Artwork

[jmfryar]

Originally posted by Shapley:
Lead was put it paint at a time when it was not known of the health hazards involved. It remains safe as long as one does not eat the paint.

asbestos was not known to be a health hazard.

Corporate shilling at its best...and smoking won't give you cancer, as long as you don't inhale. Riding a motorcycle without a helmet is perfectly safe as long as your head doesn't come to a sudden stop.

The point is that you don't need to eat lead paint - it becomes absorbed through your skin. And aesbestos does cause serious health problems (don't get me started on mold though...'sick building' syndrome is coming under some serious fire)

The jury is the ultimate decision-maker - don't get mad at the professionals trying to protect their clients rights - get mad at the people who decided that the plaintiff was right.

Your legal story has so many generalities it sounds as if it didn't even happen, it's just an encapsulation of the usual gripes about lawyers. If it did in fact happen, it definately sounds as if you don't have all the details. Give me the names of the players for the one that went to court, I'll pull the case and tell you exactly what happened.

[jmfryar]

Originally posted by Marye:

Contingency fees... yes/no? [/QUOTE]

Depends...the insurance atty's probably billed by the hour, the plaintiffs atty was probably on contingency, if they were not brought on by the plaintiff's insurance company, in which case, they billed by the hour

contingency means that the attorney absorbes all costs of bringing it to trial - discovery, filing fees, experts, research, writing, everything and, if there's a win, the attorney takes a percentage of the award. If they lose, the attorney walks away with no reimbursement, eats the expenses and the client goes home owing nothing (barring extreme examples, like fraud)

This is another example of what lay-people don't understand - most attornies are not going to take on a dog of a case if they don't think they can win or at least settle - expenses to put on a good case can run 6-figures or higher, with NO chance of a return if there's no win.

And the insurer, by reccommending settlement, cut themselves out of hundreds of hours of billable...

in addition, there are a number of state statutes with regard to frivilous lawsuits, as well as the infamous Rule 11....

<small>[ 09-12-2003, 01:16 PM: Message edited by: jmfryar ]</small>

[Shapley]

Jim,

The case did happen. I publish generalities because I'm posting on a public forum, and dont' want more trouble (I did call the plaintiff a "fool" in my earlier post). It happened a few years ago.

The basic facts are this: We sold some equipment to a customer, which we simply purchased and resold as part of a larger package. The plaintiff was an employee of our customer. He bypassed the safeties, both mechanical and electrical, while performing maintenance (It happens all the time, as I'm sure anyone in industry can tell you) in order to save time. The equipment cycled, cutting off an extremity. The employee sued his employer, his employers owner, ourselves, the equipment manufacturer, & control equipment manufacturer. Various component manufacturers may also have been listed, but I cannot now recall for sure. The employer, employers owners, and ourselves settled. The equipment manufacturer I'm not sure about. The control equipment manufacturer did not, and the jury ruled against them and, presumably, everyone else still a party in the suit. Again, I've no desire to impart more information. Ours is not an isolated case.

I did not say asbestos was not a health hazard, just that it was not a known health hazard when it's use became widespread. It was used in ceiling panels and floor tiles because of its flame-retardant capabilities.

Lead, to the best of my knowledge, is not absorbed through the skin. It is used in sound abatement and readiation control extensively, and requires no special handling. It can be purchased openly. It is no longer used in water pipes, glassware, paint, or other applications where it can be injested or introduced into water supplies and become an injestion hazard.

I still have a big problem with cigarette liability suits. You don't need a warning label or a government study to tell you they're not good for you. If you're like 95% of smokers, you got sick as a dog the first time you tried one. That should have been your clue. It was enough for me.

If you burn yourself on a stove because it's not guarded, that's one issue. If you burn yourself again on the stove, that's different. You are responsible for your own actions, unless you're blonde (sorry, I was getting too serious again).

V/R
Shapley

[jmfryar]

but if there is a chemical in the stove that requires you to burn yourself beyond your free will, and the manufacturer purposely included that chemical in the stove to remove your choice whether or not to burn you, shouldn't the manufacturer be punished for doing the bad thing of including the chemical that makes people want to burn themselves?

The suit is public record...anyone can get ahold of it.

Fromt he scant details you provided, my first question is why could he access the internals of the machine while it still had power and how come the safeties could be disengaged?

There may be legitimate reasons, but then again the company did lose the case - I'd be very interested in if these are contributing factors, or if there are other issues...

[Marye]

OY! I know what contingency fees are.... you would be surprised what we in Canada know. I am not a lay person - I have worked in law a very long time.

I think you protest too much... such a lawyer er... attorney you will be.. (I am just kidding)

<small>[ 09-12-2003, 01:16 PM: Message edited by: Marye ]</small>

[jmfryar]

Originally posted by Marye:
OY! I know what contingency fees are.... you would be surprised what we in Canada know.

You may know what they are...but there's at least one other person reading all this who might not...LOL

and after watching Bowling for Columbine I do know that you don't know how to lock your doors...

Not that that's a bad thing...

[Shapley]

Jim,

All safeguards can be bypassed. Maintenance men routinely baspass them in order to speed the maintenance. Belt guards are removed and not replaced. Metal strips are placed across safety switches so that equipment can be "jogged" with panels removed. It is as common as dirt. As much ingenuity as can be placed into the design of the safeguards is expended to devise ways around them.

I can give an example from my Navy days. We routinely performed maintenance on some electrical panels. There were eight of these panels to be maintained, and they could be shut down only two at a time. The tag-out lock-out proceedure required about a half-hour for each panel during working hours, but the mainenance was generally required to be done at night. This meant that all the principles whose signatures were required for the tag-outs were asleep, adding considerably to the time required.

It was general (although unacceptable) proceedure to go through the tag-out for the first two panels and then simple switch the tags to the breakers for the other panels as each pair was completed. This had to be done with the knowledge of the officer on watch, as he would be aware of which panels were secured, but allowed us to bypass the engineering and reactor officers, as well as very others whose signatures would otherwise be required. A close examination of the tags would reveal that the numbers did not match, but they were rarely looked at that closely. This was, in fact, the only way the maintenance could be performed in the required timeframe without having all the principles on standby to sign off as needed. (I'm sure they were aware of what was happening as well, since they knew they should have been awakened four times if it was done properly.)

One one occasion, We were engaged in this routine. My shipmate and I had completed the second pair of panels, and I went to move the tags to secure the third pair. My shipmate, in the mean time, removed the covers from the fourth pair. As soon as I returned, I could tell by the ozone smell that the wrong panel was opened. My shipmate, however, felt the need to verify that with a test probe. As soon as he reached inside, a crackle and spark made him jump about ten feet astern.

"I could have been killed!" he yelled, as though it was my fault that he hadn't believed me when I told him it was live.

"Yes, and we'd be up all night straigtening out the paperwork if you had" I told him. He wasn't happy with my non-chalance.

By the rules, I would have had to be there when he uncovered the panels, to check the numbers to ensure that we were opening the correct panels. This would have required more time and manpower than we were allotted to do the job. In the end, we got an attaboy for doing the job on time, but I'm sure they knew the rules had to be violated in order to accomplish that feat.

V/R
Shapley

[jmfryar]

And if one of you had been injured, by your argument, "oh well"

On the other hand, it sounds like the Navy (military operates by all sorts of different rules, both legal and other) should have had in place a system that would have prevented that situation, made it safer, and easier to get approval and work in safer conditions.

Were it a private company, and it's a similar circumstance, I can well see why they should be penalized for creating an unsafe environment - in any company, anywhere, the priority is the safety and health of the people who work there above and beyond all else, including profit.

The scenario you describe is rife with issues - primary among them the fact that two workers felt that they had no option but to continue a job in hazardous conditions and saw no alternative - and could have been killed as a result.

if the situation is as you described it with your company, then I can well see why an attorney would consider taking it on, and, with other information, why a jury would decide in favor for the plaintiff. There's no excuse for creating hazardous working situations, including creating an atmosphere where the worker thinks they have no choice...this is the same thinking which led to the sexual harrasment statutes that exist now.

[Shapley]

Jim,

Obviously I do not know the situation at the company in question. We sold them equipment and they installed it. My point is not whether they had liability, but whether or not everyone else did.

The point of my Navy story was this: by bypassing the safeguards the Navy had in place, we assumed upon ourselves the liablity for our actions. Had the safeguards failed, their would have been liability upon the Navy. By our willful disregard for safety proceedures in place, we absolved the Navy of its liability. They did not put a gun to our head and say "ignore the safeguards", they set what we felt to be an unreasonable deadline, and we did what we could to comply with it. Had we failed to fulfil the deadline, we could have argued that it was unreasonable. We would not have been shot. In fact, we receieved an "attaboy" because we did what others had not done, but none of the others were the worse for not having done so. If that is interpreted as a "so, what!" attitude, so be it. Personal responsibility has to begin somewhere. Employers are not babysitters.

Similarly, the maintenance men at our customers facility were protected by laws against improper dismissal. Had the company terminated their employment for failing to meet an unreasonable deadline, they had avenues to persue for reinstatement or compensation. They assumed the liability by bypassing the safeguards.

Your discussion with Marye leads me to believe that one cannot understand complex legal questions unless one is familiar with the legal system. Yet, the courts will take a dozen people off the street (some of them blonde ) and expect them to undestand, within the period of a few days trial, complex issues of equipment design, maintenance practices, safeguards and liability. Both sides offer "experts" to tetify with conflicting data concerning issues that PhD's have difficulty with. Small wonder most juries go the simple route and "take from the rich and give to the poor".

BTW, Maybe you can help with a question that has bugged me for years:
The Constitution states that "In all cases, trials shall be held in the state in which the crime occurred, except in cases in which the crime occurs in no state, then trial shall be held in a place determined by Congress." Timothy McVeigh was tried in Colorado for blowing up a building in Oklahoma. I have yet to find a lawyer who can square that with the Constitution. There are no amendments that have altered that statement, and the trial was a Federal one, so It must be in compliance with the Constitution. Can you explain to me how that trial can be Constitutional. :confused:

If you have to rely on "penumbras" (also known as the "twilight zone" or "living breathing documents", my respect for you as a lawyer will be deminished (but not my respect for you as a gentlemen, which shall always remain high.)

V/R
Shapley

[Marye]

I don't know Shapley, sounds to me like you know of what you speak .... Are you a lawyer

[Shapley]

Marye,

No, I'm a "Sea Lawyer".

I did run for political office once, out of a desire to undo some of the damage the lawyers have done. I wasn't successful, though.

V/R
Shapley

[jmfryar]

The responsibility issue is where we will just have to differ. I, as an employer, would not have given you an attaboy - I would have terminated you on the spot, walked you to your desk and refused to have written any form of recommendation due to your actions. As a matter of fact, I would have considered criminal actions against you if you were a senior and the other member of the crew a junior.

It's a value thing - I value lives over time and profits and would never, ever want a person working for me that would value profits over lives or injury.

Besides, I would be thinking - "If I caught him cutting corners like that, what has he gotten away with that I didn't see???"

So trust is also violated when that behavior exists...

As to the liability issues, we'll have to disagree there as well. The employeer has a responsibility to and for their employees. If someone working in a clothing store assaults a customer in the dressing area, the store is responsible for that employee - period. It forces employeers to take care in who the hire and in supervising them...trust me, there are whole books written on this stuff...

With regard to the venue issue with McVeigh...

It was originally slated to be in Oklahoma City, but it was determined that he would not be able to get a fair trial there and the venue was changed. There are articles all over the web that do a far better job of explaining why and the issues that were discussed but...

The Constitution is a framework - a skeletal outline that enumerates the powers of the three branches (four if you agree with some that administrative has a life of its own) in very general terms that allows the government to stretch and grow in new, different and ever exciting ways as it tests the bounds of the document.

This is why the constitution is regarded as a "living, breathing thing" since it is not static, but open to new interpretation at just about every turn.

The part you refer to comes from the Sixth Amendment:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. "

Keeping in mind that this applies to federal courts for federal crimes...(states have no requirement that they have jury trials. That's up to each state and their constitutions)

Your question, then, is if this is the amendment, then how could they switch states?

You'll note the requirement that the jury be "impartial". This is one of those cases where the whole thing can collapse on one word.

The requirement is actually not that the members of the jury be impartial, but that the community itself be impartial. Without going into a long analysis, it was found that Oklahoma City was not going to be impartial, so they moved the trial.

[Shapley]

Jim,

Actually the part to which I refer is Article III, Section 2, Clause 3: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

I think this is pretty cut and dried. Clearly, there is no reason to think that an impartial jury cannot be found in Oklahoma, or imported into the state, in order to remain in compliance. Most Oklahomans only saw the explosion on TV, the same as Colorodans did. Not everyone in Oklahoma had a friend or relative who died there. Oklahomans are no more prone to rioting and public disorder than the citizens of any other state. The fact is, the letter of the law was violated for no good reason, and it was done so my our Federal government.

I see you had to use the "living breathing" argument. I'm sorry. Someday I'll play you a game of poker with "living, breathing" rules. We'll see if the outcome is fair.

The Constitution is clear about how to change its contents, Amendments and Constitutional Conventions. It's not meant to be easy, so that is not done haphazardly. Ignoring it, or re-interpreting it are not options.

I'll agree to disagree with you on personal responibility. The day lawyers start believing in personal responsibility is the day they start to starve. I have accepted that notion for some time now. It is true, had I been senior, I would have been responsible for the junior person.

V/R
Shapley

[jmfryar]

Sorry to burst your ever so bitter bubble, but there are a huge number of attorneys out there who are caring, considerate and who do the job not for the money, but for the love of justice and honor...if you lived near me, I'd take you out for a beer and introduce you to a dozen or two...

You don't go from being an elementary school teacher to the law without maintaining some of your humanity...

And poker and peoples lives don't equate...if I were to tell you that there is a mechanical device in use in this country that costs hundreds of thousands of lives a year, you would think it would be banned - and yet we accept that the automobile as vital and live with the repercussions...any document that is rigid and inflexible is doomed to failure - times change and the best of documents are the most flexible, that allow times to change, but maintain the beauty and structure - the constitution is one of the most brilliant things ever created, but it's due to what it DOESN'T do more than what it does say...

You said it yourself...the constitution can be amended and there was an amendment to the constitution - I refered you to it - the sixth...
why would you think that the amendment wouldn't apply would be my question...

[treebeau]

Hi readers.

Notice that good ol' treebeau has not added any input for a while now. That's because I was only having fun, not trying to debate.

Have a good weekend all.

Regards,
Tim B.

[Shapley]

I'm hardly bitter. I enjoy spirited debate.

I'm not saying the sixth amendment doesn't apply. I merely don't see that it changes the requirement. It states "by an impartial jury of the state and district wherein the crime shall have been committed". The McVeigh trial was neither in the state, nor was the jury from the state. I still fail to see compliance.

I didn't say all lawyers are greedy, nor that there aren't good ones. I know some that are. I even know judges that are fair and honorable. I know some that aren't. Overall, however, I believe that we have drifted away from the basic concepts upon which this nation was founded, and it is often (IMHO) due to a disregard for the basis of the laws and a reliance on decisions that seem to be in direct conflict with the very word of the law upon which they are supposed to be derived.

I have to cut this one short, as I have to get out the door. I hope you have a great weekend.

V/R (Which means "Very Respectfully", lest you still think I'm bitter)
Shapley

[shostakovich]

I read the following on the internet. I hope it was not the BBB jokes thread.

A couple was rushing to be married when they had a car accident. When they got to the pearly gates they explained what had happened and asked St Peter if he could arrange to have them married. Peter said they should give it much more thought.
Well, 100 years later they asked again, and again Peter stalled them.
Another 100 years went by and they asked him again, saying they were quite sure. So Peter arranged to have them married.
After another 100 they said it wasn't working. They wanted a divorce. Peter was completely flustered. "REALLY, NOW, do you realize it took 200 years to get a priest up here? How long do you think it will take for a lawyer??"
Shos

<small>[ 09-13-2003, 12:39 AM: Message edited by: shostakovich ]</small>

[Selma in Sandy Eggo]

LMREO

Thanks,

Selma

[jmfryar]

Keep in mind that McVeigh was innocent until proven guilty - the burden is on the state.

Polling done determined that a VAST majority in Oklahoma City determined that they were ready to hand him the death penalty before day one of the trial - there was no way that an impartial jury could be assembeled from the populace - venue changed, all done.

There is a balance that must (and was) considered. Is it cheaper to have the jury in one location and fly the witnesses and evidence in, or is it cheaper to put the jury (which has to be sequestered anyway) up in a hotel in Oklahoma?

They determined that it was better to move everything...that was after significant argument and evidence, as according to the Sixth amendment and whatever else was in effect.

Mcveigh got an impartial, fair and just trial, as according his rights under the Constitution.

I did some preliminary research on cases that fit your description...in the ones I have found you are missing so many facts that it's woeful - I'd hate to lose respect for you based on the fact that you're walking around with 1/10 of the story (which, if it's the case I think it is, you don't even have 1/50 of the facts - you haven't even scratched the surface...wouldn't it be good to mention that the safety's could be overridden despite the fact that there were not supposed to without power and TWO people present???)so shoot me a private email with the names of the players?

Otherwise, really, I'm gonna have to assume your story is all one sided gossip and hearsay...

[OperaTenor]

So......

HOW 'BOUT THAT CLARA SCHUMANN?!!