations and higher taxes and the Republican Party can once again rise from the dead. Winning for the sake of winning is much like Conservative Chic that promotes popularity over principle. In other words, jettison the Barbie Doll from Alaska; she makes no sense.

Is the Republican Party dead? No but this Administration has gone to great lengths to drive nail after nail into the Republican coffin. The Republican’s left in the Senate and House would gain much political capital with voters by stopping this Administration in its tracks before this President leaves office in January. Do everything you can as Congressmen to stop him and his efforts that further damage this country.

Tort Reform - Is your conscience bothering you Dr. Wax?

It’s titled, The downside of tort reform by Arnold Wax, M.D. What it should be titled is, “Why my conscience keeps me awake at night.”

Dr. Wax is a medical oncologist from Nevada. He’s been active in promoting tort reform measures that have largely been implemented in that state. He recently experienced a clear case of substandard medical care that he was convinced would result in a fair result in her favor. So convinced was he of the substandard care that he testified against his fellow defendant doctor. So, what did happen? The defendant-doctor was found to be negligent and the patient-plaintiff was awarded zero damages. This is the same sort of result Jerrica’s estate and parents received from a Polk County, Iowa jury. The same jury that valued human life less than the State of Iowa values road kill. So what did Dr. Wax have to say about this result?

As I'd expected, Mary sued the pathologist who had misread the original biopsy. Soon after, one of her attorneys asked me to serve as an expert witness in the case. As her treating physician, I felt a moral obligation to support Mary's claim. Her lawyer said she was asking only for damages to help provide for her grandchildren—which ultimately became more important when her husband died unexpectedly from a post-surgical pulmonary embolus.

It appeared that the case would be resolved quickly, considering that the defendant freely admitted his error. However, this turned out to be far from true.

….

The trial lasted six days. I was on the witness stand for two hours for direct and cross examination. I described the statistical decrease in Mary's five-year survival, as well as all treatment variations between the different stages of melanoma. I also stated that I thought the pathologist's admission of his mistake was "honorable."

As I'd expected, the jury found the original pathologist negligent. But, to my surprise, Mary wasn't awarded any damages.

….

The trial judge was incensed by the verdict, because the jury didn't follow the legal standard that should have been applied in the case. I was later informed that the defense attorneys planned to go after Mary for court costs, something that the judge vowed he'd never let happen.

Today, Mary is a widowed grandmother, caring for her grandchildren with few resources—injured, admittedly, by a physician's error. She's been off of all therapies since the interferon, which proved successful. But if her melanoma recurs, it will likely be fatal.

And what does the doctor think today about his past tort reformation efforts?

When I helped spearhead the tort reform movement in Nevada, I didn't foresee the unintended consequences of innocent, truly injured individuals not receiving their rightful awards due to jurors' misguided emotions. Had I been aware of that possibility, what would I have done?

If you’d like to read Dr. Wax’s article in  Medical Economics follow the link. My colleague, Brooks Schuelke from Austin wrote a round-up of personal injury blawgs that includes resources and posts about civil justice “reforms”. Eric Turkewitz a New York lawyer who blawgs about personal injury issues also discussed this same article.

It's new and improved and they call it the New Improved Constitution Lite - The Tobacco Institute's Cigarette Constitution

Today I get to write from the heart. The Iowa legislature finally passed a ban on smoking in public businesses with the exception of Veteran’s Homes and casinos. The Veteran’s Homes I can understand from a political standpoint, but the casinos being exempted has me baffled. Perhaps it’s because casinos are really a black hole of reason. Casinos seem to be an oasis where people can exercise most every vice except public sex. Gamble, smoke, drink, swear, hang out and do public sanctioned old-school mob related activity – all sanctioned by the State of Iowa. But really today we’re here to talk about smoking cancer sticks so let’s not digress.

In the Des Moines Register’s Metro & Iowa section today there is Jeff Wagner standing before two flags, Iowa’s and the former Soviet Union. He’s jokingly, but really not, arguing that the big bad government telling us, well not us them, what to do like stop slowing killing the rest of us is against his customers’ (un) civil liberties. Many of his customers agree. Well I should say if his customers could find their way through the smoke filled bar and out the front door they might even protest. I’ve driven by the Blues On Grand, BOG as it’s fondly known, and if the front door to Grand Avenue is open, which it usually is, the building looks like it’s on fire.

“Mr. Wagner, do you have six fingers?”

“There’s a lot of people out there who are anxious, and now they’re just going through a flood. It’s bad timing for the state,” Freohlich said. “The economy is bad, gas is up, food is up and all I can say is our legislators bought into a bunch of propaganda like other states did.”

Propaganda? What propaganda? Are you serious? You sound like the Tobacco Institute testifying before congress that there is no proof smoking cause’s lung cancer. And the bar owners talking all about the price of gas, food and the economy is about as disingenuous as smoking cigarettes will make the price of gas go down. How much does BOG charge for a mixed drink? How much does that drink cost to actually make and deliver to your table? I’d be surprised if that drink costs fifty cents to make and wait to a table. And what does it cost the customer? $4.50 to $6.00? What other businesses have that kind of markup? Not many.

Some bar owners are threatening to sue the State of Iowa – go ahead, but when you show up for court leave your cigarettes behind. You won’t be smoking in court. What I say about this threat is, “Bring it on!” What a lame threat that is. Fred Remington is a good friend and former high school classmate who owns and operates three bars on the Hawaiian Islands. Hawaii banned smoking in restaurants and bars. Fred protested saying all the same things. He organized the bar owners and shouted about “Constitutional rights being violated”, then sued the State of Hawaii. Yawn……. His organizations arguing the constitution as a basis for someone smoking in a restaurant makes the owners sound like a bunch of tobacco plantation owners arguing for a constitutional right to maintain crop subsidies. Why don’t they just say it like it is? Why not argue that people have a right to be addicted to a habit that slowly kills them and those they smoke around.

Last night I, along with about 50 people were waiting for a table in the bar at The Waterfront restaurant in West Des Moines. One couple was ruining the air the other 48 were breathing along with the clothing they wore; not to mention the food they were eating and the drinks they drank. They could have cared less about the other 48 customers. There they sat at the bar in the corner with an ashtray in front of each, cigarettes smoldering without regard to anyone else’s “constitutional rights”. The Hawaii Bar “Moaners” Association already argued the Constitution from some unknown planet. And Judge McKenna did what any judge would have to do, he dismissed the law suit.

Fred, my good friend, as Inigo Montoya said to Vizzini in The Princess Bride, “I do not think that word means what you think it means.” 

April 14, 2007
 
Aloha Members !
As you all must know by now, this past week was very difficult.
 
First, on Tuesday, the 10th, Senator Sam Slom's floor amendment to HB1018 was voted against. This would have allowed for a new liquor classification to exempt them from the smoking ban. This was really our last shot at the legislature this year.  I believe that the regular session ends in the first week of May.
 
Secondly, the very next day, on Wednesday the 11th, our law suit against the State of Hawaii was dismissed by Judge McKenna.  But the good news is, she dismissed it without prejudice.  What this means, is that we can still challenge the law based, on the constitutionality of it, if and when someone or some establishment, gets cited and or fined. The court did not want to rule on a hypothetical situation.
 
According to our Attorney, Paul Yamamura, we could re-file the complaint alleging actual money damages as a result of the smoking law, but we would each have to show actual monetary losses that we incurred and not just percentages of business downturn.  At this point, we are trying to regroup and figure out a different strategy.  We may have lost this battle, but WE WILL WIN this war. 
 
I would like to thank Sam Kekaula and his contingent from Kailua-Kona, I think they had about 12 members in all, for coming to the hearing on Tuesday.  I'm sorry that I can't remember all of your names, but thank you for your sacrifice of time and expense of travel, to help support our organization.  
 
As always, we are open for any suggestions and or recommendations and input that will help build and strengthen this organization.   Till next week, Aloha !!!
 
Fred Remington
President
Hawaii Bar Owners Association
307 Lewers St. Suite #200
Honolulu, HI  96815
926-4711 office
924-5420 fax
479-0782 cell

You might want to consider going back to selling wine because the whine you’re trying to sell isn’t of the quality we are used to buying. Filing this lawsuit was the same as trying to climb the Cliff of Insanity.

“Fred, do you have six fingers?”

And what about those other people affected by second hand smoke? You know the ones whose lungs you’re polluting, clean clothes you’re ruining and meals you’re degrading as they enter those establishments to which I’ll compare to the “Pit of Despair”. Have you thought about their constitutional rights? You know the same ones, who as customers you promise a nice dining experience, then take their money and allow the smoking customers to invade the space they paid for. Or don’t they have the same constitutional rights? (Like I said, “I don’t think that word means what you think it means.”) And don’t tell me about smoking sections in restaurants. Smoking sections in a room would be similar to peeing sections in swimming pools. Under your constitution do people have a right to pee in a public swimming pool? I’m back to The Princess Bride. Like I said, “I don’t think that word means what you think it means.”

Health issues aside let’s just talk about my right to enjoy for what I’ve paid. Wearing clothes just back from the dry cleaners ($$$) my date and I sit down in a public restaurant; spend $25.00 on drinks and a $100.00 on a nice meal. As we bite into this tasty morsel the chef has labored to create, the guy who arrived thirty minutes before us lights up a cigarette and ruins the meal for both of us. After we “enjoy” his cigarette smoke we have to go home to shower and change our clothes because neither of us smoke and can’t stand the smell of cigarette smoke on our clothes and skin. If I have this same “constitutional right” then why can’t I during the smokers’ meal walk over to their table and throw cigarette butts on their entree? Don’t I too have a constitutional right to ruin their meal? And how about if bring along some really cheap cologne and perfume to throw all over their clothes? You get my point, they aren’t just rude and insensitive, they are downright obnoxious about what they do. Perhaps if smokers had been more considerate there would be no need to ban it. But they weren’t, aren’t and never will be. They are self absorbed addicts with no hint of common sense. (Like I said, “I don’t think that word means what you think it means.”)

What about the health effects? Are their any? Is there a constitutional right to slowly kill yourself and to take with you victims using second hand smoke? Back-in-the-day, as my son’s so fondly refer to the past, when my father started smoking it was the manly thing to do. For dad he started when he was 13 and working at the soda depot delivering to stores. By the time dad reached age 35 when the doctor diagnosed lung cancer, until age 37, from my point of view it didn’t seem all that manly. My dad was laid up in bed at home for a long long long time. He spent the last six months of his life in a hospital probably hooked up to machines and puking his guts out from the chemo therapy and radiation treatment. I’ll have to guess because no one would let my sister and us four boys in to see him those last six months. Of course at age 12, everything seems like a long time when you’re waiting for someone to die. One bright sunny day dad called me into his bed room, saying he had something to show me. While lifting up his t-shirt to show me the brass staples that held the 24 inch surgical incision closed, he said “I’m showing you this because I want you to know what smoking will do to you. I want you never to smoke.” Of course when he died I was 13 and at 13, your father is nearly the dumbest person on the planet. So I did try smoking for about a year and a half and then figured out maybe on this point I should concede his argument. My initial argument was, as Vizzini is quoted as saying,

“Inconceivable!”

To what constitution do you smoker’s right people refer? Does it apply to everyone or just bar people? What about the waitresses, waiters, bouncers and bar tenders who don’t smoke and have to work in the smoke filled environment? Don’t they too have this same “constitutional right?” Where exactly is this constitution kept because I’d like to read it?

Today you bar owners who protest get to play the six-fingered man. It’s a line from The Princess Bride. Allow me to conclude this point of view by borrowing a line from the movie.

My name is Inigo Montoya, you killed my father, prepare to die.

School Safety: The Lab, Why do teachers and students have responsibilities?

It seems everywhere you look today someone is protesting being held accountable. Lobbyists are crawling all over Washington enticing our government representatives to pass laws creating immunity against liability. You might want to know what immunity against liability is all about. Well, it’s about someone getting a get out of jail free card against any wrongdoing they might do. Another way of looking this is it’s a category of people asking for the right not to be held accountable if in the future they do something wrong. For a list of those asking for freedom from responsibility follow these links: Texas, U.S. Chamber of Commerce, a national well orchestrated clearinghouse, and even lawyers are lobbying for their clients to get a free-get-out-of-jail card.  It’s all very shameful and discouraging to well behaved and well intentioned citizens.

And that was my point with yesterday’s and today’s posts about school safety and the responsibilities of students and teachers. Students can’t look to teachers and say it’s all your fault, nor teachers to students. Administrators can’t put full blame on either of those two. What makes America work is that everyone has a certain responsibility to society. Even jurors have a responsibility. That doesn’t mean jurors get to turn everyone away from the courthouse without compensation by saying that’s just the way it is, why should the Plaintiff get money? Doing so is just another way of giving the wrongdoer immunity from responsibility.

If you want to know what I’m talking about consider this. What if your teenage son approached you just before heading out with the family car on a Friday night and asked this question; “Mom and Dad, before I leave the house I’d like you to tell me it’s alright if I don’t make curfew, smash up the car, drink even though I’m underage, give liquor to all of my underage friends and use your credit card.” Would you do it? Would you agree to allow him freedom from being held accountable?

Of course you wouldn’t and as parents we all know why. If we did this otherwise good son would see no boundaries to what he could do with his friends. He’d allow himself to be led astray. He’d do everything he wanted to do even though he knew it wasn’t the right thing to do. We all need boundaries. We all need that line in the sand we just don’t cross. We all need to know even if we disagree, that the boundaries are there for a reason and if we cross them we will get in trouble; we will be held accountable.

That’s what duty is about in a tort. A duty is the first necessary element that needs to be proven. Duty is the line in the sand that we weren’t supposed to breach and if we did we are to be held accountable.

And that is what these two posts are able. It’s about being held accountable for crossing the line in the sand.  I’m not picking on teachers and students. Trust me I could write a similar post for lawyers, doctors, accountants, engineers, nurses, clerks and judges. My point is that just ignoring the do’s and don’ts that make up our responsibility in the lab won’t change the rules; that line in the sand will still be there and if we, you, breach it you will likely be held responsible. So today when you look at the teacher’s responsibilities don’t forget to go back and review the student’s responsibilities because those are equally important.  And each has a duty to each other and to other students that may be injured when either crosses that line in the sand.

As a lawyer, a parent and a citizen I support bright line responsibilities rather than granting people a free pass to be irresponsible. I don’t support tort reform that grants blanket immunity to corporate America because it weakens our system and the American way of life. I can’t understand why I should support corporate freedom from responsibilities while working people continue to do the right thing and follow the rules?  America will remain strong so long as everyone has lines in the sand and they are held accountable. Special interests support special rights for a select few. That is wrong for one and for all of us.