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Courts' Changing Views on Animal Companions - Nov 20, 2012

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Written by Administrator
Tuesday, 20 November 2012 00:00

How do you think of your pet? Is he your BFF (best furry friend), or a possession—i.e., something you own, like a sofa or a microwave oven? Or are you one of the many people in the United States who views your animal companion as a bona fide member of your family? Courts across the country are weighing in on the issue, and the scales may be tilting in a slightly different direction than in the past.


Earlier this year, the Fourth District Court of Appeal upheld $50,000 in emotional distress damages for a California couple who sued their neighbor, John Meihaus Jr., after he used a baseball bat to “guide” their 15-pound miniature pinscher, Romeo, away from his property. There had been bad blood between the Plotniks and Meihaus for some time as a result of a fence dispute, but that suit had been settled, and the neighbors had agreed to cease all hostilities and live in peace. On the day that Romeo was battered, David Plotnik heard a loud banging on the fence and opened his gate to investigate. That was when his dog ran out, dashed onto Meihaus' property and began barking. Meihaus responded by attacking the small dog with a baseball bat.


In addition to suing for emotional distress, the Plotniks were awarded $2,600 to cover veterinary bills that were incurred as a result of the incident. It was the first time the California appellate court recognized emotional distress damages in an injury to a pet.


Writing in Plotnik v. Meihaus, Justice William Rylaarsdam noted that the circumstances demonstrated good cause for emotional distress damages, adding that his decision was in alignment with courts in Washington, Florida and Louisiana. Rylaarsdam also commented that the intentionality of the injury made the case special.


In other cases where the intent to harm has been less clear or unproven, courts have been unwilling to allow the recovery of emotional distress damages. In July, the New Jersey Supreme Court decided that Joynce McDougall could be compensated for the cost and loss of the dog but not for emotional distress. She had witnessed the traumatic death of her dog when it was attacked by the defendant's dog.


In yet another case, the Texas Supreme Court may soon be asked to decide if animal guardians can sue for non-economic damages. Jeremy and Kathryn Medlen are trying to recover the sentimental value of their dog, Avery, who was accidentally euthanized by a shelter worker in 2009. Avery had escaped their back yard and was picked up by animal control. The Medlen's went to retrieve her, but were short on money, so they left to return home and get it after being reassured that Avery would not be euthanized. But of course that is exactly what happened, despite the dog wearing a “hold for owner” tag.


Assigning a “fair value” to animal companions is a difficult, controversial task. Yet, realistically, is it all that different from assessing the value of human companionship and consortium? It's true that most animals do not bring home a paycheck, but that does not diminish the fact that for countless people, companion animals provide as much love, affection and emotional support as humans are capable of giving. I think what we are seeing is a shift in attitudes here, and we can expect the courts to reflect that.



ARCHIVES:

Knee Revision Surgeries On the Rise - Nov 12, 2012

Bonnie and Clyde, Last Stop Sailes - Nov 7, 2012

Restaurant Servers Seek Back Pay - Oct 29, 2012

Faulty Lighting & Crime - Oct 19, 2012

Shreveport, La.'s Citizen Dogs Unite - Oct 15, 2012

International Tours: Who's Responsible for Your Safety? - Oct 5, 2012

A NeverEnding Story...er, Disaster - Sept 27, 2012

After the (Hurricane) Party - Sept 14, 2012

A Value Proposition - June 30, 2012



Last Updated ( Thursday, 03 January 2013 13:59 )

Knee Revision Surgeries On the Rise - Nov 12, 2012

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Written by Administrator
Monday, 12 November 2012 00:00

If you are clueless about knee revision surgery, consider yourself lucky. It probably means you aren't a member of the worn-out knees club. While I personally have been fortunate enough to retain the use of my own two knees, as a medical malpractice attorney, it's my job to stay abreast of health care issues and trends, and total knee replacement, or TKR, is definitely one to keep an eye on. It's amazing how commonplace this procedure has become.

Every year, about half a million people undergo total knee replacement. It's considered a safe procedure and, for most people, it gives them back their mobility and a chance to enjoy life again. But in about 3% of the cases, patients will experience what is known as prosthesis failure in the first five years.

There are a number of reasons why this happens. It can be due to infection, poor fit, loosening of the device, poor surgical technique, mechanical overload and even Osteolysis. When dealing with prothesis failure, the most important thing you can do is have an expert identify why it happened so that your revision surgery has a better chance of success.

Faulty devices are rare, but if your prothesis is one of the few that made it to market, only later to be shown that it was poorly designed or had defects due to the materials used or the manufacturing process, you could be facing a second surgery.

If you are in despair at the thought of going through another surgery, it may help to know that you are not alone in this situation. According to a study published by the National Institute of Health, the number of revision procedures “is expected to increase from 37,544 in 2005 to 56,918 by 2030.

Additionally, the study concluded, projected hospital costs for these procedures could exceed 2 billion dollars by then, as the number of revision knee surgeries is expected “to increase by 66% in the next 25 years.” Furthermore, “reimbursement rates will not cover hospital costs for this procedure despite recent increases in Medicare payments for revision arthroplasty.”

Wait a minute. Back up. So, every knee revision surgery covered under Medicare is a money loser for hospitals? According to a study funded by the NIH, yes.

That is not a comforting thought.

What can you do about it? Well, for starters, you can understand that things sometimes go wrong with this procedure. Just be prepared. If you have any concerns after the operation, discuss them immediately with your surgeon. In cases where a faulty device is suspected, a responsible physician will contact the manufacturer and the FDA so an investigation can begin. Your physician should also be willing to spend extra time and staff resources for clinical monitoring during this difficult time.

If you find your surgeon is unresponsive to your needs, find another surgeon right away—someone who specializes in diagnosing knee replacement problems. When it comes to verifying a diagnosis of infection in knee replacement therapy, time is of the essence. Regardless of the cause of the prosthesis failure, getting a correct assessment of the problem has to be your number-one priority. The sooner you discover why your knee replacement failed, the sooner you will be back on the path to recovery.

Last Updated ( Thursday, 03 January 2013 13:59 )

Bonnie and Clyde, Last Stop Sailes - Nov 7, 2012

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Written by Administrator
Wednesday, 07 November 2012 00:00

I recently learned that Bonnie and Clyde, the notorious Depression-era bank robbers, were shot and killed near Sailes, Louisiana.

If that sounds like the most random remark you have heard today, let me insert a disclaimer here: I did warn you that from time to time I might feel compelled to blog about the strange, the beautiful or the bizarre. Well, today I feel compelled to write about the bizarre because I just happened to read that the guns found on Bonnie and Clyde at the time of their deaths were auctioned off last month for the grand sum of $504,000. The snub-nosed .38 special that 23-year-old Bonnie Parker was wearing taped to her thigh when she died went for $264,000, while the Colt .45, that was found tucked inside 24-year-old Clyde Barrow's waistband, sold for $240,000. The couple died on a lonely stretch of road three miles north of Sailes when they were ambushed by a posse of Texas and Louisiana lawmen in 1934.

As I said, I had no idea that the bandits met their fateful end here in Louisiana. For some reason I had always thought of Bonnie and Clyde as a Texas story. But, no, it seems that during their four years together, they wandered back and forth across five states—Texas, Oklahoma, Missouri, New Mexico and, finally, Louisiana, where their shared life of violent crime came to an abrupt and bloody end. They were tracked down by law officials who knew they were holed up on a farm in Bienville Parish. All the lawmen had to do was hide in some bushes alongside Highway 154 and wait for the pair to drive past. As their 1934 Ford approached, the six lawmen sprang into view and opened fire on Bonnie and Clyde, killing them instantly in a spray of bullets.

There have been many explanations as to why the story of Bonnie and Clyde continues to fascinate us. Many people say it's because they were folk heroes who boldly stood up to the banks at a time that was...well, a lot like now: the little people struggling to hold on, trying to survive hard times.

The few photographs the couple left behind, as they fled from one hideaway to the next, show them posturing before the camera, gripping their weapons, smug and defiant, ready to take on anyone who got in their way. They were the classic underdog. Bound to go down. But we admire their determination anyway.

Or maybe we hold onto them because legend says they were crazy in love. In that now-famous picture of Clyde carrying Bonnie on his shoulder, their eyes are soft, she is resting her hand on his chest. They look nothing like killers. The backdrop of romance is always a powerful element in myth making.

Finally, it's possible we refuse to let them fade away because we know there was something slightly unfair about how they met their end. They lived and died by the sword, to be sure. But the law—we had higher expectations there. Gunning them down without so much as a warning—it doesn't fit our idea of justice.

Whatever the reasons, we simply cannot get over Bonnie and Clyde—as confirmed by the rising value of their memorabilia. The Pimm Valley Casino, in Pimm Valley, Nevada, is the current owner of Clyde's death shirt. It was bought in 1997 for $85,000. The casino also owns the couple's Ford V8, the one they died in. It was bought for $250,000.

In its own modest way, Louisiana, too, has long been involved in the Bonnie and Clyde memorabilia business. In 1972, the Bonnie and Clyde Ambush Museum opened its doors in Gibsland, La. As recently as a few years ago, the museum gift shop was still selling one-inch swatches of Clyde's death pants for $200 a piece. For those with a more restricted budget, offerings included the original bricks from Ma Canfield's Cafe, the local diner where Bonnie and Clyde supposedly stopped for a bite to eat before going to meet their destiny. The cost for each brick? A mere $20. All in all, a pretty good deal when you consider the half a million dollars that was just shelled out for the couple's pistols. Even Bonnie and Clyde would have agreed, someone got robbed.

Last Updated ( Thursday, 03 January 2013 14:00 )

Restaurant Servers Seek Back Pay - Oct 29, 2012

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Written by Administrator
Monday, 29 October 2012 00:00

Thousands of current and former servers employed by Olive Garden, Red Lobster, LongHorn Steakhouse and The Capital Grill are suing the parent company, Darden Restaurant Inc., claiming they were paid below minimum wage and that the company owes them back pay and other compensation, plus interest and attorney's fees. The lawsuit was filed in September in Miami federal court and, if successful, could result in Darden having to pay out tens of millions of dollars in restitution; but more importantly, it could spark a new nationwide debate on what constitutes unacceptable labor practices and how high (or low) our level of tolerance should be for such behavior.

 In the case of Darden Inc., the lawsuit alleges the following:

Servers showed up for shifts as scheduled but were not allowed to clock in until customers began arriving. Some were also forced to clock out and continue working without pay.

Employees who worked beyond 40 hours a week were not paid 1.5 times their regular pay as required.

Tipped employees refilled salt shakers, rolled silverware in napkins and vacuumed for more than 20 percent of their work time. Such "side work" beyond 20 percent for tipped employees entitles them to at least the minimum wage, which those employees otherwise do not usually get.

This is not the first time that Darden Inc. has been investigated for violating labor laws. In 2011, the Department of Labor found the company guilty of labor violation related to Olive Garden workers in Mesquite, Texas. The workers there received more than $25,000 in back wages, and the company was fined $30,800. That same year, a separate investigation resulted in Darden being required to pay more than $27,000 in back pay to Red Lobster workers in Lubbock, Texas. Again, Darden was fined, this time around $24,000.

What is interesting about this latest lawsuit is that it is an attempt to collectively seek restitution on behalf of a large number of employees, both past and current, who were working in not one, but four, different eateries belonging to the parent company.

The restaurant business is not the only industry that has been accused by its employees of violating federal and state labor laws. Similar lawsuits have been filed agains publishers and newspapers for taking unfair advantage of unpaid interns who performed substantial work to the benefit of the employer. One recent lawsuit was filed against the Hearst Corporation, owner of Harper's Bazaar. The lawsuit alleges that, among other things, Hearst had interns work as much as 55 hours a week without compensation.

Unpaid internships have been on the rise since the 1990s. Today, it is common practice for college students to work for corporations as a means of gaining experience. But is it really fair of corporations to take advantage of the labor of college students without pay?

As for the Florida servers who reported to work expecting to perform tipped services for which they were hired, but ended up spending more than 20 percent of their time doing untipped “side work,” this hardly sounds fair. It is a well-known fact that servers wages are generally lower than minimum wage because there is the understanding that a server's real earnings come from tips. It seems to me that if servers are flexible enough to do tasks outside of their main area of work, then management should also be flexible when it comes to pay.

All workers deserve, at the very least, the opportunity to earn minimum wage, and in the case of the Florida restaurant servers, being asked to do side work for wait-staff pay deprived these workers of that opportunity and reduced them, in effect, to working for a pittance.

Restaurants rely heavily on their reputation to get the kind of foot traffic they need to be profitable. I really can't see how being known as a repeat violator of labor laws can be a sound strategy for building a positive brand. At any rate, I expect to see more of these types of lawsuits in the future. 

Last Updated ( Thursday, 03 January 2013 14:00 )
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