Consumer Rights


According to a story in the Houston Chronical (also reported on in the New York Times), Texas tort reformers are at it again.  On the horizon in the Texas Legislature this year are several bad and unneeded “reforms”.  One law being proposed is called “loser pays”.  It is an old idea with a deceiving moniker.  The law, as proposed in a draft by Governor Perry, would make the person who brings the lawsuit pay for the expenses and attorney fees of the other party if they ultimately lose their lawsuit.  That might sound fair to some, but the law is one-sided.  The only time the loser pays is when the loser is the plaintiff.  If the loser is the defendant, which is the case in a majority of lawsuits filed, the defendant is not required to pay expenses and not required to pay the winner’s attorney fees.  Not anyone’s idea of fair.  But fairness is not the point.   

The law is being proposed as a measure to stop frivolous lawsuits.  In the Times article, a professor at the UT School of Law said no serious studies on frivolous lawsuits have found that frivolous lawsuits are a real problem.  If the law is a solution to a non-existent problem, why are taxpayer dollars being wasted on this issue.  It is time for the politicians to get back to work and quit raising the lawsuit boogeyman promoted by insurance and business interest.  These special interest groups raise this issue every couple of years to promote their goal of limiting their personal liability and ultimately to shirk their personal responsibility to average citizens.

“Loser pays” is a measure designed to put fear in the heart of the average person who wants to assert their right to seek justice and make a claim.  Any attorney the claimant consults with will be required to tell the claimant that if there is an unjust outcome and they lose the case, they will owe the defendant their attorneys fees.  Even when someone feels they are right, they will be reluctant to bring a suit, out of fear that an already bad situation could possibly be made worse.  This is the response business and insurance lobbyists are looking for in this measure.  But business and insurance interests will never have that same fear, because the proposal does not ask them to pay costs if the person who brings the suit is successful.

Texas is also looking at regulating attorney fees.  We all know that big businesses and insurance companies can hire any lawyer they want.  In fact many insurance companies have lawyers on their payroll.  A regular person sometimes can’t afford to hire an attorney.  Contingency fees make it possible for the little guy to get legal representation on par with what big businesses can afford. 

Texas legislators want to cap contingency fees at a low-level.  Free enterprise is the cry of every legislator who would push this kind of bill and no one is suggesting a cap on what insurers and big businesses pay their lawyers.  But it is ok to limit what kind of representation the little guy can receive, while encouraging the deep pockets that would obstruct access to the system.  Think what would happen if the NBA decreed that half of the teams can pay as much as they want for their players and put a cap on what the other teams could pay.  Not a fair system.  But fairness (justice) is not the goal.

The CPSC issued a recall on 82,000 Pottery Barn Kids drop side cribs, according to Reuters.  The recall is being issued for cribs sold between January 1999 and March 2010, at Pottery Barn Kids retail stores, online at www.potterybarnkids.com, and through the Pottery Barn Kids catalog.  The CPSC reports 36 instances of malfunctions with the drop sides resulting in seven injuries where children got their legs caught or fell out of the crib.  The CPSC reports that one child’s head became stuck, but that instance did not result in injury. 

Over the past five years the CPSC has issued 12 recalls of drop side cribs, made by various manufacturers, resulting in the recall of more than 7 million cribs.  The CPSC reports that over the last ten years, 32 infants and toddlers have died as a result of incidents involving drop side cribs manufactured by various companies.  Additionally, the CPSC received reports of 14 other deaths possibly related to drop side cribs.  The CPSC plans to have news rules in place by the end of the year regarding the manufacture of drop side cribs.

John Stossel, gnat-like reporter for Fox News has published a column titled “Parasitic Tort Lawyers” and also aired a program on Fox with the same message.  He leads off the story with the sentence, “Tort lawyers lie.”   His story goes on, “as one of America’s first consumer reporters, I’d avenge harmed consumers by bringing cameras to the offending business and confronting the crooks. My work warned others about the dangers in the marketplace but didn’t do much for the victims.”  I’ll get to the video of him “confronting the crooks” in a minute. 

Stossel quit consumer advocacy reporting years ago and was quoted as saying, “I got sick of it (consumer advocacy reporting)…  I also now make so much money I just lost interest in saving a buck on a can of peas. Twenty years was enough. But mainly, I came to realize that the government was doing far more harm to people than business and I ought to be reporting on that. Nobody else was”.  He has also claimed attorneys do more harm to people.  Stossel has denied making the comment, but a tape of him making the comment has surfaced, and his actions certainly lend credibility to the people who have used this quote.  Even if he has grown weary of helping average people, they still need help.  Every day.  Average people still get injured, whether Stossel cares or not.

The lie that tort lawyers tell, according to Stossel, is that lawsuits make society better.  That is not the purpose of lawsuits and Stossel knows this.  Some may claim this as a by-product.  But the purpose of a lawsuit is to compensate the injured individual.  The compensation comes from the person who caused the harm.  The person who caused the harm is held accountable for their mistake or intentional wrong doing.  The reason Stossel knows this is that he has personally participated in lawsuits.

This is a video of one of Stossel’s confrontations.  He confronted a “crook wrestler”, and asked him to admit to the world that wrestling is a fake sport.  When the wrestler took offense to Stossel’s questioning, the wrestler hit Stossel up-side the head, to prove that wrestling is not fake.  What did Stossel do to right this wrong.  Did he whip up on the guy who beat him.  No he ran.  To the nearest lawyer. 

Stossel sued, and according to several sources, settled for more than $400,000.  This confrontation with the wrestler did not leave him bloody, Stossel walked (well ran) away from the confrontation, nothing was broken.  He sued and got over $400,000. 

Stossel’s column goes on to say that after he began to report on bad companies, that he “started referring hurt consumers to lawyers.  Imagine my shock when consumers called to say their lawyers took most of the money.”  Stossel does not say in the story how much he got from the wrestler payout or how much his attorney got.  Stossel continues, “even when the lawyers do help their clients, they hurt everyone else because fear of their lawsuits takes away many good things.” 

When lawyers help their clients, they help everyone else, because they force the person who is responsible for causing the damage to pay the victim and the victim does not end up relying on the state (me and you) to take care of them.  So no John Stossel, lawsuits do not hurt everyone else.  You cannot be against government sponsored programs and against lawsuits.  If it were not for lawsuits, victims of other’s negligence would be on the dole.  That is a fact.

Thanks to PopTort for his great coverage of the gnat.

The CPSC has announced a recall of 12 million drinking glasses sold at McDonald’s restaurants over the last couple of months, according to a story in the New York Times.  The glasses were a part of the promotion of the new movie Shrek Forever, which came out in May.  The glasses feature different characters from the movie and contain cadmium. 

Cadmium is a known carcinogen and can induce several types of cancer. Industrial exposures to cadmium can cause metal fume fever in workers and can progress to pneumonitis, pulmonary edema and even death.  Long term cadmium exposures have been shown to cause kidney disease and softening of the bones.  In the case of the Shrek glasses, children could receive long-term exposures from using the glasses on a daily basis.  Recently, cadmium was found in metal jewelry manufactured in China and sold at various retailers such as Wal-Mart and Claires. 

China continues to bombard our children with dangerous chemicals, from many different sources.  The CPSC needs to be vigilant about this and the lead problems in products coming from China.  Our children’s future health depends on it.

According to CNN, Maytag has issued a recall for 1.7 million dishwashers.  The electrical system in the dishwashers is faulty and the dishwasher’s heating element can pose a fire hazard. 

The CPSC reports that Maytag has received 12 reports of fires caused by the eating element failures and no injuries.  One kitchen sustained extensive fire damage.  CPSC reports that the “recall includes Maytag®, Amana®, Jenn-Air®, Admiral®, Magic Chef®, Performa by Maytag® and Crosley® brand dishwashers with plastic tubs and certain serial numbers”, which can be found at the CPSC.  The serial numbers are located on a tag inside of the tub near the left side of the door. 

The recalled appliances were sold at various stores across the country between February 2006 and April 2010, for between $250 and $900.  The recalled dishwashers should not be used again.  If you have one of the affected dishwashers the electric supply should be shut off immediately.  Consumers can contact Maytag directly at (800) 544-5513 or visit the firm’s website at www.repair.maytag.com; to discuss repair or replacement options.

CNN reports that the maker of several drugs that were recently the subject of a giant recall, including Children’s Tylenol, Children’s Zyrtec, and Children’s Benadryl, is moving to correct the problems that necessitated the recall.  McNeil-PPC, a division of Johnson & Johnson corporation, has had four major recalls in the last seven months, including the latest recall. 

The latest recall was issued because tiny particles were found in the children’s versions of several popular medications.  The company has not released what kind of particles were found other than stating that they could be solidified product or manufacturing residue, like tiny metal particles.  In addition the company stated that some of the products in the recall could have a higher concentration of the active ingredient than listed on the label.

In November 2009 Tylenol Arthritis Pain medication was recalled because there were reports of mildew/mold smell coming from the bottles of product, and instances of people being sickened by the product’s smell.  In December of 2009 that recall was expanded to included Tylenol caplets.  In January the company recalled containers of Motrin and Tylenol because of an unusual smell coming from the container packaging.

An editorial in the Oklahoman talks about a tort reform bill passed last year in Oklahoma.  The bill is of the sort contemplated by the article I talked about yesterday.  The 2009 reform bill passed in Oklahoma put a cap of $400,000 on non-economic damages, and was supposed to create a taxpayer financed indemnity fund so that the state could pay the amounts above the cap when the cap is waived. 

Like the article yesterday stated, reformers are looking to shift their burden, the burden of personal responsibility to the state and thus to the taxpayers.  The editorial states that if the taxpayers of Oklahoma don’t have $20 million to seed the fund with, then the law will not go into effect.  Big business must have some good lobbyists up in Joklahoma, becuase I can’t imagine how a legislator is going to explain this one to his constituents.

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