It was reported this week that the Center for Auto Safety has asked Ford Motor Company to recall all of its Explorer SUVs because of concerns about carbon monoxide poisoning.  While stating that its vehicles are safe, Ford has offered free inspections and repairs to deal with any potential problems.  But the National Highway Traffic Safety Administration is investigating thousands of complaints about possible problems with exhaust getting into these vehicles and the Austin, Texas police department has sidelined over four hundred Explorers because of these concerns.

Carbon monoxide poisoning is not a new phenomenon.  Sometimes called the silent killer, carbon monoxide is a tasteless, odorless gas that can make you really sick or even kill you.  Carbon dioxide is created by the combustion of carbon based fuels.  All internal combustion engines and most gas burning appliances emit carbon dioxide.  While carbon dioxide occurs naturally in the atmosphere (green plants absorb carbon dioxide and convert it to oxygen through the process of photosynthesis) it has only been through the advent of relatively modern gas and coal burning devices that this lethal substance is created in sufficient quantities that it can hurt or kill.

A long time ago, this was even a bigger problem than it is today.  Burning coal creates carbon monoxide and as we all know, coal use has diminished in favor of clean energy.  And our understanding of how appliances, cars and other devices can generate carbon dioxide has improved.  In fact, today nearly all carbon monoxide poisoning events are avoidable.  Nevertheless, this potentially fatal accident still occurs.

Jails and correctional facilities (local, state and federal) have an obligation under the law to provide adequate medical care to detainees and prisoners. A person who is in the custody and control of a detention facility obviously is not free to seek medical care and must rely upon the facility to provide adequate medical care. When they fail to do so, and that failure causes harm, liability may arise.

The duty owed to inmates depends on the nature of the claim as well as the status of the inmate or detainee.  For example, when improper or inadequate medical care is provided, a person who suffers harm may have a state law medical negligence claim as well as a federal constitutional claim. Under the Eighth Amendment to the US Constitution, convicted prisoners have a right to be free from “cruel and unusual punishment.”  The United States Supreme Court has held that the Eighth Amendment bars “deliberate indifference to serious medical needs of prisoners,” which would constitute the unnecessary and wanton infliction of pain.  Estelle v. Gamble, 429 U.S. 97 (1976).

In cases involving pre-trial detainees, the obligation to provide medical care arises from the due process guarantees of the Fourteenth Amendment. The U.S. Supreme Court has held that the failure to provide such care amounts to a form of punishment imposed on persons not convicted of a crime, which is impermissible.  Bell v. Wolfish, 441 U.S. 520 (1979).

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Cell Phone Distraction

In the United States, over 35,000 people died in motor vehicle accidents in 2015 alone. Currently, cell phone distractions are causing accidents in epic proportions. The National Safety Council’s Annual Injury and Fatality Report found that one out of every four accidents was caused by drivers distracted due to cell phone usage. While a study from Cambridge Mobile Telematics (CMT) found over half of all automotive accidents in the United States, a full 52%, occurred due to some form of cell phone distraction.

The automotive industry has attempted to curtail cell phone related accidents by introducing voice-to-text applications and hands-free cell phone options in new vehicles. However, these attempts to make cell phone usage safer in vehicles may be in vain. A study performed by the Texas A&M Transpiration Institute found that there is no evidence, at this point, to prove that voice-to-text applications offer real safety advantages over manual texting. Driver response times were significantly delayed regardless of whether the individual was manually texting or using a voice to text application. While the individual felt safer using the voice to text application, the driver’s performance suffered equally for both methods.

photo_10166_20090419-150x150You pay your insurance premiums for years, on time, every month, every year.  When you pay your premiums, you hope you never need your insurance because that means something bad has happened – a car wreck, a tree has fallen on the home, a water pipe has burst and flooded your home, a hurricane has wrecked your home, an illness or death has struck your family.  Yet you take comfort in knowing that your insurance company will uphold their end of the bargain and pay your claim when tragedy does strike.  Unfortunately, many Alabamians have found out the hard way that insurance companies don’t always uphold their end of the bargain.  Despite paying premiums for years, people are sometimes left stranded by their insurance companies when they need them most.  Fortunately the law has a way to handle this situation, though it is often not easy or quick.

In Alabama there are two causes of action against insurance companies when they wrongfully deny a claim.  You can sue for breach of contract, and you can sue for bad faith.  Breach of contract is pretty straightforward.  You have a contract and the insurance company did not uphold their end of it.  There is good and bad news for consumers about this.  The good news is that if the claim involves your home, you get to not only ask for the claim to be paid, but you get to ask for extra damages for mental anguish and emotional distress.  These are legal terms for the aggravation, stress and hardship you have suffered by having an insurance company leave your home unrepaired.  The bad news is that claims for breach of contract for any other type of insurance are limited to simply asking for your claim to be paid.  This often leaves people out significant amounts of money or without a way to go to court because they either have to pay a lawyer to take their case to court, or it does not make sense to hire a lawyer to handle the claim if the amount is small.

Fortunately, Alabama also recognizes insurance bad faith.  Bad faith can be proven when an insurance company either refuses to investigate a claim or uses questionable methods for denying coverage.  If an insurance company makes up a reason to deny a claim or uses ambiguous language in the policy to deny a claim, they can be liable for bad faith.  Insurance policies are often drafted in ways that make it difficult for consumers to understand them.  Insurance companies are supposed to interpret their policies in such a way as to find coverage when it could possibly be available.  However, insurance companies often take advantage of the complex language in their policies to deny coverage and leave people in a real bind.  The good thing about insurance bad faith is that people can sue to have their claim paid, they can sue for mental anguish and emotional distress, and they can also sue for punitive damages to punish companies for acting against their policyholders’ interests.

Lawsuits are being filed against Monsanto alleging that its product, Roundup, causes non-Hodgkin’s lymphoma. The active ingredient in Roundup is a chemical called glyphosate. Glyphosate is a non-selective herbicide. It is toxic to both broadleaf plants and grasses. It restricts the plants from making proteins that are necessary for life.

Glyphosate was developed in about 1974. It was found to be a very effective herbicide. There are over 700 products that contain this chemical. It can be absorbed through the skin, although at very low rates. It can also be ingested if care is not taken to clean up after using it. Monsanto and other big chemical corporations have developed roundup resistant seeds. This has been a boom to agriculture because the application of roundup to resistant crops will kill the weeds without effecting the useful plants.

Because roundup is the most widely used herbicide in the world it is ubiquitous in the environment. Many of us have probably been exposed to this chemical. Roundup has been assumed to be safe. But more recently the International Agency for Research on Cancer has said that glyphosate is “probably carcinogenic.” Studies have shown that glyphosate may cause non-Hodgkin’s lymphoma.

Wikipedia defines ethics as:  A branch of philosophy that involves systemizing, defending and recommending concepts of right and wrong conduct.  Alabama citizens in general, and the Alabama legal community in particular, can take pride in the fundamental role Alabama played in the development of modern-day codes of ethics across many disciplines.

Thomas Goode Jones, a nineteenth century railroad builder, lawyer, politician and Civil War hero, wrote our nation’s first code of legal ethics, which was adopted by the Alabama State Bar Association in 1887 and the American Bar Association in 1908.  Every state bar association in the nation has now followed suit with a Code of Professional Conduct based on Jones’ original work.  Jones went on to become Governor of Alabama in 1890, and his name lives on at the Thomas Goode Jones School of Law in Montgomery, Alabama.

As drafted and revised throughout the last 150 years, ethics rules expand on the foundational and timeless Golden Rule:  Do unto others as you would have them do unto you.  The rules, through prescription and proscription, provide for truthfulness, honesty, integrity, fair treatment of colleagues, adversaries and clients alike, and respectful decorum toward the institutions of government and society at large.

Cancer kills.  In the United States, it is estimated that cancer kills 600,000 adults and 1200 children each and every year.  The good news is that cancer deaths are declining.  According to the American Cancer Society, the cancer rate for men and women declined 25% from 1991 to 2004.  That translates to 2.1 million fewer deaths in this period of time.

While this is great news, the truth is that even fewer people should have died from cancer during this period of time.  Round up, made by Monsanto, has a key ingredient called glyphosate.  The International Agency for Research on Cancer has recently announced its determination that glyphosate is “probably carcinogenic to humans”.

California has a law known as Prop 65.  This law requires California to mandate manufacturers of any cancer causing product to label those products as carcinogenic.  Based on the findings of the International Agency for Research on Cancer, California is requiring glyphosate manufacturers to label the herbicide as a carcinogen.  The question becomes which products would require labels – some worry that Round Up – the most popular product on the market with glyphosates in it – would not be required to carry a label because of its low percentage of glyphosates.  California’s current proposal is that products that have the potential to expose consumers to 1.1 milligrams of glyphosates per day would be required to have warnings but there is no guarantee that is what the final regulation will be.

ezra-jeffrey-149574-150x150It should go without saying that wet weather driving can be dangerous.  A recent analysis of available federal data shows that rain is the leading cause of weather-related driving fatalities.  Even in Alaska, rainy weather causes more fatal accidents than snow.  Unfortunately, as the wet weather continues to come, people grow accustomed to driving in it and minimize the risks of doing so.  In Alabama, especially during the tropical weather season, drivers should be extra careful when heading out on the roads.  Here are a few tips and reasons to be extra cautious.

  1. Decreased visibility – Rain on your windshield and rain in your line of sight both cause decreased visibility for drivers, making it harder to keep a proper lookout. Dangerous conditions or inattentive drivers are much harder to recognize in low visibility situations.
  2. Hydroplaning – Hydroplaning is a serious risk for auto accidents. When tires are not able to force the water away between them and the road, the vehicle begins to float on the water and the driver loses complete control of the vehicle.  The risk for hydroplaning is as high when it first starts to rain and soon after it has stopped as it is when it is pouring.  Too many people assume that hydroplaning can only occur during a heavy storm and minimize the risk after the rain has stopped.

 CONVERSION VEHICLES

                Converted vehicles and be fun and seem luxurious.  The most common type of converted vehicle is the conversion van, but conversions can also be made to limousines, campers and for special needs uses.  When a motor vehicle is manufactured, the Federal Motor Vehicle Safety Standards require that it be built so as to reasonably protect the occupants in case of a crash.  This crash worthiness requirement is met by the design and component parts of the vehicle.  All crashes involving motor vehicles produce energy, or force, which can harm the occupants if these forces get into the occupant compartment.  The design standards required by the FMVSS allow the occupants to “ride down” the forces in a crash.  The restraint system (seat belts and airbags) can be very effective in protecting people in a crash.  Likewise the sides, front and roof of a motor vehicle are all designed to absorb the energy of a crash.

Unfortunately, when motor vehicles are converted, such as in a conversion van, the vehicle can lose some of these design and manufacturing elements that are intended to protect the occupants.  For example, it is popular to replace the seats in a van with more luxurious looking captain’s chairs.  This modification can affect the efficacy of the restraint system.  It can also result in a situation where the converted and modified seating lacks the strength of the original design.  Other modifications or so-called up-grades, such as raised roofs, enlarged windows and decorative panels can also reduce the crashworthiness of the vehicle.

Monsanto Roundup Litigation Update

Roundup is a herbicide used to kill weeds that compete with agricultural crops. Glyphosate, the active ingredient in Roundup, works by inhibiting a specific enzyme required for plant growth.  By 2001, Roundup weed killer was the most-used active ingredient in American agriculture, with an estimated 85-90 million pounds used each year. In 2007, that number reached 185 million pounds annually and today, Roundup remains the most widely used herbicide in the United States and worldwide.

According to the World Health Organization (WHO), glyphosate has been linked to serious forms of cancer, including:

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