The lyrics from the well-known Mother Goose nursery rhyme talking about bridges falling down, pins and needles bend and break, build it up with wood and clay will wash away, we must build it up again, iron and steel will bend and break and how will we build it up, should give us pause for quiet contemplation about our own home towns’ infrastructure.

The Minnesota bridge collapse that occurred August 1, 2007 brought traffic to a standstill and bridge safety to the forefront of every commuter that drives on this 8-lane Interstate 35W slip of road. Thirteen people died and over 145 were injured in this bridge failure.

Will this be an isolated incident? – A primer on bridges.

Today we present a primer about the Minnesota bridge collapse issues.

16 steel plates were ½ inch thick rather than 1” thick. There are 465 bridges of similar design in the United States.  The National Transportation Safety Board concluded the bridge’s “design” was the flaw. Gusset plates holding together angled steel girders that support the bridge from underneath weren’t thick enough and thus were not strong enough for the intended purpose. Gusset plates are not something about what commuters would notice or have much if any knowledge. While design of the gusset plates is the identified flaw, it raises the question about whether the materials supplied were the correct ones. That conclusion means the plans from the 1960’s bridge weren’t adequate for modern day’s heavy, continuous and voluminous commuter traffic. The bridge was being worked on and PSI Construction re were 578,000 pounds of trucks, equipment and supplies were stockpiled on the bridge.  The 2008 State of Minnesota, Office of the Legislative Auditor, Evaluation Report, State Highway and Bridges.

What are Gusset Plates?

Gusset Plate - A metal plate used to unite multiple structural members of a truss.

All this is well and good but one has to wonder about the number of similarly designed bridges and their locations.

What does it mean when inspectors note a bridge is “fracture critical”?

When a bridge is designated as “fracture critical” it means any failure of the parts will bring down the entire bridge. A list of “Fracture Critical State Highway Bridges”

“Fracture-Critical
A fracture-critical bridge is one that does not contain redundant supporting elements. This means that if those key supports fail, the bridge would be in danger of collapse. This does not mean the bridge is inherently unsafe, only that there is a lack of redundancy in its design.”

“Fracture Critical State Highway Bridges – in California (The list is five pages long.)

Provided below is a list of all fracture critical state highway system bridges. A fracture critical bridge is a steel structure that is designed with little or no load path redundancy. Load path redundancy is a characteristic of the design that allows the bridge to redistribute load to other structural members on the bridge if any one member loses capacity. This designation is a function of the design of the bridge and not the condition. In fact, a brand new bridge can be fracture critical. Caltrans has a fracture critical inspection unit that uses specialized access and non-destructive testing equipment to identify any potential concerns, even those that are not visible to the human eye.”

Where can I read about bridges in my home town, county and state?

You can locate Internet accessible bridge ratings by state and county. For instance in Texas six bridges have been identified in the fracture critical bridge category. So much for pork in Washington flowing back home to Texas.

U.S. Bridge Information

“Bridges and large culverts are designed, constructed, and maintained with the best in professional care by highway agencies throughout the country. Their robust inspection and safety programs meet or exceed all federal requirements.

Except where federal exemptions are granted, states are required to inspect bridges on the National Bridge Inventory at least once every two years.

Highway and bridge safety is taken very seriously by our members.

The American Association of State Highway and Transportation Officials, including the Subcommittee on Public Affairs, has extended its expertise and resources to assist with any needs of investigators, the Minnesota Department of Transportation, and our member states. One of those needs has been credible and trusted public information, which is being addressed through the provision of this Web site.”

Bridge Statistics by State – This site allows you with Google Earth to access information directly and locate the bridges on an aerial map or you can download the PDF formatted map.

The Iowa Department of Transportation has really done a nice job of making available information about Iowa’s bridges. They should really be commended for their transparency. Iowa’s Bridge Inventory described by County, sufficiency rating, year built and year reconstructed.

Bridges in Iowa

“To provide increased access to bridge information, the Iowa DOT has developed a Web program that allows Iowans to pinpoint a state highway bridge in their area using Google Earth software and Iowa DOT data. Information available online now includes the year a bridge was originally constructed and reconstructed, if it has undergone major work, the average daily traffic count, the highway it carries and feature crossed, and its national bridge sufficiency rating.

The bridge sufficiency rating is calculated on scale a of 1 to 100 for the National Bridge Inventory maintained by the Federal Highway Administration, with 100 being the highest. The rating is determined following a complex bridge inspection process, which examines its structural components. Any bridge in Iowa found to be unsafe is removed from service until it can be returned to a safe state of operation or replaced.”

What is a bridge sufficiency rating?

“Structurally Deficient and Sufficiency Rating
A bridge sufficiency rating includes a multitude of factors: inspection results of the structural condition of the bridge, traffic volumes, number of lanes, road widths, clearances, and importance for national security and public use, to name just a few.

The sufficiency rating is calculated per a formula defined in Federal Highway Administration’s Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation’s Bridges. This rating is indicative of a bridge’s sufficiency to remain in service. The formula places 55 percent value on the structural condition of the bridge, 30 percent on its serviceability and obsolescence, and 15 percent on its essentiality to public use.

The point calculation is based on a 0-100 scale and it compares the existing bridge to a new bridge designed to current engineering standards.

The bridge’s sufficiency rating provides an overall measure of the bridge’s condition and is used to determine eligibility for federal funds. Bridges are considered structurally deficient if significant load carrying elements are found to be in poor condition due to deterioration or the adequacy of the waterway opening provided by the bridge is determined to be extremely insufficient to point of causing intolerable traffic interruptions.

Every bridge constructed goes through a natural deterioration or aging process, although each bridge is unique in the way it ages.

The fact that a bridge is classified under the federal definition as “structurally deficient" does not imply that it is unsafe. A structurally deficient bridge, when left open to traffic, typically requires significant maintenance and repair to remain in service and eventual rehabilitation or replacement to address deficiencies. To remain in service, structurally deficient bridges are often posted with weight limits to restrict the gross weight of vehicles using the bridges to less than the maximum weight typically allowed by statute.

To be eligible for federal aid the following is necessary (a local match is required):

·                            Replacement: bridge must have a sufficiency rating of less than 50 and be either functionally obsolete or structurally deficient.

·                            Repair: bridge must have a sufficiency rating of less than 80 and the jurisdiction is prevented from using any additional federal aid for 10 years. “

What about those bridges in Iowa?

There are several bridges in Iowa rating below 50. Some carry interstate traffic. There are many throughout the country.

Adair County, number 13110, rating is 39, I-80, built in 1958 and never reconstructed.

Adair County, number 13000, rating is 37, IA 92, built in 1958, and reconstructed 1972.

Bremer County, number 15460, rating is 43, US 63, 1956, never reconstructed.

Bremer County, number 15740, rating is 48, IA 93, built in 1936, reconstruction 1960.

Polk County, number 42740, rating is 49, I-235, Des Moines River and RD, built in 1962 and reconstructed in 2007.

This post is already too lengthy and so to catalog all sub-50 sufficiency rated bridges from the 97 pages of the inventory is beyond this post; but you can examine the report and any bridges you cross to see the sufficiency ratings. Where I live in Polk County we have a number of sub-50 sufficiency rated bridges. We’ll save that for another day. For today let us stick with the Minnesota fact investigation because history may indicate what we should expect.

Can I rely on state bridge inspectors?

Adding insult to injury is the finding that State of Minnesota bridge inspectors’ years earlier noted gusset plates bowing and bending but took no affirmative action to correct the problem or to warn the public.

Is Minnesota alone?

California found all steel deck truss “structures” to be safe.  No problems found in Georgia, Florida or South Carolina. Isn’t this what Minnesota state bridge inspectors also reported up through July 31, 2007? You can read a “Condition of U.S. Highway Bridges: 2000 – 2007” at the Engineers News-Record.  Highway Bridges: Conditions and the Federal/State Role. That report concludes our national bridge inventory of 600,000 includes roughly 12% or 74,000 being classified as structurally deficient.

We wrote before about the King Can Do No Wrong; in this case I guess we will find out if that is still true. Highway Safety – Why if it is negligent can’t I sue the State of Iowa?, Steve Lombardi on InjuryBoard explains the sovereign immunity doctrine.

You be the judge. A selection of videos to view.

Flawed Plans From 1960s Cause Of I-35W Collapse (CBS4 WCCO Top Stories Video) 11/13/2008 11:47:59 PM

NTSB: Bridge Was Doomed The Day It Was Built (CBS4 WCCO Top Stories Video) 11/13/2008 8:15:13 PM

NTSB: Too Small Steel Plates Caused Bridge Fall (USNews.com Video) 11/13/2008 8:04:29 PM

NTSB: Design Errors A Factor In Bridge Collapse (CBS4 WCCO Top Stories Video) 11/13/2008 1:54:56 PM

NTSB stresses connection between bad design and weight (Minnesota Public Radio) 11/14/2008 8:42:13 AM

NTSB hearing: Design errors factor in bridge collapse (Minnesota Public Radio) 11/13/2008 11:28:26 AM

Despite final NTSB report, some still have questions (Minnesota Public Radio) 11/13/2008 1:50:01 AM

NTSB final report: Bad design, plus added weight, led to bridge collapse (Minnesota Public Radio) 11/12/2008 3:40:28 PM

Today I’m going to revisit accidents in which a pedestrian is backed over by a truck or other vehicle while the driver is attempting to back to the rear. A backing up maneuver.

These are tragic accidents. But the tragedy aside we need to learn from them to prevent future accidents from happening. If the rules are followed these types of accident are preventable.  Pedestrians don’t stand a chance when confronted suddenly with an approaching vehicle. That’s not a statement that shouldn’t cause an epiphany its simply reality.

Accidents are about an assessment of fault. Who did what and when did they do it? What should they have done differently and why? Answer those questions and you pave the way to what the civil justice system is all about. Feelings aside they have nothing to do with assessment of fault. The cold hard facts of life include that vehicles are instruments of death. Put a rushed or distracted person behind the wheel and I’ll show you a driver at fault. Just drive down the road and watch the number of people texting or with a cell phone glued to their ear looking around wondering who is watching how important they appear while talking on the phone.

Corporate America is trimmed to the bone. The are squeezing more and more out of less and less. And that means fewer workers have to do more work in less time. In the case of the garbage truck backing over the woman it’s pretty predictable and preventable.

First it’s predictable because it’s not rocket science to expect workers to be downtown on the sidewalks, walkways and alleys of busy Des Moines.  Deliver trucks, garbage trucks and the like know they have to contend with pedestrian traffic.

And backing over pedestrians is preventable. If the driver is intending to back up and can’t see behind they simply need to rely on a spotter. Most vehicles are required to use a rear-audible-warning device that emits a beeping sound as the truck is engaged to back up. If the warning device isn’t working then the truck isn’t suppose to be put into use until it’s fixed. It’s that simple. If the driver is unable to see to the rear then a spotter is used.

This type of accident is far too common than one might think. The first example comes about on October 27, 2004. In that case we researched this issue involving a situation in Oceola, Clarke County, Iowa.  The vehicle was a shag truck with a disconnected rear-warning-device. The driver couldn’t see and simply backed up over a fellow security guard worker. Luckily the woman didn’t die. She is today a living example of a miracle. In spite of my grouchiness we  remain friends.

The second example came up as a news item by the Gazetteonline.com from Cedar Rapids and it caught my attention on June 7, 2008. In that case a Garnavillo woman working at a sand company was backed over by an end loader. She off course died at the scene. You might wonder how this can happen and how to prevent it from happening to you or your loved one. OSHA has rules that apply to certain industries that are designed to reduce the number of fatalities from backing over someone at a work site.  There is no indication of what time the shift began or what the worker was doing at the time she was backed over. Workers on work sites are busy with individual duties and can’t have eyes in the back of their head. Spotters can help avoid these mishaps along with auditory rear warning devices.

In the third example a 4-year-old child was backed over in Gowrie and it was reported in the Des Moines Register on October 7, 2008. In that instance the driver of a Ford pickup truck didn’t see the child as they were backing out of the driveway, continued and the child was killed.

In the latest case a Des Moines woman died of massive head and leg injuries on November 7, 2008 when a garbage truck backed over her while in an alley to the rear of the Aviva USA Insurance Company building. That building is close to the intersection of Fifth Avenue and Park Street, downtown Des Moines.

These are all sad cases and our heart goes out to the survivers and the drivers who live with the pain but according to experts these accidents are preventable.

Rear warning devices have to work, shouldn’t be plugged up or covered or disconnected. They should be appropriately loud and distinct enough for the work zone. If the vehicle was manufactured with a rear warning device it can not be disconnected without a written consent of the manufacturer. If the rear alarm doesn’t work the vehicle shouldn’t be used until it’s repaired. OSHA has specific rules based on the industry and the history of past accidents.

“This is in response to your May 12 letter requesting compliance determinations for your "Radar Backup Alarm System 202" as it relates to the Occupational Safety and Health Administration (OSHA) standard 29 CFR 1926.601(b)(4)(i). That provision addresses reverse signal alarms for motor vehicles.”

From 1990 to Jan. 2003 there were 9 child deaths out of 42 children involved in backing up incidents.

Research has proven that rear warning devices work. There is also research that discusses the overuse of these devices and competing noises and how those noises interfere with a pedestrian’s perception of imminent danger. That simply means drivers can not and company’s should not require drivers to rely solely on rear warning devices when rushed and in a hurry to complete a route. 

One company, The Strattus Group in its Backing Accident Prevention instructions cites numbers of accidents and costs associated with this type of accident and they contend “All backing accidents are preventable!!!!.”

“There are over three million rear-end accidents (backing accidents) each year in the USA, over four billion dollars spent on repairs and over one thousand lost lives! Studies have shown that 60% of collisions in the transportation field involve backing / parking.  While these low speed collisions rarely produce injuries, they do occur frequently, costing you and your insurance company money. Fleet safety and consumer back up accident prevention devices (reverse car parking aid) are a necessary and low cost solution.

Backing accidents can be significantly reduced by warning commercial and consumer drivers of eminent danger saving lives, property and money. 

All backing accidents are preventable!!!! 

Stratus back-up Rear View System (Vehicle Driver Alert System), safety collision avoidance / parking device is unique.  Commercial fleets like Pepsi and Budweiser understand the safety issues associated with vehicular mishaps. Commercial fleets understand that 60 - 80% of the their accidents involve backing. Most backing accidents are not accidental, with the proper equipment and training most can be avoided. The first choice in Backup Warning System is Stratus  by The Stratus Group. Our collision avoidance system (reverse car parking aid) is simply the very best on the market and we understand that making distribution opportunities available is essential to our continuing development and marketing.

Our Backup parking alarm system far out performs other backing radar and safety parking systems on the market. A digital display and audible alert  show distance in feet and inches. Our back-up sensor collision avoidance system is the best on the market. The Stratus reverse warning device is installed on all Hummer vehicles sold in Broward County area, commercial and consumer vehicles ford -mercury -excursion -explorer -Lincoln  Chevy Mercedes etc. Stratus backup alarm warning system is the absolute best on the market. No radar reverse parking assist product even comes close. If you are searching for a backing accident prevention, reversing or echolocation avoidance system for you car, you have found the best product on the market”

Advice for pedestrians

People on brakes to have a smoke need to be especially careful watching, listening and keeping their head on a swivel.

Advice for the landlord

Watch where you place the dumpster keeping it away from places where workers congregate to smoke or wait for rides. If the dumpster area is limited place signs advising pedestrians and drivers alike.

Advice for the truck driver and company

The company should not be asking drivers to do more than they can safety perform. The drivers should use spotters and make sure the rear warning devices are working before taking the truck out of the yard. Use spotters when necessary.

Perhaps these tragedy’s can be avoided or at least reduced.

RESOURCES

Do Motor Vehicle Back-Up Warning Devices Protect Young Children?, by Sapien, et al.

Consumer Vehicle back-up sensors - Accident Prevention Device

OSHA 29 CFR 1926.601(b)(4)(i)

Alfred, 40 remains healthy. Donations can be made directly to the Virginia Zoo.

As reported by Debbie Messina, The Virginia-Pilot

Financial Contributions can be made via the Virginia Zoological Society web site.

Ongoing financial support from the community is essential to Virginia Zoo's success and growth.

Virginia Zoological Society accepts tax-deductible cash contributions, gifts of appreciated securities, and gifts of goods and services on behalf of Virginia Zoo. Virginia Zoological Society is the official support organization for Virginia Zoo and is a non-profit organization under IRS 501 (c) (3). Gifts may be applied to our Annual Fund, Capital Campaign, Keeper Fund, Conservation & Research Fund, or may be designated by the donor for a specific use.

Monetary Contributions Virginia Zoological Society accepts monetary contributions year-round for our Annual Fund, Capital Campaign, Keeper Fund and Conservation & Research Fund. Monetary (paid via check or credit card) gifts may be mailed to:

Virginia Zoological Society
Development Department
3500 Granby Street
Norfolk, VA 23504-1329

Or Make a contribution online with a Visa, MasterCard or Discover card.

The equipment used was not intended for the use and appears from the report to have swung wildly after the incident injuring other workers.

The lesson from this NIOSH fatality report is to use equipment for its intended use and in the manner for which it was manufactured. Also get the right training and read the user manuals.

Municipal Maintenance Worker Killed When Struck With the Steel Coupling of an Out-of-Control High Pressure Water Hose. This is an older case report dating back to December 1996.

KICK-BACK: A strong thrust of the saw back toward the faller generally resulting from improper use of the nose of the bar or the pinching of the bar in a cut. Kickback causes loss of control of the saw and this in turn results in numerous saw cuts each year. Kick-back also refers to a tree jumping back over the stump toward the faller. This kind of kick-back generally results from a tree being felled into standing timber and/or lack of stump-shot.

OSHA provides a list of the 100 most cited OSHA Construction Standards and provides the top 25 physical hazards.

The 100 Most Frequently Cited OSHA Construction Standards in1991: A Guide for the Abatement of the Top 25 Associated Physical Hazards

”Fatalities and injuries due to accidents continue to besiege the construction industry. In an effort to help employers, employees and OSHA compliance personnel (CSHO's) identify hazards that are causing accidents; OSHA has compiled listings in this report of the 100 Most Cited Standards in the construction industry. The purposes of the report are to: 1) identify the hazards causing accidents that are associated with the most frequently cited OSHA construction standards; 2) educate the employer, employee and CSHO on hazards found on construction sites and to offer suggestions for eliminating, controlling or mitigating the hazards; 3) notify employers of the types of violations on construction sites that OSHA personnel find most frequently; and 4) provide information in a format that would be readily useable for safety talks, tool box meetings, etc.

The first part of this report contains two lists:

The first list includes the 100 most frequently cited construction standards. The second list of 100 covers only those citations for standards related to physical conditions on a job site. This list does not include citations for so called "paperwork" requirements such as the hazard communications standard (Code of Federal Regulations - Title 29 [CFR 29], 1926.59)and safety training and education (1926.21) but does include citations for standards such as hard hats (1926.100), guards for open sided floors (1926.500), etc. The report refers to the first list as the 100 Most Cited List and the second list as the 100 Most Cited Physical List.

The second part of this report (Chapters 4 and 5) focuses on the top 25 construction hazards from the 100 Most Cited Physical List and serves as a guide to the elimination, control and or mitigation of the physical hazards addressed by the standards cited.”

More often than I like to recall there is another accident where two or more cars collide with one driving the wrong way on the Interstate. Our highways here in Iowa are I- 80, I-235 and I-35. In the recent past there have been wrong-way collisions in Richmond, California, Salem, Oregon and Iowa on I-80.

Like running a stop sign this issue has come up a few times in my practice and it has always puzzled me. You would think no one would purposefully turn and drive the wrong way against traffic, but a few do to avoid long traffic lines. There is nothing we can do about the drunks and those who purposefully ignore how risky a practice it is. But what about the others? Lawyers are citizens first and if there is something about the rules of the road that can be changed to avoid accidents we would like to act. That’s really why most of us attended law school; to make the world a better place.

A Persistent Problem

Driving the wrong way on freeways has been a nagging traffic safety problem since the interstate highway system was founded in the late 1950s. Despite four decades of highway striping and sign improvements at freeway interchanges, the problem persists.

Studies, such as those performed by the Washington State Department of Transportation (WSDOT), show the vast majority of wrong-way drivers correct their mistakes before causing a crash by simply turning around and heading in the right direction. But for unknown reasons some drivers, even when sober, head straight into oncoming traffic with devastating consequences.

On average about 350 people are killed each year nationwide in wrong-way freeway crashes, according to an analysis by retired FHWA traffic engineer Dennis Eckhart using the National Highway Traffic Safety Administration's Fatal Accident Reporting System. The 350 figure covers those killed on divided highways, including driving the wrong way on one-way traffic ways such as freeway ramps. From 1996 through 2000, 1,753 people died in wrong-way crashes on the Nation's freeways, according to Eckhart's analysis. Thousands more are injured. In the four-county area where Klotz was killed King, Snohomish, Skagit, and Whatcom counties—136 wrong-way crashes between 1997 and 2000 resulted in 81 injuries and nine fatalities.

"While there are safety programs exclusively for rail crossings and work zones," says Eckhart, "I am not aware of any national-level program to combat the wrong-way problem. However, at the State level, some States such as California do have a wrong-way prevention program that funds safety improvements." State departments of transportation (DOT) across the country have taken additional measures to improve ramp designs, signage, and striping to prevent wrong-way incidents. Other States are experimenting with intelligent transportation system (ITS) technology to address the problem.”

U.S. Department of Transportation, Federal Highway Administration, Sept/Oct. 2002

If the issue is intoxication or simply a refusal to follow the rules-of-the-road then there is little we can do but to punish and punish severely. This is a judge’s sentencing discretionary function; something we should bring back from earlier years. If it’s the sign and the words used then it should be somewhat obvious from what the drivers tell us. And in that instance the DOT needs to correct the problem. If it’s sign pollution, with too many signs causing driver confusion, then the DOT and municipalities need to act by restricting signs. If the issue is the soccer Mom syndrome with rushing around to too many places while talking on the cell phone while the kids watch a movie on the DVD player, then it’s the driver’s fault for doing too many things and being distracted. Same goes for the teenager who is too busy texting to pay attention to the traffic conditions. Old age is just a natural condition of living long enough that human capital wears out. That’s a licensing issue for the DOT.

One possible solution to the ghost drivers…

Germany came up with an interesting solution used on the autobahn. They call the ghost drivers who trigger a radio announcement that interrupts your radio to warn you.

“Perhaps the best solution would be to follow Germany’s model: Wrong-way drivers on the autobahn ("ghost drivers") trigger a radio announcement that interrupts whatever you’re listening to, warning you of the situation and that car’s approximate location. That way, you can pull off onto the shoulder and keep a close eye out for someone coming from the opposite direction at well over 100 mph on your side of the road.”

Geister Fahrer - Translates from German into "Ghost Driver;" a driver who drives on the wrong direction on an autobahn, often with headlights turned off at night. Usually a drunk driver but can also be a thrill seeker, suicide attempt, or horrendous driver error.   That’s an interesting idea but I wonder how the use of iPods and CD players has affected the success rate of the German solution? Perhaps motion detectors that flash warning lights towards the offending driver would signal their mistake and warn those coming head on. The U.S. military along with law enforcement must have some type of motion detector that could be modified and transformed into a wrong-way surveillance device.

This case begs the question; when is arbitration nothing more than window dressing?

My French-Canadian mother turned eighty-one on November 5^th. Mom is what you call old school. When something bad happened to us after we kids had done something stupid, she’d say, “God is punishing you.”

Ninety-nine point nine percent of the time in a settlement involving a professional negligence claim the professional demands as part of the settlement a confidentially clause. It’s not unusual to have one as part of product liability and sexual harassment claims. Most claims where a person or product’s good reputation is at stake they want the lid put on any further bad publicity. In the case of American Apparel, Inc. and its’ CEO it is reported they didn’t just want the appearance of a quiet settlement, they wanted it to also appear as though they had won the case in court.

Nicholas Casey, of the Wall Street Journal reports that Dov Charmey and American Apparel agreed to pay a former employee $1.3 million to settle her sexual harassment claim. As part of the agreement for settlement she agreed to keep the money a secret (confidential) and to thereafter take part in an arbitration proceeding in which the outcome of Charmey and American Apparel winning, was a foregone conclusion. In other words she had to lie down and lose in the arbitration hearing.

You might wonder if this is legal and if it is not legal what remedy would the Court apply if either side didn’t do the lay-down thing. But, before you jump to any conclusions know that the alleged harasser’s attorney says it was her attorney who came up with the idea. I don’t care who came up with the idea, they all agreed to the terms.

Then the unthinkable happened. The woman who made the claim grew a conscience and refused to go through with the shamatration. She did a no-show at the shamatration and no Dov-money was paid. So that ends it right? Wrong. The alleged sexual harasser and his corporation that was to pay a cool $1.3 million wanted their day in Court; so to speak. Well, maybe not in court, but in shamatration. So he sues his accusser asking the Court to compel her to do a real arbitration to decide if she violated the terms of settlement by not attending the shamatration thing.  Part of me wants to believe this opera will end with all parties getting from the Court a kiss goodbye. But it doesn’t end there because for some reason, even though they haven’t paid a dime, the defendants seem to want a ruling or perhaps to force the accuser to be there so they can have the benefit of their bargain. That benefit being good publicity to feed to the news-atainment industry and the gossip loving public that believes just about anything in print or on the tube. Just don’t ask us to think and we’ll believe whatever you say on TV. He and it probably need good publicity to prop up the stock price of AAI so they can get the Board of Directors off their backs. We are getting too many characters in this opera-atration. Let’s get back to the original script. Okay then, meet in court.

So the California Court of Appeals (Oh my God, I’m shocked! This took place in La-La Land?) (Go figure.) heard the appeal (I wonder if she showed up for that argument?) decides we need a real arbitration to determine if she breached the settlement agreement; the one that they believe is probably illegal. The CCA in its unpublished opinion warned the parties that the initial agreement might not be legal. Might not be legal? Are you kidding me? Part of me wants to believe this entire case; the entire suit-a-tainment including the original case is all contrived for the sake of publicity. You know sort of like a department store being sued over whether Santa Claus is real. The department store gets publicity, customer’s flock to the store to buy presents to prove Christmas is real and the stockholders go home happy as clams at high tide.

“First, defendants seek to arbitrate the issue of whether plaintiff, Nancy Nelson, and her attorneys breached the settlement agreement by failing to appear in San Francisco at an “arbitration” with foreordained facts and a predetermined award which would be followed by the issuance of a misleading press release. Second, defendants seek to compel arbitration of whether plaintiff or her attorneys breached the confidentiality provisions of the settlement agreement. We conclude the language in the arbitration clauses in the settlement agreement required the petition to compel arbitration of these two disputes be granted. We emphasize defendants are not seeking to compel arbitration of the questionable “arbitration” with foreordained facts and a predetermined award which would be followed by the issuance of a misleading press release.”

It seems to me the Court missed one small but somewhat significant legal principle: The Courts will not assist by enforcing agreements to do that which is illegal. How can the CCA decide the second issue without first determining the legality of what they agreed to do?  Let’s look at the example of a drug deal gone badly. The pusher sends the mule with 50 kilos of cocaine to be delivered up north. The ride is set up with the drugs concealed. The delivery route takes the mule through Iowa where he is stopped for a minor traffic violation, where the drugs are discovered and seized. All of the narcotics are seized by the State of Iowa.  Because of a technicality with the arrest all charges against the mule are dismissed. Instead of “taking out the mule” the dealer enters into a written agreement for restitution. After not holding up his end of the bargain the dealer sues the mule in state court. Can the Court rule on the restitution agreement without first examining the transaction that formed the basis of the agreement? No, because the Court isn’t going to assist the drug dealer in collecting illicit drug money. Other examples are gambling and debts to loan sharks. The Court will have no part of supporting illegal activity.

It appears the CCA decision missed the point. In the instant case the Court should have simply said, go away, no joy, what you agreed to do is determined by us to be illegal and we’ll have no part of it. Or, you’ve made an incomplete record of which we are unable to examine the underlying transaction and we refer it back to the lower court.

IV. DISPOSITION

The order denying the petition to compel arbitration is reversed. Each side is to bear its own costs on appeal. Upon remittitur issuance, the previously entered stay of trial shall expire.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

You don’t send litigants back to enforce what was essentially illegal to do in the first place. You can’t agree to settle an illicit drug-sale dispute and then go to court to enforce the settlement agreement. This isn’t a cable show on Television. We’re not on the Jerry Springer Show. This is real life, with real laws, real investors, real stockholders, real money, real products and we are all real investors with real life-savings that are supposed to be there when we decide to retire. Real life decisions are made based on what is published as the truth. In some parts of the country “truth” remains definable. When lawyers get into the practice of using the legal process for the purpose of deceiving the public they have crossed the line. When corporations and CEO’s do the same they need a reality check. When they all act out their fantasy settlement to deceive the investors and potential investors then it’s time to find a new job.

I’ve never liked arbitration because it has always seemed to me to issue one-sided decisions in favor of business. These are the same arbitration courts the United States Chamber of Commerce has in mind to bind consumers to the Chamber-members fine print consumer agreements. It should shock us all that arbitration decisions are so predictable.  That predictability starts with the fine print contract. You know the fine print agreements you and I are asked to sign at the customer service counter. The one’s they require you to sign that describes on multi-page-colored forms in fine print on the reverse side of the agreement that is shoved across the counter while ten people wait in line for their cell phone service. These are the same predictable tribunals using the same predictable contract language that the Chamber calls fair.

The consumers are missing a point they would be wise to appreciate. Not all that is legal is fair. These arbitration courts are predictably unfair. In the Court’s mind they may be legal but fairness within them is a foreign concept.

What Dolly would have said to Mary Nelson, Dov, and American Apparel, Inc. was that God is punishing you, now go home.

The Iowa State Patrol report has two of the four vehicle passengers were injured. In this collision the northbound vehicle is stated to have crossed the center line sideswiping the southbound vehicle causing it to flip on its side and coming to rest in the east ditch. The northbound vehicle came to rest in the west ditch. Iowa Falls ambulance and Cerro Gordo County Ambulance crews along with Mercy Air Life removed the injured.

The two trucks were a 1995 Chevrolet K2500 and a 2000 Ford F550. The K2500 is a ¾ ton pickup truck.  The F550 is a unique light frame truck.

“The Ford F550 is a class 5 Ford conventional truck. It is unique in its weight class in that the 2003 model shares fenders, hood and grille as well as the cab with a pickup. This model is used in places as a light-framed armored truck such as the Armet Armoured Vehicles Gurkha.”

“The Roman Catholic Diocese of Davenport on Monday released the names of four more priests it says can be "credibly accused" of sexual abuse.”

SNAP is an organization for Survivors Network of those Abused by Priests.  The Vatican has issued screening guidelines for priests.

“The church said it issued the new guidelines to help church leaders weed out candidates with "psychopathic disturbances." The scandals have rocked the church in recent years, triggering lawsuits that have cost hundreds of millions of dollars in settlements.”

If you are at all interested in a seeing a list of priests with some level of culpability visit the Bishop Accountability Organization online. A search page allows searches by name, diocese or state.

Whatever may have caused the 66-year-old driver of a motorcycle to lose control cost him his life. Rounding a curve, while not wearing a helmet and being on a gravel road were the mixture of circumstances on Highway 183 south of Creston, . The accident occurred around Iowa3:15 P.M. on Saturday, November 1, 2008 in Pottawattamie County.

For motorcycle riders the fall can be a very dangerous time.

The Irish Times reports a doctor at Our Lady's Hospital for Sick Children in Crumlin, Dublin removed the healthy kidney from a child. The reports indicate the parents even raised questions concerning the side chosen by staff to be operated on. The doctor was a specialist. The hospital had a time-out policy. A time out to some degree occurred or so it was reported afterwards. The child had been anestatized. The parents were present and raised questions. The doctor had previously seen the child as a patient. So what went wrong?

The investigation team identified 10 principal contributory factors to the error.

These included the fact that: the hospital has no site-marking policy to eliminate the risk of wrong-side surgery; an incorrect imaging report from six years earlier had not been identified and corrected; there were delays in filing hard-copy X-ray reports in medical records - one of the child's X-ray reports "had been lost for six months" in the period between the X-ray and admission for surgery; and there was no fail-safe system to ensure a patient undergoing removal of a major organ was discussed in a multidisciplinary setting.

And what was said to be the reason for the error? Here is what the consultant found to be the reasons for errors.

Reasons for error: contributing errors

•A consultant general surgeon wrongly listed a child with a poorly functioning right kidney for a left-sided nephrectomy (kidney removal) after seeing the child in outpatients.

•Concern was expressed by the child's parents about the side of surgery before the child was taken to theatre.

•The operation, removing the wrong kidney, was carried out by a specialist registrar in pediatric surgery who had not seen the patient previously.

•No X-ray images were reviewed prior to or during surgery even when it was noted the kidney being removed looked healthy.

•At the time of the incident Our Lady's Hospital for Sick Children had no formal or universal process to confirm that the correct patient was having the correct procedure, and on the correct side.

•When the wrong kidney was removed from this child the error was realized immediately but it was not possible to put it back.

•Staff felt their workload was a root cause of what happened. There had been an increase in referrals to the hospital without extra staff. Junior surgical doctors worked on average 73 hours a week when not on call and 107 hours a week when on call between January and April this year.

•Often patients are admitted outside normal working hours on the day before surgery, which leaves little chance for their review before surgery.

•Theatres were so busy staff reported the average turnaround time between patients was two minutes.

 

With Halloween being right around the corner food safety has to be on every mother’s mind. What candy is made in China? What is the likelihood that melamine could contaminate the candy my child is given? Ever parent needs to consider warning their children to eat no candy while on the go but to wait till they get home and allow the parents the opportunity to inspect their booty. No ifs, ands, or buts allowed.

And if there is any possibility of contamination, play it safe and throw it out!

1.      Candy made in China sickens 23 schoolchildren in Cebu.

2.       

3.      Melamine found in sunflowers.

4.       

5.      Jelly beans.

6.       

7.      Lollypops made in China.

8.       

9.      Halloween Candy "Made in China" Buy At Your On Risk

10.   

11.  Gummies from China

Here is the querie I Googled:  Where can I get a complete list of Chinese companies that manufacture candy and that are sold in the United States?

What came up? Company List - Found 547 companies for 'Candy'

Obviously it would be senseless to list those companies here. This Halloween instead of risking kidney failure for your children write to the lobbyists send a message to the foreign companies who sell candy in the U.S. market by not buying their candy. This will demand they clean up their act.

And if you didn’t have enough to worry about with melamine, look what Mars and Nestle are lobbying the halls of Washington about. The right to sell candy intended for 3 – to 8- year olds that has a small toy inside the chocolate shell.

The fight is over a product called Nestle Magic, a chocolate ball covering a plastic shell, inside of which is a small plastic toy in the form of a Disney character. The product is aimed at 3- to 8-year-olds.

A child is supposed to break open the chocolate, separate the two halves of the plastic shell and take out the hard plastic figure. Some consumer groups have complained that the product is dangerous because the toy presents a choking hazard. They argue that it is irresponsible to associate toys with something that goes into the mouth, like candy.

It makes me wonder what the children of lobbyists eat for Halloween.

The Des Moines Register today in the Metro Edition endorsed first term Congressman Representative Bruce Braley. The editorial endorsement lists a few of Bruce’s accomplishments. In doing so the Editorial Board describes how Bruce shows up for discussion with copies of the legislation obviously read, dog-eared, post it notes and his scribbling in the margins. The Register’s Board saw the work, skill and effort of that it takes to be a successful trial lawyer. The law allows nothing less from the lawyer. Trial lawyers don’t survive in this business without being diligent, having a tremendous ability to read voluminous amounts of information, to sort that information, remember the important details and then reassemble it into their mind in a way that they are able to regurgitate it back to a jury in a way that while not written in that form is understood by the common man and woman.

I dare say if you asked Congressman Braley if what he is doing goes above and beyond that which we should expect from our elected officials, he would laugh, smile and tell you about how he wishes he had more hours in his day to do more. Bruce Braley as a trial lawyer offered his clients no less than what you saw as a hard-working-tough-nosed Congressman who pays attention to the detail of every issue he considers.