Paralyzed couple home for first time

Home for Christmas

DERBY, Kan. — Chuck Powell inched his wheelchair out of a specially equipped van, guided by his brother-in-law.

His chair made contact with the driveway of his house, and Chuck slowly spun around to see colorful "Welcome Home" banners hanging from the top of the open garage.

Then his wife, Marilyn, backed her electric wheelchair down the van's ramp.They turned to each other and took deep, shaky breaths.

"We're home, honey," Chuck told his best friend of 45 years. "We are home."
They held hands and cried. On Wednesday, the Powells spent the night at home for the first time since a February crash that paralyzed both of them from the chest down.

Feb. 17 was a nice day. The high in Wichita reached 78. Marilyn visited Chuck for lunch at his workplace in Wichita. They decided they'd go for a ride that evening on their 1500 Honda Gold Wing. They left their house between Rose Hill and Derby and rode for a while before heading to Douglass for dinner. Somewhere near Leon, Chuck turned on a paved road. The motorcycle that's taken them on so many fun trips hit a patch of sand put down to prevent winter accidents.

"We don't remember much, but we went off the side of the road," Marilyn said. "That's the last thing we remember until we went to St. Francis." Chuck and Marilyn, both 63, suffered identical spinal cord injuries in the crash. Marilyn also broke her left elbow, both wrists and a hip. Chuck fractured his right wrist and broke his neck, which surgery repaired.

Avid motorcyclists for years, they were wearing full riding gear that night — helmets, boots, gloves, chaps, the works. Their helmets stayed on during the crash. Chuck said they always wore the best helmets money could buy.

Luckily, Marilyn said, someone drove by fairly quickly. Chuck was in a coma for several weeks. When he gained consciousness, he learned he and his wife couldn't walk. "It was a hard thing to hear, that you're paralyzed, but after that settles in, you've got to settle for what you've got," Chuck said. Marilyn remembers when she woke up in an intensive-care unit. She started moving around. She discovered her legs didn't work.

"I wasn't able to talk yet, so I mouthed that I couldn't move," she remembered. "That was scary, when you realize what's happened." But with her husband in the same shape, Marilyn decided, "This is not going to get me down." At a time when many marriages don't last four or five years, let alone 45, Marilyn Powell said, "We've been pretty lucky. We've had a great marriage. We've done of a lot of things together. We work together and play together."

Sharon Archer, the Powells' neighbor for 33 years, said that whenever Chuck and Marilyn went somewhere in their truck, Marilyn would sit as close to her husband as she could, much like she would have dragging Main Street as a teenager. "It's always like they're on their first date," Archer said. "They keep each other going. If they didn't have each other to fight for, I don't think they'd be this strong. She's just a small-town girl who stands by her man."

Marilyn said Chuck felt guilty at first about the accident because he had been driving. But Marilyn told him, "I wanted to go for a ride that night." "Everything you do, you run a risk," she said matter-of-factly.

While Chuck and Marilyn recuperated and learned how to live in wheelchairs, their family, friends and neighbors got to work, too. They made sure the Powells had a ramp to use. They widened doorways, moved furniture so that two people in wheelchairs could get around. They took out a closet to enlarge and remodel the Powells' bathroom, putting in a shower that they can roll into on their chairs.
The bathroom has light blue walls. Marilyn and Chuck saw it for the first time Wednesday.

Friends took off cabinet doors and moved things around in the kitchen so Marilyn and Chuck could reach them. A shop teacher Marilyn worked with at Rose Hill schools made custom wooden tools she can use to open the oven door and the washer and dryer lids. Marilyn's former co-workers at the school's cafeteria cooked up a storm, providing the couple with meals for the near future.
"You ready for this?" friend Ellen Dyer asked Chuck and Marilyn when they arrived home from the hospital, accompanied by Marilyn's sister, Carolyn Foster, and her brother-in-law, Les.

The Dyers travel the country in an RV. They met the Powells years ago through motorcycling and stay at their house for a month or so two times a year. They've tried to pay the Powells for letting them use their land and hook up to utilities, Archer said, but the Powells always have said "no." When the Dyers learned of the accident, they were in Texas. Stan Dyer left for Kansas the next day. The Dyers have paid for much of the materials to make the Powells' home accessible, Archer said. Archer said she and her husband, Craig, have pitched in here and there.

Friends from the Powells' Gold Wing Road Riders group also labored to get the house ready. Marilyn and Chuck said the words "thank you" don't seem enough. "We didn't realize that we had so many friends," Chuck said, breaking down in tears.

The Powells plan to live independently. As they navigate their new lives, a nurse will stop by twice a day, in the morning to help them get out of bed and ready for the day and at night to get ready for bed.

They'll continue with physical therapy. They were excited to be home last week, but they also were nervous about living outside a hospital where the patients are just like them. But Marilyn was proud of something she accomplished on her own the day she came home. "They were going to help me wash my hair today, but I did it myself," she told her friends.

Wanda Russell, a registered nurse at the rehabilitation hospital, helped Marilyn curl her hair. Doing that by herself is one of Marilyn's goals. Staff at the hospital said they didn't remember ever caring for a couple paralyzed from the same spinal cord injuries. "I've been doing this work for 30 years, and it's the first time I've come across it," said case manager Barney Hoss.

Marilyn said Chuck knows what she's gone through, and she understands what he's gone through. They've always been close, she said, but the accident probably has made them even closer.

Their bedroom now is in what was the living room of their house. Two twin hospital beds have been pushed together so the Powells can sleep next to each other. The beds were donated through the hospital by former Wichita State University baseball player Carl Hall, a former Shocker baseball star who was paralyzed in an accident last year.

The staff worked hard to help them get out of the hospital by Christmas, he said.
"I think Chuck said that's the best Christmas present he's ever had," Hoss said. "It's a Christmas present for us, too."

SOURCE: The Republic

Nissan Recalls 28,000 Jukes and 34,000 Sentras for Possible Stalling Problems

In two actions, Nissan is recalling about 62,000 vehicles for stalling problems, the automaker told the National Highway Traffic Safety Administration.

Nissan said that 28,000 Jukes from the 2011 model year were being recalled because a defective weld could allow the turbocharger boost-sensor bracket to break. That could cause an idling engine to stall. Nissan said the engine shouldn’t stall when the vehicle was under way.

The automaker told the safety agency that it first learned of the possible problem in November 2010, but its investigation and monitoring of what it called field data didn’t suggest that a recall was needed until earlier this month.

Meanwhile, almost 34,000 Sentras are being recalled because the zinc coating on the battery-cable harness is thicker than specified. This could cause a voltage drop that could damage the electronic control module, causing the engine to stall and making it impossible to restart, the automaker said.

Nissan told the agency that it began investigating the problem last February and recently concluded that a recall was necessary.

A Nissan spokesman could not be reached to confirm whether either condition had resulted in accidents.

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source: New York Times (Jensen, 12/16)

$36 million settlement closes out lawsuit in NY bus-trailer crash that killed 4 in 2005

ROCHESTER, N.Y. — The owners of a Canadian charter bus and a tractor-trailer are paying $36 million to settle a lawsuit over a 2005 highway collision in western New York that killed four people and injured 19, attorneys said Wednesday.

The settlement with Coach Canada and two Pennsylvania trucking firms heads off a string of trials that were set to begin this month.

The bus was carrying a Canadian youth hockey team from Windsor, Ontario, when it swerved off Interstate 390 about 30 miles south of Rochester and slammed into the truck parked on the side of the highway on Jan. 29, 2005.

Killed were Richard Edwards, 46, who coached the Windsor Wildcats women’s hockey team; his 13-year-old son, Brian; and a third passenger, Catherine Roach, 50. Truck driver Ernest Zeiset Jr., 42, also died.

All the other 19 bus passengers suffered injuries, which ranged from broken bones to brain trauma and post-traumatic stress disorder. They included the coach’s wife, Sheila, and their daughter, Kelly, a player on a team of women ranging in age from 19 to 21.

Two insurers for Coach Canada are paying $22.5 million — almost two-thirds of the settlement — and three insurers for truck operator J & J Hauling Inc. of York Springs, Pa., and trailer owner Verdelli Farms of Harrisburg, Pa., are contributing $13.5 million, said Glenn Pezzulo, an attorney for the tractor and trailer companies.

“There was going to be one trial after another until they were all done,” Pezzulo said, starting with a Dec. 6 trial for Traci Butler, the team’s assistant coach. Court papers noted she suffered a brain injury, broke several bones and became partially deaf.

While police suspected fatigue and inexperience led to the crash, 24-year-old bus driver Ryan Comfort escaped criminal charges. He had driven for the bus company for two months.

Witnesses said he was driving erratically before the crash, but a grand jury declined to indict him. He pleaded guilty to a logbook violation and a traffic violation of failing to stay in the proper lane and was fined $300.

The bus was chartered in Windsor by the hockey team and was traveling to a ski resort when the crash occurred at dusk.

Authorities alleged Comfort lied about the hours he worked in another job during the three days before the crash and failed to report in the driver’s log book that he drove team members around Rochester in the six hours before they embarked on the ski trip. Commercial drivers are required to maintain accurate logs of their work hours and break times.

Comfort told police the bus “acted as though it struck something in the roadway, which caused it to veer to the right. ... I did not fall asleep at the wheel, nor was I influenced by any drugs or alcohol.”

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source: Washington Post (AP, 12/14)



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GM says 'couple dozen' Volt owners seek repurchase after fire tests

Crash testing of Chevy Volt

General Motors Co. said Monday a "couple dozen" Chevrolet Volt owners have asked the Detroit automaker to repurchase their extended-range electric vehicles in the face of a federal safety investigation into fires after crash-testing.

GM spokesman Greg Martin said the company was talking to owners about their concerns. He reiterated that the company will buy back the vehicles if customers aren't happy. He also emphasized the Volt is safe.

"Our actions will be guided by our customers' satisfaction," Martin said.

The company is working with Volt owners individually to understand their concerns. GM's preference is to give Volt owners loaner vehicles until the National Highway Traffic Safety Administration completes its investigation.

"We continue to find Volt owners by and large some of the most intensely loyal customers in the industry," Martin said.

"For those few who have requested repurchase, we're going to move fast" if their concerns can't be met any other way, he added.

On May 12, NHTSA crash tested a Chevy Volt in a side-collision impact in Wisconsin. The Volt battery caught fire three weeks later. NHTSA said the fire was caused by damage to the vehicle's lithium-ion battery pack and a coolant line that was ruptured.

As a result of that fire, NHTSA conducted tests on three more Volt battery packs last month at a Defense Department facility in Hampton Roads, Va. The tests intentionally damaged the Volts' lithium-ion battery packs and ruptured the vehicle coolant line.

One of those tests sparked a fire seven days after the test on Thanksgiving. Another of the tests resulted in smoke and sparking that lasted less than a second.

GM and NHTSA both say they have no complaints or reports of fires tied to real-world Volts. NHTSA's preliminary investigation could take six months or more.

More than 230 Volt owners, including former Michigan Gov. Jennifer Granholm, have signed an open letter defending the vehicle.

"We are keeping the keys to our Volts. We love our Volts and we feel safe driving our Volts," the owners wrote. "Volt owners feel assured knowing that government and industry are working together to define and communicate this process for electric vehicles, just as they have done for gasoline-powered cars in years past."

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source: Detroit News (Shepardson, 12/5)

An idea to tackle tort reform, defensive medicine in Georgia

It’s been 20 months since the Georgia Supreme Court threw out a key plank of the state’s 2005 tort reform: a $350,000 cap on noneconomic damages for medical malpractice. During that time there’s been some hopeful talk among supporters of the cap, but precious little action by legislators.

Here’s a thought: Why not scrap the medical tort system entirely, saving several billion dollars in the process?

Before every trial lawyer within 200 miles heads for my office, let me explain.

The idea is to replace the current legal system for medical malpractice with an administrative law system that draws heavily on the current arrangement for workers compensation claims.

No more lawsuits, no more juries, no more jackpot justice. Instead, patients injured while undergoing medical treatment would file a no-fault claim. Independent experts then would determine whether there was negligence and, if so, award the patient compensation based on national norms for the type of injury suffered.

The potential results: More patients receiving payments, in a fraction of the time lawsuits take today. Doctors no longer facing the specter of ruinous lawsuits. Even trial lawyers would stand to make more money on the whole.

“Our approach is basically fair compensation — quickly, and more of it,” says Richard L. Jackson, who is pushing this plan through his advocacy group called, well, Patients for Fair Compensation.

The group’s name is straightforward enough, except that Jackson isn’t only or mostly a patient. He’s a longtime health-care executive whose Alpharetta-based medical-staffing company, Jackson Healthcare, employs doctors in all 50 states.

Nor did he come at the issue of tort reform only or mostly from a legal perspective. Rather, his interest is reducing the practice of “defensive medicine” by doctors eager to avoid lawsuits.

During the 2008 presidential primaries, Jackson told me by phone this week, his firm surveyed its doctors about various candidates’ health reform plans. “What happened,” he said, “was we kept hearing the defensive medicine issue being a huge problem. We didn’t ask them about it. It just came out unsolicited.”

Jackson took another survey of 3,000 doctors nationally about “totally unnecessary medicine for the purpose of avoiding a lawsuit.” A whopping 92 percent said they had practiced it in the previous 12 months, and the respondents attributed 34 percent of all health-care costs to defensive medicine.

“I was really caught off-guard by that,” Jackson said.

Last year, he hired Gallup to poll 500 doctors. A similar proportion of them said they practiced defensive medicine, to which they attributed 26 percent of health costs.

Even using that lower estimate, Jackson said, defensive medicine may account for as much as $650 billion in health spending nationally and $13.25 billion in Georgia. That’s roughly $100 a month for every American, or almost 4.5 percent of the U.S. gross domestic product.

Reducing that cost is what sparked Jackson’s interest in medical malpractice reform. But he believes it would be good for patients, too.

“Patients really don’t have access to justice in our [current] system,” Jackson said. If a claim is for less than $150,000, “you can’t find an attorney to represent you. They have to basically go for the big deals. And that’s why they’re so vehemently opposed to caps and those kinds of tort reforms, because it eliminates the ability to go after the big claims so they can fund the other ones.”

Jackson’s group is awaiting a final actuarial study, but he said he is confident that four times as many patients as today will receive some sort of compensation, which, combined, will total two to three times the current sum.

The “extra” money, as well as the funds to operate the new system, would come from existing med-mal insurance premiums, with savings from lowering costs of administration and not having to defend against lawsuits.

The next step will come soon, as Georgia and Florida are the first states where Jackson will try to get legislation passed. I’ll withhold final judgment until there’s an actual bill with actual details. For now, it’s a promising solution to a vexing problem.

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source: Atlanta Journal-Constitution (Wingfield, 12/1)

Jury awards former workers at Lear's Arlington plant more than $280,000

Three women who say they were fired by Lear Corp. for filing workers' compensation claims have been awarded more than $280,000 in lost wages and damages by a Tarrant County district court jury.

The workers, who were terminated in October 2009, plan to petition Judge Donald Cosby for an order reinstating them to their jobs.

By a 10-2 verdict, the jury sided with the claims of Phyllis Carolina, Karen Rogers and Ronda Alexander, all of whom said they suffered serious injuries while working at Lear's Arlington plant.

Carolina was awarded $124,666, Alexander, $82,814, and Rogers, $80,000.
"It was a victory for workers in corporate America's war on the middle class," said Jason Smith, a Fort Worth lawyer who represented the women.

Lear, based in suburban Detroit, manufactures seats for the sport utility vehicles produced at General Motors' Arlington assembly plant. Lear spokesman Mel Stevens said he could not comment on "any litigation until it is resolved."

Lear has had a troubled relationship in recent years with workers at the Arlington plant, who are represented by United Auto Workers Local 129. After being shut down for 11 weeks in 2009 while GM was in bankruptcy, the company and union came to a standstill in contract negotiations and the company locked out the workers for several days until the GM plant manager intervened and a settlement was reached.

More recently, Lear has outsourced some work from Arlington to one of its Mexico plants and threatened to move even more work south of the border.

Lear executives, in testimony from depositions presented during the trial, said the Arlington plant had the highest workers' compensation cost of any of its U.S. plants.

"It's a very physical job," said Smith, adding that two of the women had injured their rotator cuffs and the other had injured her neck. "They have a lot of injuries out there. [Lear] could do things better ergonomically."

Maverick Gayden, shop chairman of the union that represents Lear's more than 500 manufacturing workers, called the verdict "very good news."

Gayden said the cost of the penalties could force Lear management to pay more attention to the working conditions and the state of labor relations with its employees at the plant.

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______________
source: Fort Worth Star-Telegram (Cox, 11/5)

Analysis: Tort reform in Texas has not resolved physician shortages in some areas

PRESIDIO, Texas (AP) — Presidio County is bigger than Delaware and has just one practicing physician who doesn't deliver babies or treat emergencies. It's the kind of underserved region that Gov. Rick Perry suggested would benefit when he proposed a crackdown on medical malpractice lawsuits in 2003.

Now running for president, Perry says his tort reform plan proved the wisdom of his business-friendly policies by expanding health care across the state.

Yet none of the 23,000 doctors Perry says Texas has newly licensed have come this way.

"Some patients, when they find out they're pregnant, bam — they're out of here," said Dr. Darrell Parsons, whose practice in Presidio is just across the Rio Grande from Ojinaga, Mexico.

An analysis of Perry's tort reform initiative in Texas reveals a more complicated bottom line than his campaign rhetoric on the issue would suggest. State medical data show that the number of physicians practicing in Texas has increased since the initiative passed in 2003, though by considerably less than the total Perry cites. And the bulk of that influx has come in larger cities where health care was already abundant, leaving large rural swaths of Texas still without doctors.

In many ways, the growth in the health industry in Texas adds more fodder to a larger debate surrounding Perry's record: How effective were his conservative policies in solving problems and increasing jobs, which is the core issue of his presidential campaign? And how much of Texas' economic growth during his 11 years in office mostly reflected a state with a booming energy industry and an increasing population?

Discussing his malpractice reforms in a speech in Georgia in September, Perry said, "Pregnant women have better access to OB-GYNs. People in need of trauma care have better access to neurosurgeons and other specialists. That's what tort reform is really all about. About how to give better access to the people of my home state. We need to spread lawsuit reform across all economic sectors of this country."

However, medical records in Texas show that of the state's 254 counties, only 106 have an obstetrician/gynecologist — just six more than in 2003. In Presidio County, which has 8,000 residents and is growing, some of Parsons' patients move 240 miles away to live with relatives in Odessa or Midland when they become pregnant.

Overall, the increase in physicians in Texas roughly tracked the state's population growth. Medical rolls increased by 24 percent since 2003, while Texas' population was soaring by 20 percent during the decade. Texas also saw rapid growth of physicians per capita before tort reform, according to the Texas Department of State Health Services.

The statistic Perry most often cites — 23,000 newly licensed doctors after tort reform — includes about 10,000 who sought licenses in Texas but took jobs elsewhere and physicians practicing telemedicine in other states.

Tort reform lobbyists point to a surge in the number of doctors in some high-risk specialties like surgery and emergency room care, particularly in the growing Rio Grande Valley.

"By no means do we claim that all doctors new to Texas are because of tort reform. But we absolutely claim that the accelerated growth is because of tort reform," said Jon Opelt, executive director of the Texas Alliance for Patient Access.

Perry spokeswoman Allison Castle said tort reform ended "abusive oversuing" and played a role in Texas today having a record number of doctors per capita.

"Tort reform has resulted in better access to care, which includes more specialized care that is now available in more Texas communities thanks to these reforms, and that is absolutely a success," Castle said.

Health care shortages have plagued rural Texas for decades and few regions struggle more than West Texas. In Pecos, about a four-hour drive north of Presidio through sprawling ranchland and mountains, Mayor Venetta Seals recalled the wife of a California couple who became ill while traveling through the area earlier this year. By the time they reached the closest hospital nearly 200 miles away, the woman had died in the car.

Seals joked that the region perhaps needed signs on the Interstate informing drivers they're nowhere near a hospital. "Think about if you had a wreck, and just to get an ambulance took an hour," Seals said. "And that's one-way."

Perry made access to health care a major argument for tort reform in the initiative's advertising campaign in 2003, saying the state was hemorrhaging doctors because of lawsuits and malpractice insurance costs. The ballot issue, Proposition 12, became the most expensive campaign ever waged to amend the Texas Constitution. More than $15 million was spent in the showdown between trial lawyers and health care interests.

In a speech to the conservative Heritage Foundation that year, Perry told a New York audience how three out of five Texas counties lacked an obstetrician.

"That's a hardship for many pregnant women in certain areas of our state, but especially women with high-risk pregnancies," Perry said.

Eight years later, that ratio is the same.

In rural areas, doctors, including Parsons, nevertheless insist the lawsuit limit capping noneconomic damages at $250,000 was justified. Doctors statewide have seen their liability rates drop by an average of 27 percent, according to the Texas Medical Association. Parsons said he wouldn't have stayed in Presidio without the new caps.

"You don't have that hanging over your head," Parsons said.

Recruiting doctors in rural areas, however, is difficult. And another aspect of Texas' government philosophy — a low Medicaid reimbursement rate, ranking 49th in the nation, and sparse public spending — makes practicing in rural areas here less appealing than in other states. "Obstetricians want good education for their children and reasonable reimbursement for their services," said James Scroggs, director of health economics for the American Congress of Obstetricians and Gynecologists.

Parsons, a Kansas City native who began practicing in nearby Alpine in 1999, says it takes a "missionary spirit" to become a doctor in a place like this. And residents get used to doing without much health care.

"Out here, you get sick or hurt on Monday or Thursday. That's the day the clinic is open," said Zachary Zniewski, a carpenter in neighboring Brewster County. He looks down at his hand, which is missing a finger.

He accidentally sliced it off on a Wednesday.

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source: Associated Press (11/7)

Cain would institute tort reform, "loser-pay" laws as president

Lost in the calls throughout the past 24 hours for Herman Cain to respond to new details surrounding allegations that he sexually harassed employees during his time as president of the National Restaurant Association were a number of policy statements that in an ordinary week would have raised eyebrows among political watchers.

Perhaps most significant was Cain's suggestion in an interview Monday that China was a threat to American interests because of its attempts to develop nuclear weapons, despite the nation having been a nuclear power since the 1960s.

"They're a military threat," Cain said on PBS. "They've indicated that they're trying to develop nuclear capability and they want to develop more aircraft carriers like we have. So yes, we have to consider them a military threat."

Cain addressed the issue again Wednesday at a technology forum outside of Washington, clarifying his comments to say that the country was "testing to improve their nuclear arsenal" but maintaining that he saw the country as a major "national security threat."

Cain also suggested deploying a fleet of naval warships armed with defensive ballistic missile technology around the globe to project American power. He said that such a move would give nations like Iran pause when considering antagonizing the United States.

"This kumbaya strategy isn't working… if Iran feels frogish and wants to jump, jump - we will be able to respond effectively," Cain said.

At a health care forum on Capitol Hill later Wednesday, Cain said that he hoped to have President Obama's plan repealed by March 23, 2013 - three years to the day after Obama signed the bill into law, and, coincidentally, his son's birthday.

"I am 100 percent behind and will sign legislation as soon as it hits my desk to repeal Obamacare entirely, because it is a disaster," Cain said.

Cain also argued for tort reform and "loser-pay" laws that would punish those found to have filed frivolous lawsuits.

"Just like a judge has to impose a certain penalty for certain felonies, judges should have mandatory penalties they impose for frivolous claims," Cain said.

The Republican House members assembled seemed impressed by Cain's appearance.

"I liked what I heard, he seemed engaged on the issues of health care," Rep. Glenn Thompson (R-Pa.) said following the event.

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source: thehill.com (Sink, 11/2)

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.

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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.

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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.

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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.

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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.

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Opinion Footnotes

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

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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.

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source: LA Times (Hsu, 10/5)

Texas's loser pays law anticipated to have minimal effect

Texas Governor Rick Perry's latest plan to kick trial lawyers out of his state may not send them packing after all.

The so-called "loser pays" law that Perry has touted as he seeks the Republican nomination for U.S. president will not have a significant impact in his state, according to attorneys and legal experts. The measure has sparked interest among proponents of legal reform nationwide, though other states are not rushing to adopt similar laws.

Legal experts say the Texas law, which in certain cases makes the loser in a civil lawsuit pay the other side's legal fees, is narrowly written, and will only affect a small number of lawsuits, perhaps 5 percent of those filed in Texas.

"It's a triumph of labeling," said Walter Olson, a fellow at the libertarian Cato Institute in Washington, and an expert on legal reform. "This is not a 'loser pays' system -- not even close. It is one little slice of 'loser pays' that wouldn't have been given national attention if the label hadn't been slapped on it."

Perry, the Republican frontrunner in the 2012 presidential campaign, made the legislation an "emergency" item on his 2011 agenda as governor.

He said the law will not only reform Texas' legal system, but will also create jobs. Because they will be able to avoid "frivolous" lawsuits, employers will flock to the state to do business, he said.

But the new "loser pays" provision likely will be invoked only occasionally, only in cases dismissed from court in the early stages, said Bradley Parker, a partner at law firm Parker McDonald in Fort Worth.

Perry has boasted about the new law on the campaign trail, including at a nationally televised Republican presidential debate earlier this month when he said the measure, coupled with previous reform efforts, would go a long way to "tell the trial lawyers to get out of your state."

The law is significant, says Perry spokeswoman Allison Castle, because it "streamlines" litigation and "keeps defendants from being "dragged through months, or even years, of expensive discovery before the court can dismiss the case."

The Texas law, which went into effect on September 1, brings the state in line with other U.S. states by allowing a judge to declare an early dismissal of a lawsuit. Now, when a judge throws out a case because it has "no basis in law or fact," the court will award attorneys' fees to the prevailing party.

Alex Winslow, executive director of Texas Watch, a consumer advocacy group, said he was more concerned with another part of the law: changes to a provision that might be nicknamed "winner pays." that could discourage individuals and small businesses from bringing legitimate lawsuits against large corporations

If a plaintiff rejects a settlement offer and subsequently wins an award worth less than 80 percent of the rejected offer, the defendants can recover litigation costs out of the jury award.


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source: Reuters (Herbst, 9/28)

Deaths linked to cantaloupe could reach 16 or more; deadliest outbreak in more than a decade

WASHINGTON — Health officials say as many as 16 people have died from possible listeria illnesses traced to Colorado cantaloupes, the deadliest food outbreak in more than a decade.

The Centers for Disease Control and Prevention said Tuesday that 72 illnesses, including 13 deaths, are linked to the tainted fruit. State and local officials say they are investigating three additional deaths that may be connected.

The death toll released by the CDC Tuesday — including newly confirmed deaths in Kansas, Missouri, Nebraska and Texas — surpassed the number of deaths linked to an outbreak of salmonella in peanuts almost three years ago. Nine people died in that outbreak.

The CDC said Tuesday that they have confirmed two deaths in Texas and one death each in in Kansas, Missouri and Nebraska. Last week the CDC reported two deaths in Colorado, four deaths in New Mexico, one in Oklahoma and one in Maryland.

New Mexico officials said Tuesday they are investigating a fifth death, while health authorities in Kansas and Wyoming said they too are investigating additional deaths possibly linked to the tainted fruit.

Listeria is more deadly than well-known pathogens like salmonella and E. coli, though those outbreaks generally cause many more illnesses. Twenty-one people died in an outbreak of listeria poisoning in 1998 traced to contaminated hot dogs and possibly deli meats made by Bil Mar Foods, a subsidiary of Sara Lee Corp. Another large listeria outbreak in 1985 killed 52 people and was linked to Mexican-style soft cheese.

Listeria generally only sickens the elderly, pregnant women and others with compromised immune systems. The CDC said the median age of those sickened is 78 and that one in five who contract the disease can die.

Dr. Robert Tauxe of the CDC says the number of illnesses and deaths will probably grow in coming weeks because the symptoms of listeria don’t always show up right away. It can take four weeks or more for a person to fall ill after eating food contaminated with listeria.

“That long incubation period is a real problem,” Tauxe said. “People who ate a contaminated food two weeks ago or even a week ago could still be falling sick weeks later.”

CDC reported the 72 illnesses and deaths in 18 states. Cases of listeria were reported in California, Colorado, Florida, Illinois, Indiana, Kansas, Maryland, Missouri, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, Texas, Virginia, West Virginia, Wisconsin, and Wyoming. The most illnesses were reported in Colorado, which has seen 15 sickened. Fourteen illnesses were reported in Texas, 10 in New Mexico and eight in Oklahoma.

The outbreak has been traced to Jensen Farms in Holly, Colo., which recalled the tainted cantaloupes earlier this month. The Food and Drug Administration said state health officials had found listeria in cantaloupes taken from grocery stores in the state and from a victim’s home that were grown at Jensen Farms. Matching strains of the disease were found on equipment and cantaloupe samples at Jensen Farms’ packing facility in Granada, Colo.

FDA, which investigates the cause of foodborne outbreaks, has not released any additional details on how the contamination may have happened. The agency says its investigation is ongoing.

The Rocky Ford-brand cantaloupes from Jensen Farms were shipped from July 29 through Sept. 10 to Arkansas, Arizona, California, Colorado, Idaho, Illinois, Kansas, Minnesota, Missouri, Montana, Nebraska, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming.

The recalled cantaloupe may be labeled “Colorado Grown,” ‘’Distributed by Frontera Produce,” ‘’Jensenfarms.com” or “Sweet Rocky Fords.” Not all of the recalled cantaloupes are labeled with a sticker, the FDA said.

Unlike many pathogens, listeria bacteria can grow at room temperatures and even refrigerator temperatures. The FDA and CDC recommend anyone who may have one of the contaminated cantaloupes throw it out immediately and clean and sanitize any surfaces it may have touched.

About 800 cases of listeria are found in the United States each year, according to CDC, and there usually are three or four outbreaks. Most of these are traced to deli meat and soft cheeses, where listeria is most common.

Produce has rarely been the culprit, but federal investigators say they have seen more produce-related listeria illnesses in the past two years. It was found in sprouts in 2009 and celery in 2010.

While most healthy adults can consume listeria with no ill effects, it can kill the elderly and those with compromised immune systems. It is also dangerous to pregnant women because it easily passes through to the fetus. Dr. Tauxe of the CDC said the type of listeria linked to the cantaloupes is not one that is commonly associated with pregnancy-associated illnesses, however. State and federal health authorities have not definitively linked any miscarriages, stillbirths or infant illnesses to the current outbreak.

Symptoms of listeria include fever and muscle aches, often with other gastrointestinal symptoms. Victims often become incapacitated and unable to speak.

Debbie Frederick said her mother knew something was wrong when her father, 87-year-old William Thomas Beach, collapsed at his home in Mustang, Okla. and couldn’t get up. He died a few days later, on Sept. 1. The family later learned his death was linked to eating the cantaloupe and sued Jensen Farms.

“First you just kind of go into shock,” said Frederick. “Then it settles in that he would still be alive if this hadn’t happened. It’s a life, for what?”



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Online:

CDC on cantaloupe outbreak: http://www.cdc.gov/nczved/divisions/dfbmd/diseases/listeriosis/092111.html

FDA on cantaloupe recall: http://www.fda.gov/Food/FoodSafety/CORENetwork/ucm272372.htm

Center for Science and the Public Interest, “Super Safe Your Kitchen”: http://www.cspinet.org/new/pdf/safekitchen.pdf

___

Associated Press writers Jamie Stengle in Dallas, Josh Funk in Omaha, Neb., Maria Sudekum Fisher in Kansas City, Mo., Susan Montoya in Albuquerque, N.M. and Ben Neary in Cheyenne, Wyo. contributed to this report.


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source: Washington Post (Jalonick, 9/28)

Bass Pro Outdoor World being sued for Discrimination

Bass Pro Outdoor World was accused in a federal lawsuit filed Wednesday of discriminating against qualified black and Hispanic job applicants since 2005 and retaliating against those employees who spoke up about the practice.

The Equal Employment Opportunity Commission, a federal agency charged with enforcing anti-discrimination laws in employment, filed the lawsuit in U.S. District Court in Houston after failing to reach a voluntary settlement with the company.

The nine-page complaint cited incidents at stores in Indiana, Texas, Louisiana and Alabama but said the hiring discrimination and retaliation permeated multiple stores in various states.

The lawsuit alleges that qualified blacks and Hispanics were routinely denied positions at Bass Pro Shop stores and that managers of stores in Houston, Louisiana and other locations made derogatory racial comments acknowledging the practice.

Larry Whiteley, a spokesman for the Springfield, Mo.-based company, said the company had not reviewed the lawsuit and could not immediately comment.

At one store in the Houston area, the general manager allegedly told the human resources manager that "it was getting a little dark in here, you need to hire some white people," according to the lawsuit. Other managers or supervisors used racial and ethnic epithets to describe blacks and Hispanics, the lawsuit says.

The EEOC also alleged that the company destroyed or did not retain documents related to applications and internal discrimination complaints.

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source: www.indystar.com (9/22)

2 in Texas get sick from melons

Health officials have issued a warning for cantaloupes from a revered melon-producing area of Colorado amid a bacteria outbreak blamed for four deaths in the state and New Mexico, troubling farmers who depend on sales of the fruit.

The warning from the Centers for Disease Control and Prevention came after numerous cases of a strain of Listeria were reported in six states, including at least 11 from Colorado, 10 from New Mexico, two from Texas, and one each from Indiana, Nebraska and Oklahoma.

The agency said it was the first Listeria outbreak linked to cantaloupe in the United States. The U.S. Food & Drug Administration said it had not recalled the melons while it worked to locate the source.

Rocky Ford cantaloupes, named for a region along the old Santa Fe Trail about 130 miles southeast of Denver, are prized for their above-average sugar content.

"This is really silly. You can get Listeria any place. I eat those melons every day," said Kent Lusk, a fifth-generation cantaloupe farmer from Rocky Ford.

Colorado Agriculture Commissioner John Salazar said the contamination might not be the cantaloupes, but a truck or other source. But several Colorado grocery chains pulled their supplies as a precaution, and New Mexico issued a voluntary recall. State Environmental Health Bureau inspectors were collecting cantaloupe samples from grocery stores and distributors across New Mexico for laboratory analysis.

Listeriosis is a serious infection usually caused by eating food contaminated with the bacterium Listeria monocytogenes. The disease primarily affects older adults, pregnant women, newborns and adults with weakened immune systems.

Colorado health director Chris Urbina said people who are at high risk included people 60 and older, those with weakened immune systems from transplants and people with chronic diseases. Symptoms can include fever, muscle aches, diarrhea, headache, stiff neck, confusion and convulsions. Listeriosis can cause miscarriages and stillbirths.

The CDC warning advised people with cantaloupes at home to see if they came from the Rocky Ford region, and if so, not to eat the melons if they're in a vulnerable group. Health authorities asked people throwing out Rocky Ford cantaloupes to put them in a sealed plastic bag before putting them in the trash.

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source: Houston Chronicle (AP, 9/14)