AAJ criticizes firms' attempts to curtail consumers' access to legal system

by Gary M. Paul

On Wednesday, Speaker John Boehner (R-Ohio) addressed the U.S. Chamber of Commerce and its Institute for Legal Reform — the leading front group for multinational corporations seeking to limit Americans’ access to the courts.

And in its typical self-serving fashion, ILR has seized on the hardships of millions of unemployed Americans, claiming that this country needs “jobs, not lawsuits,” despite no actual evidence to bolster its nonsensical claims.

ILR’s board members run the gamut of industries — from chemical makers and drug companies to Wall Street banks. And they have more in common than just their commitment to closing the courthouse door on injured Americans. The corporations that finance ILR have long, storied histories of using the courts for their own agendas — to gain the upper hand against their competitors, customers and even each other.

One ILR board member, Caterpillar Inc., sued the Walt Disney Co. because it felt the depiction of bulldozers in the straight-to-video movie “George of the Jungle 2” was overly villainous. FedEx Corp., another stalwart board member, took a “stand for justice” by suing a man for making a chair out of FedEx boxes. Johnson & Johnson used the civil justice system to take on a most unlikely foe — the Red Cross.

These corporations certainly have the right to seek justice through the legal system. What makes their actions shameful is that they are members of ILR’s board for the sole purpose of denying American workers and consumers that very same right. This ultimate hypocrisy not only undermines that ridiculous jobs argument but also highlights their real motivations: obtaining immunity when they injure or kill American workers and consumers.

Every company that holds a seat on ILR’s board or participates as a member stands to gain monetarily from the organization’s agenda of blocking the courthouse doors. For instance, in return for being an ILR board member, Honeywell International has received lobbying and public relations help when its negligence has been uncovered. Days after an Illinois jury delivered a multimillion-dollar verdict against Honeywell for conspiring to hide the dangers of asbestos, the Madison County Record, an Illinois-based propaganda-as-news outlet fully owned by ILR, featured an opinion piece headlined, “McLean County Continues Inching Closer to Becoming a ‘Judicial Hellhole.’”

America’s civil justice system gives people a fair chance to hold wrongdoers accountable. The civil justice system has uncovered countless examples of corporate negligence, and as a result, things we take for granted — whether it is cars, medicines or the workplace — are all safer. Our legal system also serves as a powerful deterrent, making corporations think twice before putting profits ahead of people. Thousands of lives are saved because the civil justice system gives corporations the needed incentive to make better products, instead of ones that are cheaper but more dangerous.

When faced with abusive corporate practices, the courts are often the last resort for everyday Americans to seek justice. ILR board members know a jury verdict is one of the few things they cannot buy and control, but with ILR’s assistance, they have found a willing partner to simply whine to Congress for more immunity instead.

We cannot allow self-serving corporations — let alone their front groups — to just slap a “jobs creation” sticker on legislation that has absolutely nothing to do with jobs, in order to finally check off items on their wish list. There is a difference between providing incentives to employers to hire more workers and giving handouts to corporations that simply want to skirt the law and avoid accountability. While we doubt the chamber will ever learn the difference, we certainly hope lawmakers will.

__________
source: Roll Call (Paul, 10/26)

Experts: Smoke from Waxahachie fire may be threat, despite early discounting of toxic risk

Early results from air monitoring around Monday’s chemical plant fire in Waxahachie showed no elevated levels of toxic chemicals in the thick, black smoke, the Environmental Protection Agency said.

Other experts, however, still warned of potential hazards as the fire continued to smolder.
Details of what happened were sketchy, but experts said the smoke plume from a Magnablend Inc. plant appeared to come from an oil-based substance and not just from the industrial chemicals reportedly at the facility.

An explosion of unknown origin just before 11 a.m. triggered a fire at the plant, at 1601 W. U.S. Highway 287.

Experts were able to pinpoint the dangers that typically surround a chemical fire accompanied by large volumes of dark smoke.

Kuruvilla John, a chemical engineer and air-quality specialist at the University of North Texas in Denton, said any such fire would produce high amounts of soot and carbon, which can cause breathing problems.

Other hazards are possible, based on what materials are burning, John said. The Ellis County company makes a range of chemicals for oil and gas producers, including some used in hydraulic fracturing, or fracking, of new gas wells. It also serves other industries.

Crews from the EPA and the Texas Commission on Environmental Quality set up air-monitoring equipment on the ground. The EPA also flew a plane equipped with pollution monitors through the smoke plume several times but did not detect elevated levels of toxic chemicals, the EPA said.

Local officials ordered evacuations around the plant because the chemicals reportedly at the facility are highly hazardous and because any smoke is harmful, regardless of what it contains.

TCEQ spokeswoman Lisa Wheeler said Magnablend uses ammonia and sulfuric, hydrochloric, nitric and phosphoric acids to blend chemicals.

The chemicals are toxic, corrosive and strong irritants that can burn even when not on fire. Inhaling or ingesting them or absorbing them through the skin can be fatal in high doses, but there were no indications Monday of how much was in the air.

Magnablend’s website said its products for the oilfield industry include chemicals used in fracking new oil and gas wells.

Companies force water, chemicals and other materials underground at extremely high pressure to fracture shale formations and release trapped gas.

The company also blends chemicals for agriculture and other industries. Texas and federal officials said the company did not have a history of environmental violations.

John said TV video of the fire and smoke suggested that more was burning than just the chemicals. The amount and appearance of the smoke pointed to building materials, plastics and possibly other flammable substances from nearby storage tanks and rail cars, he said.

Tracking by the National Oceanic and Atmospheric Administration showed that the smoke was lofting to a high altitude, meaning it could remain in the North Texas atmosphere for days, John said.

Readings in urban North Texas did not show elevated levels of particulate matter, largely soot, in the air, John said.

Texas Tech University toxicologist Ronald J. Kendall agreed that more sources than the chemicals reportedly at the plant were involved in the fire.

He said the smoke appeared to come from a burning petroleum substance and warned that such fires create highly toxic polyaromatic hydrocarbons.

“I would particularly be concerned about PAHs,” Kendall said. “Combustion of hydraulic fluids and other oil-based substances, which to a large part is creating the dark black smoke from the large fire in Waxahachie, could also be liberating toxic chemicals into the air.”

Kendall said anyone near the plant should take precautions, closing up houses and cars, protecting pets and other animals and possibly leaving the area.

“Great care should be implemented to avoid breathing the smoke,” he said. Mangablend filed a required risk-management plan with the EPA in 2009 that covers emergency planning and contains details of high-hazard chemicals onsite.

However, there were questions Monday about whether the company had filed a risk-management plan for the facility that burned. The address on the plan in EPA files is 100 W. Sterrett Road in Waxahachie, a different location.

EPA spokesman David Bary confirmed the discrepancy between the addresses. The EPA was checking to resolve the question.

______________
source: Dallas Morning News (Loftis, 10/3)


If you or a loved one is suffering from nausea, headaches, sore throat, difficulty breathing, or blurry vision, that you believe are a direct result of the Magnablend Chemical Fire of October 3rd, and have not yet consulted a physician, please contact The Cole Legal Group toll free at 800-245-5539. You may also use the contact form on our website for a free consultation.

Pediatrics group warns against crib bumper pads

Academy updates policy, says popular bedding item can cause babies to suffocate

Many parents will soon hear from their pediatricians that bumper pads should not be used in cribs because babies can suffocate against or be strangled by the popular bedding product.

The American Academy of Pediatrics set the guideline for its physicians as part of updated policies to create safer sleep environments for babies and reduce the risk of sudden infant death syndrome, or SIDS.

By stating that bumper pads should not be used, the Elk Grove Village-based academy is providing direction to members on a question still being hotly debated.

The trade group for makers and sellers of infant bedding says bumper pads, which wrap around the inside of a crib and tie to crib slats, help prevent head injuries and limb entrapment. It also disputes there is evidence that the products can cause babies to suffocate.

But the academy's new guidelines state there is no evidence that bumper pads prevent injuries and say they pose a potential risk of suffocation, strangulation and entrapment.

"We weighed the pros and cons and the evidence, and felt that the safest thing would be to keep bumpers out of the crib altogether," said Dr. Fern R. Hauck, a member of the academy's SIDS task force and a professor of family medicine at the University of Virginia.

Investigations by the Tribune this year and last year found that federal regulators with the Consumer Product Safety Commission have gotten reports for years of babies suffocating against bumper pads, yet they have failed to warn parents or investigate all the deaths.

The regulators have hesitated to take a stance on the safety of bumper pads, saying they are trying to determine if there is a scientific link between bumper pads and suffocation, or if blankets, pillows or medical issues played a primary role in the babies' deaths.

In response to the Tribune's stories, the city of Chicago and state of Maryland recently prohibited sales of crib bumpers, often packaged as part of bedding sets.

The Juvenile Products Manufacturers Association, meanwhile, launched a campaign arguing that bumpers are not a significant risk factor for infant death when used properly, while also warning parents not to use bumpers that are too puffy.

Bumpers were originally made to cover spaces between crib slats that were too far apart. Regulations changed in the 1970s, mandating that slats be spaced closely enough that babies wouldn't fall out or get their heads caught. But the products are still widely sold.

Every five years the pediatrics academy updates its official policies, which serve as a guide to pediatricians and other medical professionals throughout the country. Previously, the policies stated that if crib bumpers were used, they should be thin, firm, well secured and not "pillow-like" — a vague term that irked safe-sleep experts and SIDS groups.

"It was just confusing," said Nancy Cowles, director of Kids in Danger, a safety advocacy group. "I think this clarifies things — bare is best."

In a statement, the academy said that although the number of deaths associated with sudden infant death syndrome has declined in the last two decades, sleep-related deaths from suffocation, entrapment and asphyxia have increased.

Besides stating that bumper pads should not be used, the group also recommended that babies always sleep on a firm surface, not in car seats or other products that babies sit in. Wedges and positioners shouldn't be used, and the policies recommend breast-feeding and immunizations to reduce SIDS deaths.

Cowles and other safe-sleep experts often promote the "ABCs" of safe sleep — babies should sleep alone, on their backs and in a crib. Infants can lack the motor skills and strength to turn their heads if they roll against something that blocks their breathing.

Dr. Michael Goodstein, a member of the academy's task force and a neonatologist at York Hospital in Pennsylvania, said parents who remove bumpers from cribs should not add other soft bedding like pillows or blankets instead.

"Soft is just bad," he said.

In March, the Tribune reported that federal officials have investigated at least a dozen deaths where bumpers appeared to play a role. In those fatalities, the Consumer Product Safety Commission said bumpers were not clearly the culprit because other items were also in the crib. But in reviewing the agency's own records, the Tribune found that in many of those cases, babies who died were found with their faces pressed into bumper pads.

The Tribune also found at least 17 additional cases in which the safety agency did not investigate a child's death even though the agency had reports on file suggesting bumper pads played roles in the fatalities. The Tribune looked into some of the cases and found that medical examiners and coroners said bumper pads were involved in the suffocations.

________
source: chicagotribune.com (Gabler, 10/18)

Magnablend Chemical Fire October 3, 2011

Exposure to toxic chemicals may have long lasting and serious effects. Exposure may occur by direct contact with the skin, breathing in the chemicals as fumes or by ingesting toxins by mouth.

Dangerous chemicals can be released because they are mishandled in manufacturing plants, are not safely loaded for transport or because the companies responsible for the chemicals fail to follow their own procedures or statutory requirements.

The types of injuries that result may differ depending on the type of chemical involved as well as the duration of the exposure (direct contact, breathing in the chemical or ingesting it by mouth).

If you believe that you or a loved one has been injured because of exposure to toxic chemicals and you would like to know about your legal rights, we would be glad to speak with you. Please contact us at 972-923-2222 or toll free at 877-942-4537. The Cole Legal Group wants to help you get the money you deserve for your injuries.

Texas' tort law has failed to reduce health costs, attract doctors

A national report released Wednesday says the 2003 Texas law that limited damage awards in malpractice suits has caused health care spending to rise and has not significantly increased the number of doctors in Texas.

The report comes as Gov. Rick Perry has touted the benefits of the law on the presidential campaign trail, boasting that it has added 21,000 Texas doctors — a claim the report disputes. Supporters of the law also urged Congress to enact a similar provision for the nation as part of the federal health care law that passed in March 2010. That provision was not included.

The 24-page report by Public Citizen, "A Failed Experiment," says that using Texas as a model would benefit doctors and insurers — not residents.

The report claims that Medicare spending in Texas has risen faster than the national average, and so have private health insurance premiums. It also says that, contrary to Perry's claims, the per capita increase in the number of doctors practicing in the state has been much slower since the state passed the so-called tort reform law than it was before the law.

Organizations that support the 2003 law — the Texas Medical Association and the Texas Alliance for Patient Access — disputed the report's assertions on the number of physicians who have come to the state. As for health care costs, "we never said consumer costs would go down," Jon Opelt, the alliance's executive director, said Wednesday.

Before the state limited damage awards that patients and their families could collect in malpractice cases, doctors were leaving the state in droves, and malpractice insurance rates were about double what they are today for most doctors, said Dr. Howard Marcus, an internist at Austin Regional Clinic. Marcus, a member of the medical association and chairman of the alliance, said that it took several years for tort reform to have an effect and that since 2007, Texas has licensed 60 percent more new doctors each year than it did before tort reform.

The report by Public Citizen, a nonprofit consumer advocacy group, examines the number of direct patient care and primary care doctors in Texas between 1996 and 2010. It says that in the seven years before the lawsuit limits, the per capita number of doctors increased by 9.3 percent. In the seven subsequent years, the increase was 4.2 percent.

Perry's 21,000 figure was disputed by a PolitiFact check, which Public Citizen cited. PolitiFact said that Perry was counting all physicians licensed in Texas — the number actually practicing was 12,788 — since 2003. Experts said most of that increase was due to population growth, not tort reform.

Marcus said that Public Citizen erred by using a seven-year range before and after the 2003 law took effect. He said that it took until about 2007 for the law's effects to be felt, adding that it would be better to examine 2007 to 2011 and compare those years with the period before the tort changes.

Perry spokeswoman Allison Castle said Wednesday that tort reform has greatly expanded access to care, especially in underserved rural areas. For example, she said, the number of obstetricians in rural areas of Texas has grown by 27 percent.

Castle added that from 2003 to 2009, Texas premiums for employer-sponsored health coverage increased at a lower rate than the national average and 27 other states.

The Public Citizen report counters that doctors in rural areas of Texas have decreased by 1 percent since tort reform after increasing by 23.9 percent in the seven years before the 2003 law.

It also says that health care coverage is unaffordable to more Texans since the law took effect. In 2010, 24.6 percent of Texans were uninsured — the highest rate in the nation — compared with 23.6 percent in 2003.

Regarding Medicare costs, the Public Citizen report says that proponents of lawsuit limits say that doctors would order fewer tests and practice less "defensive medicine" if they didn't have to fear as many lawsuits. "In fact," the report says, "Medicare diagnostic testing expenditures in Texas not only increased during this time frame (2003 to 2007), but rose 25.6 percent faster than the national average."

Marcus and Opelt said many factors drive such costs and that they have no bearing on changes in the medical malpractice law.

______________
source: www.statesman.com (Roser, 10/12)

Dallas Court of Appeals: Torts: Jensen v. Southwest Rodeo L.P.

Tx. App. Dist. 5
Joseph B. Morris Justice
05-10-00596-CV
09-29-2011


OPINION

Before Justices Morris, FitzGerald, and Francis

Opinion By Justice Morris


In this premises liability case, appellant Bob Jensen challenges the trial court's summary judgment in favor of Southwest Rodeo, L.P. Jensen brings two issues contending the trial court erred in concluding he had no right to recover from Southwest Rodeo for his personal injuries. Because we conclude Southwest Rodeo owed no duty to Jensen, we affirm the trial court's judgment.

I.

Southwest Rodeo, L.P. owns an arena and events center located in Mesquite, Texas. On October 21, 2003, Bob Jensen, acting on behalf of the Hella Shrine Temple, signed a lease agreement with Southwest Rodeo to use the arena facilities for a Hella Shrine circus. During one of the circus performances, Jensen tripped and fell on the arena stairs. Jensen filed suit against Southwest Rodeo alleging claims for negligence and premises liability.

Southwest Rodeo filed a motion for summary judgment asserting three grounds to defeat Jensen's claims as a matter of law. First, Southwest Rodeo argued Jensen's claims must fail because Southwest Rodeo, as lessor, owed no duty to the Temple or the Temple's invitees for the conditions of the leased premises. In the alternative, Southwest Rodeo argued that Jensen's claims must fail because he was a licensee with knowledge of the alleged dangerous condition. Finally, Southwest Rodeo argued that Jensen could not recover under a separate negligence theory because his injury was alleged to be the result of a premises defect and not any contemporaneous negligent activity. Following a hearing on the motion, the trial court held that Southwest Rodeo owed no duty to Jensen and ordered that Jensen take nothing by his claims. Jensen brought this appeal. II.

In his first issue, Jensen contends the trial court erred in granting summary judgment against him because he raised a fact issue about whether Southwest Rodeo owed him a duty of reasonable care. Our review of a traditional summary judgment is well settled. We consider all of the evidence in the light most favorable to the non-movant to determine whether the movant has shown that no material fact issue exists and it is entitled to judgment as a matter of law. See Carbonara v. Tex. Stadium Corp., 244 S.W.3d 651, 654 (Tex. App.-Dallas 2008, no pet.). A defendant is entitled to summary judgment if it conclusively negates at least one element of the plaintiff's cause of action or conclusively establishes all of the elements of an affirmative defense. See Johnson Cnty. Sheriff's Posse, Inc. v. Endsley, 926 S.W.2d 284 , 285 (Tex. 1996). If the motion and summary judgment evidence facially establish a right to judgment as a matter of law, the burden shifts to the non-movant to raise a genuine issue of material fact sufficient to defeat summary judgment. See Transcontinental Ins. Co. v. Briggs Equip. Trust, 321 S.W.3d 685 , 691 (Tex. App.-Houston [14th Dist.] 2010, no pet.).

Southwest Rodeo moved for summary judgment on the ground that it owed no duty to Jensen as a matter of law. It has long been recognized that a lessor generally owes no duty to a tenant or its invitees for dangerous conditions on the leased premises. See Endsley, 926 S.W.2d at 285. The tenant takes the property as he finds it and assumes the risk of apparent defects. See Flynn v. Pan American Hotel Co., 183 S.W.2d 446 , 448 (Tex. 1944). Jensen concedes that this rule, if applicable, relieves Southwest Rodeo of liability for his injuries. *fn1 He argues, however, that the Texas Supreme Court has recognized several exceptions to this general rule and it is on one of these exceptions that he relies to assert that Southwest Rodeo was not entitled to summary judgment.

The exception upon which Jensen relies is that a lessor may be liable for injuries caused by a defect on a portion of the premises that remains under the lessor's control. See Endsley, 926 S.W.2d at 285. Jensen contends that, although he fell in the arena area that was leased by the Temple, he presented sufficient summary judgment evidence to create a fact issue about whether Southwest Rodeo retained a right to control the portion of the premises in which he fell. We disagree.

The retained-control exception is generally applied to common areas maintained by the landlord for the use and benefit of multiple tenants or the public. See Palermo v. Bolivar Yacht Basin, Inc., 84 S.W.3d 746, 750 (Tex. App.-Houston [1st Dist.] 2002, no pet.). The rationale of the common area cases is that because no individual tenant controls the common area, the landlord remains in control. Id. It is undisputed in this case that Jensen fell in an area of the arena that was leased to the Temple and that the Temple was the sole lessee. Accordingly, the common area rationale does not apply.

Jensen contends the evidence shows Southwest Rodeo maintained sufficient control over the area made the subject of the lease to raise a fact issue on the retained-control exception. Jensen relies heavily on this Court's opinion in City of Irving v. Seppy. See City of Irving v. Seppy, 301 S.W.3d 435 (Tex. App.-Dallas 2009, no pet.). In Seppy, we addressed whether the City owed a duty of care to an invitee of a community theater group that contracted with the City to use a performing arts center. Based on the evidence presented, we concluded the plaintiff raised a material fact question about the City's control over the premises. Id. at 446. The facts presented in Seppy and the facts presented here are materially different in several important respects. First, we noted in Seppy that we were making no determination about whether the agreement between the parties constituted a lease creating a landlord-tenant relationship. Here, the parties do not dispute that the contract at issue is a lease agreement.

Next, the evidence in Seppy showed the City provided maintenance, repair, and cleaning for the premises at issue. In contrast, the lease agreement between Southwest Rodeo and the Temple required the Temple to return the facilities in "good condition and repair" at the end of the lease term. This contractual requirement placed the responsibility for maintenance, repair, and cleaning on the Temple, not Southwest Rodeo, during the term of the lease. The fact that Southwest Rodeo required maintenance to be performed shows only its intent to protect its interest in the property and not a retention of control over the property during the lease term. See Flynn, 183 S.W.2d at 449-50. Finally, the evidence in Seppy showed that the City controlled the theater group's access to the premises at issue. The contract between the City and the theater group specified what times of day the doors would be opened and closed. Although the contract between Southwest Rodeo and the Temple specified what times of day the Temple was contracting to use the leased premises, Jensen provided no evidence to show that Southwest Rodeo retained the right to control the Temple's access to the premises. If the Temple used the premises during a time of day not specified in the lease, they were merely subjected to additional charges. The usage schedule was not a retention of control but a means of defining the amount of usage fees to be charged. For these reasons, we conclude Seppy is inapposite.

Jensen also points to a provision of the lease agreement that permits the general manager of Southwest Rodeo, or his representative, a right of access to the premises during the lease term for matters connected with the facilities. The reservation of a right to re-entry, however, does not amount to a retention of control. See Shell Oil Co. v. Khan, 138 S.W.3d 288, 297 (Tex. 2004); Daitch v. Mid-America Apartment Cmtys., Inc., 250 S.W.3d 191, 195 (Tex. App.-Dallas 2008, no pet.). The critical issue is who had the right of possession of the premises and not merely the right of access. See Daitch, 250 S.W.3d at 195.

Finally, Jensen argues that the evidence shows Southwest Rodeo retained a right of control over the premises because the lease contract limited the manner in which the premises could be used and deposition testimony showed that Southwest Rodeo placed its employees on the premises as ushers. The lease agreement limits the Temple's use of the premises to only those purposes for which it specified it sought to lease the facility. The lease further requires the Temple to abide by the law and certain safety precautions such as not exceeding the maximum seating capacity and not blocking passageways including aisles, halls, and stairwells. Any radio or television broadcasts could not be done without Southwest Rodeo's written consent. Southwest Rodeo's general manager testified that his company placed ushers in the arena during events so that if an accident occurred, the ushers would be there to assist. These general requirements, much like the requirement that the premises be kept in good repair, are intended to protect the lessor's interests. They do not evidence an intent to control either the premises or the details of the lessee's use of the facility. Cf. Exxon v. Tidwell, 867 S.W.2d 19 , 21-22 (Tex. 1993). The control necessary to impose a duty of care is physical control of the property or the intention to occupy or possess the property. See De Leon v. Creely, 972 S.W.2d 808, 812 (Tex. App.-Corpus Christi 1998, no pet.). Jensen presented no evidence that would raise a fact question about Southwest Rodeo's physical control of the premises at issue or its intention to occupy or possess the premises during the lease period.


Based on the foregoing, we conclude Jensen failed to raise a genuine issue of material fact that would preclude summary judgment in favor of Southwest Rodeo on the ground it owed no duty to Jensen. Because we have resolved Jensen's first issue against him, it is unnecessary for us to address Jensen's second issue.

We affirm the trial court's summary judgment.

---

Opinion Footnotes

---

*fn1 Jensen does not challenge the summary judgment on his separate claim for negligence.

____________
source: www.law.com (10/11)

Texas Roadhouse sought 'young, hot' employees, lawsuit says

Older applicants for positions at the Texas Roadhouse restaurant chain were allegedly rejected in favor of much younger employees, according to claims in a lawsuit from the U.S. Equal Employment Opportunity Commission.

Hiring managers at the Kentucky-based steakhouse company allegedly told jobseekers ages 40 and older that “we need the young, hot ones who are ‘chipper’ and stuff” and that they were “basically looking for young teenagers,” according to the complaint.

Since 2007, some applicants were told that they “seem older to be applying for this job” and that “there are younger people here who can grow with the company,” according to the suit.

Training and employment manuals exclusively featured images of young people and youth was emphasized to hiring managers, the suit alleges.

Fewer than 2% of the chain’s so-called front of the house employees –- visible workers such as servers, hosts, greeters and bartenders –- fall into older age groups, according to the complaint. Texas Roadhouse has four locations in California, with another opening by the end of the year.

The suit seeks new hiring policies and monetary relief for applicants denied employment because of their age. Older workers are among the hardest hit by the recession.

_____________
source: LA Times (Hsu, 10/5)