Family Feud – Where’s Your Sense of Humor?

Everyone has, at one time or another, been offended by a relative’s hurtful comments. In the case of Sunda Croonquist’s family, however, the offended relatives were not content to let the offending comments pass without notice.  As reported by ABA Journal and other outlets, the family members actually sued her. Turns out that Ms. Croonquist is a comedienne, who takes advantage of her mixed ethnicity – she is half-black and half-Swedish and is married to a Jewish man – to poke fun at her family. Apparently, the family was not laughing, especially when Ms. Croonquist publicly joked that some of them were racist. Several of Ms. Croonquist’s in-laws, including her mother-in-law, filed suit in New Jersey alleging, among other counts, defamation and infliction of emotional distress.

Ms. Croonquist, however, got the last laugh. After Ms. Croonquist’s lawyers filed a motion to dismiss (to add to the familial complexity, Ms. Croonquist was represented by her husband’s law firm), the trial court ruled that Ms. Croonquist’s comments, while perhaps hurtful, were protected by the First Amendment because they were merely her personal opinions. In order to prove a case of defamation, one has to prove that the speaker made a false statement. An opinion, being a subjective belief of the speaker, cannot be considered true or false, so it cannot support a claim for defamation. So Ms. Croonquist is free to continue insulting her relatives, and comedians around the country can continue making mother-in-law jokes.

No word yet on when the next family reunion is going to be held.

Infant Safety – drop-down crib hazard; CPSC issues recall

In February of this year, we reported on the Consumer Product Safety Commission’s (CPSC) commitment to crack-down on the defective crib issues that have resulted in multiple deaths of infants on our blog site.  A report just released by the CPSC, which involves a comprehensive review of crib-related fatalities since January 2000 revealed the tragic statistics:  32 deaths since January 2000 and hundreds of related instances related to drop-side detachments in cribs:

In addition to the 32 deaths the CPSC staff associated with the drop-side detachments, CPSC has received an additional 14 reports of infant fatalities due to entrapment in cribs that could be related to a drop side. The information obtained was insufficient for staff to conclusively determine whether or not the drop side was involved. Of the 32 deaths that were analyzed, some occurred in cribs where the drop side detached without caregivers noticing the detachment, while some other deaths occurred after a consumer tried to repair the detached drop side, but the repair ultimately failed.

As a result, the CSPC is issuing a voluntary recall of ALL drop-side cribs, effective June 1, 2010. There will be new improved mandatory standards for cribs as well.  The CPSC announcement also provides cautions regarding older cribs and reminds parents to not use cribs with broken, missing of loose parts.

Let’s hope these new standards save infants from injuries and death!

McNeil Consumer Healthcare Announces Voluntary Recall of Certain OTC Infants’ and Children’s Products

Last week, the FDA and McNeil Consumer Healthcare launched a massive voluntary recall of certain medications for infants and children.  There is a dedicated McNeil website that addresses the recalls.  In addition, the FDA has published a press release that has some of the important information regarding the recall

The following is some basic information concerning the recall, as published by McNeil under the Product Recall Information:

McNeil Consumer Healthcare is initiating this voluntary recall because some of these products may not meet required quality standards. This recall is not being undertaken on the basis of adverse medical events. However, as a precautionary measure, parents and caregivers should not administer these products to their children. Some of the products included in the recall may contain a higher concentration of active ingredient than is specified; others may contain inactive ingredients that may not meet internal testing requirements; and others may contain tiny particles. While the potential for serious medical events is remote, the company advises consumers who have purchased these recalled products to discontinue use.

The investigation into these products, which include, but are not limited to, Infants’ and Children’s Tylenol and Motrin (Please click here for a complete listing) is ongoing.  The Commissioner of Food and Drugs, Dr. Margaret A. Hamburg, states:  “While the potential for serious health problems is remote, Americans deserve medications that are safe, effective and of the highest quality. We are investigating the products and facilities associated with this recall and will provide updates as we learn more.”

We will continue to monitor this massive recall.  Please immediately check your homes for the recalled products. We strongly recommend that you read and follow the FDA’s instructions.

Supreme Court closes its front doors to the public

Earlier this week, news broke from various media sources around the country, including The Washington Post, that the front doors of the United States Supreme Court would no longer be open to the public.  The Court, citing security concerns, stated that effective immediately, visitors will enter the historic building on the plaza level, which includes security checkpoints.

This decision,  like so many other decisions from the Court, includes dissenting opinions from more than one Justice.  A Washington Post article states:

The changes have been debated for years and came with a dissent from two justices who expressed  concern about altering the symbolic experience of visiting the 75-year-old building, designed by architect Cass Gilbert.

“The significance of the court’s front entrance extends beyond its design and function,” Justice Stephen G. Breyer wrote in a statement joined by Justice Ruth Bader Ginsburg. “Writers and artists regularly use the steps to represent the ideal that anyone in this country may obtain meaningful justice through application to this Court. And the steps appear in countless photographs commemorating famous arguments or other moments of historical importance.

“In short, time has proven the success of Gilbert’s vision: To many members of the public, this court’s main entrance and front steps are not only a means to, but also a metaphor for, access to the court itself.”

Justice Breyer noted that he “knows of no other supreme court in the world that has closed its main entrance.”

I leave you with this to ponder….

Is it troubling to you that we are now barred from walking through the majestic doors of the highest court of this great country, where the above inscription reads “Equal Justice Under Law”?

Another Child Dies. Will DC EMS Improve Now?

We reported back in mid-March on our blog site on the issues surrounding an investigation of the District of Columbia’s Emergency Medical Services. Since then, DC EMS has represented that they have made positive changes to their department.  In a headline article posted on MSNBC.com at the end of this past week, D.C. Fire and Emergency Medical Services Chief, Dennis L. Rubin, represented positive changes are being made:

Rubin said he is working to drive home a key point: providers never decline transport.

His staff is developing a “patient’s bill of rights” to be posted in every ambulance and producing a new  training video underscoring that message. In addition, the policy has been expanded to cover instances in which a patient refuses to be transported, including the requirement that responders get an OK from a supervisor and have a witness, such as a police officer, confirm the patient’s decision.

We certainly hope this is the case.  Our prior post cited a troubling report from April 2009, wherein it was found that there were serious training and performance issues relating to DC EMS.  The article posted at the end of  this past week also details another tragic event that unfolded after the report in April 2009:

Stephanie Stephens died after paramedics refused to take her to the hospital Feb. 10 in the first of two visits to her home after she experienced breathing problems. Her death has prompted a rare criminal investigation and raised questions about ambulance policies in Washington and emergency care for children nationwide.

After the paramedics recommended she be taken into a bathroom to inhale steam from a running shower, Stephanie’s family called back hours later and an EMS crew took her to a hospital. The child died from pneumonia the next day.

Anyone have issue with this?  How many tragedies must we endure before there is ZERO TOLERANCE for such costly delays?!  The citizens and guests of DC are dependent upon DC EMS to provide assistance immediately; not to give bad medical advice, try to play doctor, or decide that they will just simply not transport someone.  Read the report from last year cited above, along with the relevant articles.  Then, you decide.  I wonder what Stephanie’s family thinks…

Drug-Eluting Stents Found Effective at Preventing Major Amputations

It is generally accepted in the medical community that drug-eluting stents (DES) are helpful in restoring normal blood flow to the heart. In recent years, however, DES treatment has been applied with proven success in other contexts.

For example, consider a patient with peripheral vascular disease (PVD); an unfortunately common medical condition characterized by the occlusion of the arteries of the legs and arms. This disease is usually caused or exacerbated by other medical conditions such as diabetes, high cholesterol, high blood pressure, and kidney disease. People who smoke are at a much higher risk for developing PVD as well. It has been reported that as many as five million adults in the U.S. have PVD.

Patients with PVD tend to experience a gradual decrease in blood flow to their extremities. Over time, this can result in a complete interruption of blood and the development of necrotic tissue. In the past, once necrotic tissue was present, amputation was often the only available medical treatment.

Recent research suggests that DES treatment may be used effectively to prevent or reverse arterial occlusions in patients with PVD. According to an article published by Modern Medicine, researchers studied 106 patients who were treated with DES to restore blood flow in the lower extremities.

There were no procedural deaths, and 96 percent of the patients were discharged within 24 hours. The researchers found that the three-year cumulative incidence of amputation was 6 percent ± 2 percent, survival was 71 percent ± 5 percent, and amputation-free-survival was 68 percent ± 5 percent. Also, only 12 percent of patients who died had a previous major amputation. The target limb revascularization rate was 15 percent.

This study suggests that DES treatment can be effective at preventing major amputations. If you are facing the possibility of amputation as a result of PVD or another ischemic process, ask your doctor about angioplasty and DES treatment.

Contributing author: Jon Stefanuca

Facts You May Not Know, but Should!- Hidden Dangers of Trampolines

Well, it looks like it will be 80 plus degrees and sunny outside for the first weekend of May here in the Nation’s Capital.  This means lots of outdoor activities; pool parties, lawn games, playing in the park…some will even have trampolines on their property, with the neighborhood kids coming over to use them.  CBS News reports on some of the hidden dangers of trampolines, as posted in an article today:        

Last year alone, an estimated 98,000 people were treated in emergency rooms for trampoline related injuries. 82 percent of them were children under the age of 15.

Trampoline safety expert Marc Rabinoff, of Metropolitan State College of Denver, Colo., calls trampolines “quad machines” because they can turn you into a quadriplegic in four seconds.”

Warnings on trampolines say no flips, no jumpers younger than 6 and only one jumper at a time, but those warnings are often ignored. Koeppen pointed out videos from YouTube that show children jumping and falling from trampolines.

Rabinoff says people don’t realize trampolines are a danger in their backyard. Rabinoff demonstrated to Koeppen how jumping with more than one person can throw you off.

The article goes on to state that ‘safety nets’ placed around the trampoline can reduce accidents by up to 50%.  However, they are not required by law.  In addition, and take note – insurance companies may not necessarily cover trampoline accidents on their policies.  Coming from Florida last year, where I practiced plaintiff personal injury law, I can tell you that I was contacted on more than one occasion by families who had a loved one injured as a result of a trampoline accident.  Each time I would check the homeowner’s policy of the responsible homeowner, (if they even had homeowner’s insurance; some didn’t) there was the EXCLUSION for such accidents!  No coverage!

The article also suggests that trampoline owners should erect fences around their property, to prevent others from wandering on the property and injuring themselves on or around the trampoline.  I, for one, will not be allowing my first-born son on any trampoline anytime soon.  In this line of work, you really do get to see the worst of what can happen, when a chain of events causes something to go terribly wrong.  Why ask for trouble?

Stroke Warnings:Most People Who Experience Minor Strokes Do Not Recognize Its Symptoms

According to an article published by WebMD, a recent study suggests that most people who experience minor strokes or transient ischemic attacks (TIA’s) do not recognize their symptoms and/or do not seek timely medical attention.A stroke is generally defined as an interruption of blood flow to the brain.

Strokes can be divided into two categories: hemorrhagic strokes and ischemic strokes. TIA is a condition that manifests itself with stroke-like symptoms for less than 24 hours. TIA does not by itself result in lasting neurological damage. However, people who experience TIA episodes often develop strokes. According to the article, one in 20 patients with TIA will develop a major stroke.

After interviewing about 1000 patients, researchers concluded that about 70% of the patients did not recognize TIA or minor stroke symptoms and that less than half of the patients with these conditions sought medical attention within three hours from the onset of symptoms.    

If you are at an increased risk for developing a stroke, ask your doctor for information on TIA and stroke symptoms. Early medical intervention is key in treating stokes. Please take some time to familiarize yourself with some of the TIA/stroke symptoms.

According to the article, people who experience minor strokes may develop one or more of the following:

• sudden numbness or weakness in the face, arms or legs, especially on one side of the body
• sudden trouble speaking or understanding
• confusion
• sudden vision problems in one or both eyes
• dizziness, loss of balance, or sudden trouble walking
• severe headache with no obvious cause

Remember – time is of the essence in getting treatment. Certain therapies (e.g. tPA) simply can not be administered to you if too many hours pass.

Contributing author: Jon Stefanuca

A Baltimore City Ordinance Fuels The Abortion Debate – Archdiocese Goes to Court To Have It Declared Unconstitutional

According to a recent article in the Baltimore Sun, a Baltimore City ordinance requires local crisis pregnancy centers to post signs in their clinics disclosing that they do not offer abortion or birth control services. Apparently, this ordinance has angered the Archdiocese of Baltimore, which has decided to file a lawsuit in the Federal District Court, seeking to have the ordinance declared unconstitutional.  Its argument is that the government should be prohibited from compelling speech by requiring the clinics to post signs.  Why would the Archdiocese want to get rid of an ordinance, which, in essence, tells the public “you cannot get an abortion here?”

It appears that the Archdiocese’s remonstration has more to do with what the clinics do separate and apart from what the ordinance requires. Because the clinics must disclose that they do not offer abortion services, some of the clinics choose to post another notice, which informs the public about clinics that do offer abortion services. The ordinance does not require such a notice.

The Archdiocese seems to assume that the clinics would not have the incentive to post information on abortion clinics in the absence of the ordinance. This assumption appears attenuated at best.  Were these notices voluntarily posted by the clinics before the ordinance was enacted? Even if the ordinance were to be repealed, would the clinics still choose to post these notices? After all, they are not compelled to post the notices under the ordinance at the present time.  Whether or not a clinic chooses to post information on abortion clinics, can a patient simply walk in and inquire about abortion clinics?  The bottom line is that these clinics disclose information on abortion services because they want to and not because they have to.

I am curious if the Archdiocese would still want to pursue a lawsuit to repeal the ordinance if the clinics did not post notices with information on abortion clinics. Would it still have a problem with an ordinance telling the public “no abortions here.” Your thoughts?

Contributing author: Jon Stefanuca

Jury Duty: Sleeping Juror in FL, An Emailing Judge-Juror in CA & A Wikipedia Juror in MD

How many times have we lawyers seen a sleeping juror (well – I should add – never during my presentation!)?  Before a prospective juror even made it on to the jury in a criminal case in Florida, he was struck by the prosecution on the basis that he was seen sleeping during voir dire (the process of questioning prospective jurors to determine potential bias or other disqualifying information).  While this is a a situation which occurs throughout the courts of this country daily, the ‘sleeping juror’ issue became the basis for an appeal in the case of Harrell v State, ___ So. 2d ___ (Fla 4th DCA – 2/24/10).

In a blog entitled “Don’t Let Sleeping Dogs Lie,” we learn that the prospective juror, a Mr. Sanders, was African-American, as was the defendant.  The defense made a Neil challenge claiming that the prosecutor’s strike was impermissibly based on race.  Under Florida law, it appears, “sleeping” during voir dire is a valid race-neutral reason for striking a juror  — not to wake him up,  but to remove him from the panel! See, Davis v. State, 560 So2d 1346 (Fla 3d DCA 1990).  The trial judge’s decision to strike the juror was affirmed by the Fourth District Court of Appeal.  In essence, the appellate court reasoned that that “in order for non-verbal behavior (like sleeping) to be a valid “race-neutral reason” for a strike the non-verbal behavior must meet the “hurdle” of either being observed by the trial court or being supported by the record.”    

What won the day for the prosecution was that the defendant’s argument did not even reach that ‘hurdle’ since the defendant did not adequately challenge the ‘factual basis’ of the prosecutor’s claim that the juror was sleeping.  Even though none of the other lawyers or the judge saw Mr. Sanders sleeping, the appellate court ruled that because of the lack of a definitive and express dispute to the prosecutor’s observation, the issue was not, in the eyes of the court, properly preserved on appeal.

In other jury news, the ABA posted an online article about a California judge, who was picked for jury duty but who seems to have forgotten that he should not have been emailing the outside world, including his fellow jurists, about his jury duty.

Judge James Oppliger of Fresno County sent four e-mails about his jury service to a group of more than 20 judges, according to stories in theFresno Bee, KFSN-TV and CBS47. “Here I am livin’ the dream, jury duty with Mugridge and Jenkins!” the two lawyers on the case, wrote Oppliger, who was selected to be jury foreman.

Oh, yes – one of the judges who received the emails was the judge presiding over the trial, who failed to mention he had received this ‘juror message’ until after the defendant was convicted of second degree murder.  The defense lawyer was, at the time of the report, considering whether to seek a new trial based on the emails.

And finally in today’s round-up of jury stories, in January of this year, the Washington Post reported on a case involving a juror who was not certain about the definition of a word he had heard in court – “lividity.”  So what did he do?  What every good juror in today’s digital age would do – he looked it up in Wikipedia that evening.

A Maryland appellate court did not think this was as innocent as the juror proclaimed.  

In throwing out the defendant’s first-degree murder conviction and ordering a new trial, the court ruled that [the juror’s] inquiry violated an Anne Arundel County judge’s order prohibiting jurors from researching the case.

So, when you get called for jury duty, keep the above principles in mind: don’t email, don’t research online and by all means – don’t close your eyes during voir dire.  You could be the next subject of a blog if you do.