Alabama Injury Lawyers Blog

Arbitration -- Another 5 to 4 decision U.S. Supremes

Wed, 21 Jul 2010 10:03:14 -0600

Scalia writes for what some have called the big business wing of the court, that if you signed an unfair arbitration agreement and therefore claim it is unenforceable, you still cannot go to court -- the arbitrator gets to decide if it was unfair.

The main question involved is whether one is able to go to court to determine if an arbitration agreement could be set aside because it was legally unconscionable.

The Supreme Court said if the agreement says the arbitrator is to determine if the agreement is enforceable, then under the Federal Arbitration Act ("FAA"), the arbitrator will make that decision and you cannot go to court. Justice Scalia wrote for the 5 justices that prevailed saying if the challenge was just to a particular part of the agreement rather than the whole, then a court could decide. So if one claimed just part of the agreement was unenforceable a court could decide, but if you claimed the whole agreement was unenforceable the arbitrator got to decide? Interesting!

Justice John Paul Stevens, writing for what some have called the people side of the court dissented and criticized the majority for adopting a position not proposed by either party during briefing or oral arguments. From a legal standpoint it is nearly unheard of for the court to make a decision on an issue or facts not raised by either side. Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor, joined in the dissent.

The lesson for all of us -- reinforced -- Don't sign an arbitration agreement unless you are sure you know what you are doing and understand it will probably cost you more to go to arbitration than to court.

By Gregory S. Cusimano

Docket No.: 09-497
Petitioner: Rent-A-Center West, Inc.
Respondent: Antonio Jackson
Decided By: Roberts Court (2009-2010 )
Opinion: 561 U.S. ___ (2010)
Granted: Friday, January 15, 2010
Argued: Monday, April 26, 2010
Decided: Monday, June 21, 2010

SCOTUS -- Silence is Not Enough to Remain Silent

Fri, 04 Jun 2010 09:55:07 -0600

By Gregory S. Cusimano

You have the right to remain silent, anything you say can and will be used against you in a court of law. You have a right to an attorney and have that attorney present when we question you. If you cannot afford an attorney, one will be provided you at no cost.

If you have ever watched a law TV show you know an incriminating statement by a suspect cannot be used against them unless they have been Mirandized. An article in the ABA Journal reports that in a new Supreme Court opinion "Suspects Must Speak to Invoke Right to Silence"

In a 5-4 opinion the Court in substance held that remaining silent for 3 hours of questions from the police did not invoke the right to remain silent. I guess the suspect would have to speak to remain silent. Actually say, I refuse to waive my Miranda right to remain silent. Warden V. Thompkins ,(No.08--1470), 560 U.S._____(June, 2010).

The 4 dissenting Justices call the majority opinion a "substantial retreat from the protection against compelled self-incrimination." The defendant took the position that he invoked his Miranda right to remain silent by actually remaining silent. The Majority disagreed.

It is also interesting why it seems recently the Court has not followed precedent of deciding cases as narrowly as possible. We have seen a shift. What do you think?

Alabama Consumers Beware of Exploding Plastic Gas Containers

Mon, 26 Apr 2010 14:07:00 -0600

Should we be concerned with current gas containers?
by Gregory S, Cusimano

Howard Dawn poured gasoline into the tank of his lawn mower, placed the cap on the gas container spout and placed it in the middle of a nearby outdoor table in his yard.   Jimmy, his 4 year old son, playing in the backyard, somehow picked up the gas container, the cap came off and Jimmy dragged the container into the open garage. When Howard saw Jimmy and the gas container lying on the floor in a puddle of gasoline, he ran and grabbed Jimmy.   As he did the gasoline vapors caught on fire and the gas container exploded, engulfing them in flames, severely burning Jimmy and Howard. How could that be? What could have ignited the gasoline? Why would the plastic container explode?

It's spring, we all love being outside, working in the yard, smelling fresh cut grass enjoying Alabama's new growth of azaleas. We can be close to tragedy without ever knowing it. If you have a weed eater, lawn mower or gasoline blower, you are likely to have a cheap red plastic gasoline container. Now we know that something we think is simple and cheap would not explode like dynamite engulfing us or our children in flames. Right? Wrong! Children and family members have been devastatingly burned by these yard bombs. Fumes can ignite from hidden sources and the fire re-enters the containers which explode. We never would have guessed how easily the fumes can ignite. A pilot light, light switch, an open flame or even static electricity can start the fire.

The Consumer Product Safety Commission (CPSC) just last year finally required plastic gas cans or containers to have safety caps which are resistant to being open easily by children. Although overdue, it was a good step.

Understanding the difference in Believing and Knowing!

Wed, 21 Apr 2010 11:25:16 -0600

I have mused before about how a belief can form an attitude. I still think that is true, but, somehow there is a difference in what someone believes and what someone knows. The belief system is formed, adopted, modified, and solidified generally on what we have seen, heard, been, tasted, experienced, touched, or read. In other words, it is formed through our senses based on what we have been told, taught, or information we have received. Often supported by anecdotal information. Our belief system can be formed by our parents, schoolmates, media, employer, partner, books, T.V., internet, etc.--often from people we think are in authority or have more information than we have.

Generally, the belief system is formed from external sources, and then unconsciously adopted internally. If we are exposed to the same information over and over again with little if any contrary information, the belief system becomes more deeply held. The view may reach what can be called a core belief and can even approach something that is just known.

Knowing can be distinguished from most beliefs because it is something you just know. You can feel it. You are certain. You can't always explain why, but there is something within that just tells you this is so. Maybe some kind of internal guidance system, or innate knowledge, or even primal knowledge, but something is providing you with the needed answers, the direction, and the right reflex as long as you listen to the internal information. A belief is subject to contradiction and possibly can be changed--a knowing generally cannot.

Although beliefs can be altered, the more deeply a belief is held, the more difficult it is to alter. Once it reaches the state of knowing, it's much more difficult to alter, if it can be altered at all. It requires a much longer and a more systematic rhythmic experience. Sometimes the source of knowing is referred to as the inner voice, or may even have a spiritual dimension, but from wherever the source, it is undeniably there. There are just things we know, oftentimes on an unconscious gut level, but just as often on a conscious cognitive level. The level of knowing is much more powerful than the level of believing.

As lawyers who try cases, it is important to learn the beliefs and even the "knowings" of the people who compose our juries. Believing is seeing, not the other way around. It is just as important to understand views regarding politics, parties, religion and opposing views. Attitudes, beliefs, and knowings affect our very lives. Being aware of their effect on our lives is a plus.

I think it was Will Rogers who once said, "It's not ignorance that's so bad, it's what you know that ain't so".

Plastic Gas Container -- Dynamite in a Can?

Mon, 01 Mar 2010 12:21:26 -0600

Fumes Ignite Re-Enter Gas Container and Explode!

Do you have a plastic gas container you use? I'll bet it doesn't have a fire safety shield. For well over 100 years gas cans for gas storage were known to be equipped with safety shields - a simple mesh filter that keeps ignited fumes from going back into the container and exploding injuring and killing people. Once big box stores started buying and selling things for the cheapest prices possible makers of gas containers started using plastics and chose to sell the containers without the simple safety shield.

Since then many have been injured and killed by fires and explosions that could have been prevented if a simple safety shield costing pennies had been included. Fumes Ignite Re-Enter Gas Container and Explode!

Do you have a plastic gas container you use? I'll bet it doesn't have a fire safety shield. For well over 100 years gas cans for gas storage were known to be equipped with safety shields - a simple mesh filter that keeps ignited fumes from going back into the container and exploding injuring and killing people. Once big box stores started buying and selling things for the cheapest prices possible makers of gas containers started using plastics and chose to sell the containers without the simple safety shield.

Since then many have been injured and killed by fires and explosions that could have been prevented if a simple safety shield costing pennies had been included.

Radiation Overexposure -- CT Scans

Thu, 25 Feb 2010 17:19:28 -0600

Some people throughout the United States have received excess radiation as a result of medical imaging. Many of the scanners were GE machines. A case has been filed by our firm and others to create a medical monitoring fund to provide annual or semi-annual testing. The testing will (1) provide earlier detection of cancerous tumors resulting from the radiation; and (2) provide early detection to allow quick and decisive treatment.

GE has asked the Court to dismiss the case and is claiming that the patients' hair loss and subcellular damage are not a "present injury."

Hearing will be held in Washington D.C. this week concerning the safety and safeguards that can or should be implemented. Patients are hopeful that the hearings scheduled to be held tomorrow by the Committee on Energy and Commerce (Subcommittee on Health) will ask substantive questions regarding the safeguards that GE, and other CT manufacturers, have failed to include in their machines which would have ensured patient safety and eliminated this unnecessary risk. We further hope that the Committee will uncover why it has taken the overexposure of hundreds of patients to garner the industry's attention to this serious public health matter.

It has now been discovered that patients in Missouri have suffered exposure as well as patients in Alabama and California. The patients exposed to dangerous levels of radiation in Springfield, Missouri are appears to be another example of the industry's disregard for patient safety.

The law firms representing patients are Cusimano, Keener, Roberts, Knowles & Raley, LLC, Gadsden, Alabama, Watson, McKinney & Artrip, LLP, Huntsville Al, and Owen, Patterson & Owen in CA. Those wishing further information about the law suit may contact lawyers in those firms.

Government bans texting by bus & truck drivers

Mon, 08 Feb 2010 09:30:22 -0600

The United States Department of Transportation has announced new rules, effective immediately, to prohibit truck drivers and bus drivers from texting while driving commercial vehicles. Civil or criminal penalties of up to $2,750 may be imposed for violations. Specifics on implementation of the ban have not yet been established.

A Virginia Tech study concluded that 80% of crashes are related to driver inattention. According to the National Safety Council, drivers using handheld devices are 4 times as likely to be involved in wrecks serious enough to cause injuries.

Research by the Federal Motor Carrier Safety Administration shows that drivers who text take their eyes off the road for an average of 4.6 seconds out of every 6 seconds. Drivers who text are more than 20 times more likely to become involved in an accident than drivers who are not texting. Several states have already passed legislation prohibiting texting while driving.

Mike Roberts

Cadmium Concerns In Chinese Toys And Jewelry

Thu, 04 Feb 2010 16:13:13 -0600

The Consumer Product Safety Commission has expressed concern about cadmium in cheap metal jewelry, and has suggested that such jewelry and toys be taken away from children because of potential exposure to toxic metal.

In 2008, a federal ban was instituted on the use of lead in charms and jewelry. Many, however, have feared that some Chinese manufacturers simply began substituting cadmium, which is also toxic. The Associated Press reported high cadmium levels in bracelet charms and similar items in Wal-Mart and Claire?s stores, resulting in these products being withdrawn at those stores.

Cadmium can cause cancer and kidney problems. Typically, cadmium poisoning is associated with heavy industry workers, such as those involved in smelting ore or recycling batteries. Experts have not previously seen significant cadmium issues associated with children?s health issues. The president of the Consumer Product Safety Commission, Inez Tenebaum, has suggested that children not be permitted to use cheap metal jewelry.

The problem has drawn the attention of Congress, where hearings are being requested, and legislation addressing the cadmium issue in jewelry and toys is being proposed.

Michael L. Roberts