Lawyers.com Blog

The Philadelphia product liability lawyers
at Messa & Associates discovered a recent investigation released by
Consumer Reports revealing that many medical device implants are sold
with little safety testing, or no testing at all. This report raises
concerns for the safety of the millions of Americans living with
implantable medical devices in their bodies.

Under the current regulatory system, the manufacturers of a medical
device simply pay a user fee of $4,000 and submit some required
paperwork to the Food and Drug Administration (FDA). The manufacturers
are then allowed to sell their product. The investigation by Consumer
Reports included an analysis of medical research and the FDA’s
device-safety database. Interviews with patients and doctors were also
conducted. The report raised several areas of concern.

Medical Devices Are Sold Without Testing

The first finding revealed is that medical devices are often not
tested before they are released and sold on the market. Essentially,
without knowing it, patients that have a medical device implanted in
them are helping to test the product. Most likely, these people believe
that the safety and effectiveness of the product had been tested
beforehand. Secondly, there is not a systematic process in place for
the government or medical researchers to identify and explore
problematic issues with a device. Each implantable device does not have
a unique serial number. This makes it difficult for patients to be
notified if a problem is identified. Lastly, patients are left with
limited abilities to protect themselves unless changes are made to the
current system of regulating medical devices.

Four Common Medical Devices Resulting in Patient Injury and Complications

Metal Hip Implants: The FDA approved an artificial
hip manufactured by DePuy without any clinical testing. It was cleared
through the agency’s policy on “substantial equivalence” meaning that
this hip device was considered the same as and as safe as an earlier
device. These metal-on-metal hip implant devices began to fail at a
significant rate within a few years rather than lasting the expected 15
years. Crippling and debilitating injuries were reported as well as
high levels of metal ions being detected in patient’s blood. A
worldwide recall had to be issued causing many patients to undergo
revision surgeries.

Surgical Mesh: Transvaginal mesh implants were used
on hundreds of thousands of women having to undergo prolapse repair and
bladder support surgery since the early 2000s. Cases of adverse health
consequences have been reported and multiple lawsuits have been filed.
A loophole in the law allowed this product to be grandfathered in
without the need for any safety testing.

Lap-Bands: Implantable lap-bands are utilized in
patients struggling with obesity. The product, which is manufactured
and sold by Allergan, helps to constrict the size of the stomach thereby
restricting the amount of food the stomach can hold at one time. Over
time, weight loss can be achieved. These products generally require
advanced safety testing in order to obtain approval from the FDA. In
this specific case, the lap-band was granted approval after only one
clinical trial. The study included 299 participants in whom 51 percent
stated they had experienced nausea, vomiting, or both. In addition, 25
percent of the study participants had to have the bands removed prior to
the end of the three-year study due to complications or the failure to
lose weight.

Cardiac Devices: The three cardiac devices that
were discovered to have significant problems are implantable
cardioverter-defibrillators, vena cava filters, and automated external
defibrillators. More than 29,000 deaths and injuries have been reported
to the FDA in association with these medical devices.

Recommendations From The Consumers Union To Increase Patient Safety

Since nearly 17% of American adults report having some type of
implanted medical device, the concerns about the safety of these devices
and the adequacy of the approval process overseen by the FDA is
alarming. Consumers Union, which is the advocacy arm of Consumer
Reports, believes that the medical device regulatory system that is in
place does not protect patients from harm. This group has recommended
several changes to both the FDA and Congress. It is recommended that
implants and other medical devices should have to undergo the same
rigorous testing that prescription drugs do. The practice of
grandfathering new implants and devices should be banned. A “unique
identifier system” similar to a serial number should be created so that
patients could be notified when any recalls or safety issues arise as
well as the creation of a national registry. Finally, it was suggested
that the manufacturer user fees be increased allowing the FDA to have
additional financial funds to carry out their duties.

Messa & Associates – Product Liability Attorneys in Philadelphia and New Jersey

The product liability lawyers at Messa
& Associates are appalled at the recent healthcare findings of the
Consumer Reports investigation that American patient’s lives are in
jeopardy when they have a medical device implanted in their bodies. We
support the initiatives outlined by the Consumers Union, and believe
that the manufacturers of these defective and dangerous medical devices
need to be held accountable. Our Philadelphia product liability attorneys
are experienced at handling claims involving defective medical devices,
and our extremely skilled team of personal injury lawyers and medical
experts are dedicated to ensuring you receive proper compensation for
your injuries. We are committed to protecting the legal rights of those
adversely affected by defective medical devices and dangerous
pharmaceuticals. If you believe that you or a loved one has been harmed
by the implantation of a dangerous or defective medical device, contact
our Philadelphia product liability attorneys for a free consultation. Call Messa & Associates at 1-877-637-7252 or submit a free online inquiry.

Continue reading "Consumer Reports on the Safety of Medical Devices"

RCOG Publishes Revised Guidelines on Shoulder Dystocia

nospam@example.com (Joseph L. Messa) — Mon, 21 May 2012 16:28:01 -0400

Medical malpractice lawyers have recently learned that The Royal College of Obstetricians and Gynaecologists (RCOG)
will require all maternity staff undergo additional training practiced
on accurate models or mannequins to improve the effects on mothers and
their babies who are born with shoulder dystocia.

Shoulder dystocia is when the baby’s head has been
born but one or both of the shoulders becomes stuck behind the mother’s
pelvic bone, preventing the birth of the baby’s body. The condition can
cause additional birth injuries to the child, including brachial plexus
injury (BPI), a fracture of the collar bone or arm or oxygen deprivation
which can lead to brain injury resulting in severe disability or death.

In addition to birth injuries suffered by the baby, mothers are also a
risk for injury caused by shoulder dystocia. Moms can suffer hemorrhage, uterine ruptures, severe lacerations or vaginal fistula, a condition in which a fistula (a hole) develops between either the rectum and the vagina or between the bladder and vagina.

According to the revised guidelines, additional shoulder dystocia
training could help to reduce the preventable injury and ensure that
maternity staff is capable of successfully handling an emergency
situation. Researchers have reported a very low rate of hypoxic
ischemic injury if the head-to-body delivery time is less than 5
minutes. Therefore, the quicker a shoulder dystocia delivery is
managed, the less likely unnecessary additional trauma will occur.

Medical Malpractice Lawyers: Shoulder Dystocia is a Birth Injury that Requires Emergency Medical Attention

In cases when shoulder dystocia has presented during birth,
physicians and medical staff must act quickly to avoid further
complications or injury. In order to resolve shoulder dystocia and fit
the baby’s shoulders through the mother’s pelvis, a series of maneuvers
are necessary to successfully deliver the baby. In most cases,
repositioning maneuvers will resolve the shoulder dystocia and retrigger
active birth movement. However, it is important that the physician
uses the correct maneuvers as quickly as possible, usually no more than
five to six minutes, to reduce risks.

Medical Malpractice Lawyers in Philadelphia and New Jersey

The Philadelphia medical malpractice lawyers at
Messa & Associates are experienced at handling cases involving birth
and brain injuries. Our extremely skilled team of medical malpractice
attorneys and medical experts is dedicated to ensuring you receive
proper compensation for your personal injuries. If you or a loved one
has suffered a birth injury, brain injury or any other type of personal
injury as a result of negligent care received by a medical provider,
contact the medical malpractice attorneys of Messa & Associates for a
free consultation. Call toll free at 1-877-MessaLaw, or submit a free online inquiry.

Continue reading "RCOG Publishes Revised Guidelines on Shoulder Dystocia"

PASSENGER RIGHTS

nospam@example.com (Fred Schultz) — Mon, 21 May 2012 15:15:48 -0400

You buy your ticket, you pack your
bag, you navigate security and the airport itself, and you board the
plane. Before you take off, the flight
staff (we’ve written about them before) will announce to the passengers basic safety
information. They do this for a variety
of reasons, but a big one is common carrier liability. The most typical common carrier
is a person or company who carries passengers, and offers that service to the
public generally, like a bus company or an airline. This means that you are not a common carrier
when you take your family station wagon to Walley World – even though it is packed with passengers. However, if you start a company offering this
particular service, you will become a common carrier.

Essentially, the basic premise of common carrier law is that if a business invites a patron to use their service
that the business is in sole control over, such as transporting a person or
goods, or caring for a feeble person, then the business undertakes an increased
responsibility for the patron’s safety.
America has a long history of “Common Carrier” law. These cases go back
to the 1800’s when railroads were a very common
means of transportation. Common carrier
cases still exist today, including those involving airlines, trains, taxicabs, city bus and motor coach
carriers, or even cruise ships. The common carrier distinction is
critically important because in many states (including Indiana), a carrier of
passengers is held to the highest degree of care and diligence for the safety
of passengers.

The
original liability standard of care for a common carrier was strict liability – one of the
highest standards. In most instances,
common carriers are held to exercise the “highest degree of practicable care,”
while everyone else, such as individual drivers who are not common
carriers are held to a simple negligence standard, or the failure to exercise “ordinary care.” A passenger has the right to assume that a
common carrier is running the vehicle in the usual manner and that it will
perform its duty in guarding the
safety of its passengers. This means that passengers are entitled to believe
that their drivers (or pilots, captains, or conductors) are adequately
rested,
are mentally and physically
capable to operate the vehicle, are not under the
influence of intoxicants, are properly trained in the
operation of the vehicle, and are doing what they are supposed to be doing (not
texting or anything else).

In
fact, the Indiana
Supreme Court has said that while a carrier of
passengers is not an insurer of the safety of its passengers, it is required to
exercise the highest degree of care to secure their safety, and it is liable to
a passenger, who is himself without fault, for any omission or failure to
exercise this power and for the slightest neglect of duty in this respect. Not only is this
high degree of care and caution required of the carrier, but if an injury
occurs to a passenger even through a defect in the vehicle,
or from its management and control, or from anything pertaining to the service
which the company ought to control, the law will presume negligence on the part
of the company. The carrier also owes a passenger the still further duty of
warning him against danger when it is at hand, and of cautioning him against
acts of imprudence that may endanger his person. For example, if a passenger in a wheelchair
declines a seatbelt on a public transport van, the driver has a duty to warn
the passenger what could happen to them if they fall out of their wheelchair
during transport.

So, as a passenger on a common
carrier, at least in Indiana, you are entitled to assume that the company has
properly maintained the vehicle, that the driver is capable, and, while the
carrier does not absolutely insure your safety, it is required to take all reasonable
precautions to protect you from harm – including warning you about your own
actions. If there is a defect in the
vehicle, if the driver is inadequate or dangerous,
or if the carrier otherwise fails to take reasonable precautions to protect its
passengers, it will be held to this higher standard of liability.

At the end of the day, if a company
holds itself out as a transportation service, it encourages passengers to rely
on it for safe transportation from point A to point B. Therefore, passengers should be entitled to
do so.

Continue reading "PASSENGER RIGHTS"

The Myths of Marijuana in Arizona

nospam@example.com (Max N. Hanson) — Mon, 21 May 2012 12:59:19 -0400

In recent years, the subject of using marijuana has become seemingly more acceptable both through the pop culture of movies, television, and music. Even the most recent changes in the law in Arizona and other states regarding the use of medical marijuana give the subject a feeling of “it’s not that bad.” In spite of the apparent relaxation of society’s attitude towards the drug, it is important to note that possession or use of marijuana or drug paraphernalia, even in minor amounts, are still felony criminal offenses in Arizona, and the courts in this state will and do prosecute offenders accordingly.

Neighboring states around us, like California, are some of the most lenient – at least as to marijuana, allowing possession with a medical card and even treating possession of small amounts as a petty offense similar to a traffic citation. On the other hand, Arizona considers itself one of the toughest states in response to the war on drugs. Many people traveling across state lines into Arizona are more than surprised when they are pulled over and found to be in possession of marijuana and now are facing serious felony charges with the possibility of a prison sentence. If you are a medical marijuana user from another state and have a prescription, you need to realize that your authorization for use does not apply nationwide nor across the state line into Arizona and you may still face significant criminal charges in connection with the possession or use of marijuana in this state.

Facing drug charges in Arizona is tricky and can expose you to life changing consequences including incarceration, and the guidance of an experienced criminal defense attorney can be crucial in this regard. Contact the attorneys at Owens and Perkins if you or your loved ones are charged with or with any questions regarding a marijuana charge in Arizona.

San Diego Personal Injury Lawyers Discuss Area Cell Phone Citation Statistics

nospam@example.com (Daniel M. Gilleon) — Mon, 21 May 2012 12:39:28 -0400

Almost regardless of the actual group or entity that puts together
lists of leading causes of car accidents across the United States,
distracted driving is almost always at the top of that list. One of the
reasons for this consistency is that there are so many ways for a driver
to become distracted, and the advent of the age where cell phones and
hand-held devices are accessible has not helped with this ongoing
traffic problem. As such, laws have been passed intended to deal with
distracted driving specifically as it relates to the use of these
electronic devices. Unfortunately, these laws do not appear to be having
an immediate effect on the conduct of motorists.

Below you will find a brief introduction to the statistics that deal
with the number of people who have been cited in San Diego for violating
the state’s cell phone and hand-held law while driving. You will also
find a breakdown of how someone could be negligent for causing a California car accident
for this reason. Anyone who has been harmed in this manner needs to
obtain the help of experienced San Diego personal injury lawyers as soon
as possible.

Cell Phone Law Violations – San Diego Statistics

A group known as The Watchdog has been compiling statistics regarding
traffic violations that have been cited in San Diego. One such tracking
effort involves the use of cell phones and other hand-held devices
without the aid of a hands-free device, which is a violation of
California law because these products obviously distract drivers.

According to the group, nearly 20,000 citations have been written in
San Diego between the period of January 1, 2011 and March 31, 2012.
Broken down further, more than 1,300 of these citations have been
written in the city on a monthly basis since this tracking effort
started. Police of course have no way of knowing how many people
engaging in this conduct they actually catch in the act and how many
they do not.

Cell Phone Use and Negligence

When someone causes a California car accident a person who was injured in that crash files a California personal injury lawsuit
in response, the case will come down to an analysis of negligence. If
the defendant was not acting in a way consistent with how a reasonable
person would have in that situation, then it’s likely that the plaintiff
will be awarded damages that compensate for losses that include medical
costs, lost income, pain and suffering and perhaps other forms of loss
that have been and will be incurred.

If you or someone you love has been injured in a California car accident
because the other driver involved was distracted by a cell phone or
some other electronic device, you need to seek the help of San Diego
personal injury lawyers who have been fighting for the rights of those
wrongfully harmed for many years. Contact Mitchell | Gilleon today to schedule a free initial consultation.

Continue reading "San Diego Personal Injury Lawyers Discuss Area Cell Phone Citation Statistics "

Personal Injury Lawyers San Diego, Discussing Statistics Regarding Failure to Obey Traffic Signals

nospam@example.com (Daniel M. Gilleon) — Mon, 21 May 2012 12:39:04 -0400

There are many different mistakes that motorists will make as they
move around San Diego County, and anyone who has spent any time on the
local roads understands that there are nearly as many different signs
and traffic signals as there are mistakes made by drivers. As such, it
should come as no surprise that one of the most common mistakes that has
been dealt with by law enforcement in recent years involves drivers who
fail to obey these signs and signals. In addition, these mistakes can
and will cause San Diego car accidents.

Below you will find a brief overview of the statistics that relate to
the number of citations written in San Diego County over a 15-month
period for failing to obey traffic signs and signals. You will also find
a brief description of how these errors can be deemed negligent if they
cause crashes that lead to injuries or worse. Anyone who has been
harmed in this manner needs to obtain the help of experienced San Diego personal injury lawyers as soon as possible.

Failing to Obey Traffic Signs and Signals – Statistics

A public interest group known as The Watchdog has been tracking
statistics regarding different citations written by law enforcement
agencies in San Diego County. In furtherance of that effort, the group
has tracked the number of citations issued for drivers who did not obey
traffic signs and signals that include yield signs, merge signs,
flashing yellow lights and the like.

Between January 1, 2011 and March 31, 2012, police officers issued a
total of 11,837 citations to drivers who failed to obey those types of
directives designed to govern the flow of traffic. Therefore, nearly
1,000 people per month were caught making this mistake, and this data
clearly does not take into account the number of people who were not
cited for this mistake.

When someone fails to obey a traffic sign or signal, they create a
situation where any motorists in the area are forced into a position
where they must react instantly. When motorists are forced into
instinctive reactions, mistakes are made, crashes occur and people are
injured and killed. As such, when someone causes a San Diego car
accident because of this mistake, it’s likely that this driver would be
found negligent by a court if the injured person files a California personal injury lawsuit in response to such an incident.

How San Diego Personal Injury Lawyers Can Help

If someone is injured because another motorist makes this type of a
mistake, he or she needs to act quickly in order to make sure that his
or her legal rights are properly protected. This can be a difficult
challenge for someone who has been seriously injured. If you or someone
you love has been harmed in this manner, you need to seek the help of San Diego personal injury lawyers who have been fighting for their clients for many years. Contact Mitchell | Gilleon today to schedule a free initial consultation.

Continue reading "Personal Injury Lawyers San Diego, Discussing Statistics Regarding Failure to Obey Traffic Signals "

Winning Criminal Defense Jury Selection: Winning Cause Strikes With Preparation

nospam@example.com (Christian Denmon) — Mon, 21 May 2012 12:25:02 -0400

Most criminal defense lawyers will
adequately prepare the guts of the case. The will methodically organize facts
from police reports and depositions in order to prepare cross
examinations. The will prepare their
witnesses, in certain cases even the client, to stand trial. And good attorneys will have their opening
rehearsed and closing outlined well before they walk into the courtroom.

But for whatever reason, Jury
selection takes the back burner. I hear
attorneys tell me that they start “thinking” about the ideal juror the night
before the trial. They will scribble out
on a yellow pad “Burden of Proof”, “Reasonable Doubt”, “LEO Bias”, and draft a
rough outline of topics to cover. They will spend less time on the Jury
Selection than the rest of the case. In
other words, they will be ill-prepared to pick the Jury.

And this is a huge mistake.

Luckily, there is one thing you can
prepare in advance of your trial that can be used in different trials in the
future. This will help you be prepared
in jury selection, even if you could have or should have spent more time
working your questions and detailing your ideal (or must-not-have) panel.

You can create a tabbed booklet of
case law to prepare for argument with the Judge. Specifically for cause
challenges.

You can utilize the book to aid you
in argument when trying to seat your jury.
And you can flip through the book as a refresher of what questions you
need to ask to pin down panelists to get them caused.

Here is how it works: Gather up your best 10-15 voir dire
cases. These are your “go-tos”. Get some defense friendly RD, Burden of
Proof, Right to Question, Right to Ask Hypothetical Question cases.

Create a table of contents. Put a
quick 5-10 word “holding” for each case on the table of contents. Tab the
cases.

Bring three copies of this mini-book
to voir dire. Don’t be afraid to let the
Judge know you are armed with case law.

Simply put, hardly any lawyers put
case law on the record for cause challenges. They blow smoke about ” a
reasonable doubt as to the Juror’s ability to be fair and impartial” and that’s
it. This sort of argument is not very strong in front of a Judge, and the
Judge may deny the cause challenge. “So, Mr. Jones, I understand that your
entire family was killed by a drunk driver, and you vowed that you would
revenge their death in anyway possible, but I am asking you today (wink wink),
can you be fair and impartial in spit of that past”? The propsective
juror may

So, remind the Judge that the law is
on your side during Jury selection. If
you are trying to cause the panelist, immediately put the case on the
record. Open up your mini-tab book and
cite the case. Give the Judge a courtesy
copy of your case book.

Need some sample cases to get
started? A couple of quick hit cases:

·
Hypothetical question making a
correct reference to law of case may be permitted by trial Judge Pait v. State 112 So.3d 380; see also
Lavado v. State 492 So.2d 1322 (Fla.
1986)

·
‘Voir Dire should be so varied and
elaborate as to circumstances
surrounding the jury under examination in relation to the case on trial would seem to require” Lavado

·
Questioning of association with Law
Enforcement is permissible Mann v. State, 571 So.2d 551 (Fla. 3DCA 1991)(conviction
reversed where juror would give greater weight to credibility of law
enforcement officer)

·
Should have been struck for cause
when Juror said, “ I’d tend to probably lean more towards the officers” Taylor v. State, 796 So.2d 570 (Fla.
2DCA 2001)

·
Can question on anticipated defenses
Brown v. State 614 So.2d 12 (Fla 1^st DCA 1993)

·
Judge not giving you enough time? Zitnick v. State 576 So.2d 1381 (Fla
3DCA 1991)(15 Minutes in Drug Trafficking Case Unreasonable); Williams v
State, 424 So.2d 148 (Fla 5^th DCA 1982)(20 minutes in Agg Batt
case unreaonsable); Gosha v. State 534 So.2d 912 (Fla 3DCA 1988)( one to
three minutes per juror unreasonable).

·
Reasonable Doubt as to Fair and
Impartial Juror Garcia v. State 570 So.2d 1082 (Fla 3DCA 1990)(I really
don’t know if I can be fair and impartial); Gibson v. State 534 So.2d
1231 (Fla. 3DCA 1988)(“I’d like to hear the whole story”).

The wrong juror can sink your
case. You know it. And if you have not put the ideal amount of
effort in to preparing your jury selection, you need to at least be sure to cut
the jurors you know cannot sit on your Jury.
Don’t take chances. Let the Judge know you are prepared with case law.

Continue reading "Winning Criminal Defense Jury Selection: Winning Cause Strikes With Preparation"

A Rise in Sexual Harassment and Abuse Against Immigrant Farmworkers

nospam@example.com (David J. Linesch) — Mon, 21 May 2012 10:43:37 -0400

A new report from the Human Rights Watch documents an epidemic of sexual harassment and violence against female immigrant farm workers by employers. The 95-page report found that hundreds of thousands of immigrant girls and women employed as farm workers are sexually abused. While the report describes several cases of rape, stalking, fondling and vulgar language used against women, incidents are rarely reported to authorities out-of-fear of job losses or deportation.

Patricia is one of the 52 farm workers that Human Rights Watch interviewed for a new report released Wednesday, this is her story;

Patricia M. came to the U.S. from Mexico when she was 21-years-old, and found a job harvesting almonds. On her third day, the foreman took Patricia to a remote field, where she says he tied her hands with her bandanna to the grip above the truck door, he then got on top of her, stripped her naked, and raped her. Due to the fear of losing her job, Patricia kept silent, and continued to work at the same farm, “I was afraid they would put me in jail,” she said. “I was afraid they would send me back to Mexico, because I was illegal,” she states. Patricia soon found out she was pregnant, and it was then, she sought help from a social service agency.

Undocumented Immigrants are protected under the Federal and Florida law, which prohibit sexual harassment, and are entitled to workplace protection under U.S. law. In the report, Human Rights Watch states that it appears that the federal government’s interest in deporting undocumented workers often outweighs its desire to protect them from abuse. Human Rights Watch calls for strengthened legal protections for immigrant farmworkers, not only for the safety of the undocumented workers, but also to seek prosecution of those who perpetrate such abuse.

If you feel like you have been sexually harassed, please contact us.

Continue reading "A Rise in Sexual Harassment and Abuse Against Immigrant Farmworkers"

CHILDREN AREN'T GUARANTEED COLLEGE SUPPORT IF THEY MISTREAT A PARENT

nospam@example.com (Mark A. Chinn) — Mon, 21 May 2012 09:36:48 -0400

Mississippi is in the lead nationally in extending the support obligation to age 21 (instead of 18) and in requiring parents to pay for college if the child has the ability to go and the parents have the ability to pay. However, the right to go to college is not absolute. A child must show proper respect to a parent if he wishes to take advantage of the expensive opportunity of a college education. This law first evolved with a case in 1980 where a child has refused to speak to his father over the course of six years and professed hate for his father. Hambrick v. Prestwood 382 So. 2d 474 (Miss. 1980).

The recent case of Blakely v. Blakely, No. 2010-CA-01948-COA (Decided May 15, 2012) seems to increase the risk of losing college support by affirming a chancellor’s decision to deny college support to a daughter who was mad at her mother for having an affair, called her a “********,” and refused to communicate with her after her parent’s separation. The Court of Appeals rejected the Father’s argument that the child could not be blamed for being mad at her Mother for having an affair and that her anger was understandable.

FERS & CSRS Federal Disability Retirement from the Office of Personnel Management: Pain, Anxiety & Exacerbation

nospam@example.com (Robert R. McGill) — Mon, 21 May 2012 06:43:29 -0400

Medical conditions tend to "feed upon" one another. Maintaining a balanced perspective on anything is difficult when one is in pain, and the nagging, incessant presence of pain, diffuse and radiating, extending to areas and points of the body where one can no longer specify a particular area because of the widespread extension, makes it impossible to have the requisite focus and concentration necessary to perform one's job. Further, the profound fatigue which results from the daily fight against the pain, where one's energy and reserve of patience for daily social and professional encounters is expended and exhausted such that one must choose between being civil or countering the pain, is something which many cannot understand. At some point, consideration must be given to preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, from the U.S. Office of Personnel Management. Whether now, or a few weeks from a stated point, becomes an irrelevancy when one suffers from chronic pain, for the Federal or Postal employee who has endured such medical conditions already knows -- whether the doctor concedes it or not -- that one cannot continue in this manner. The physical pain, of course, only serves to exacerbate and feed upon the anxiety -- anxiety which projects future events, financial security (or insecurity), and whether and for how long one's agency or the U.S. Postal Service will look the other way as performance deteriorates and the pervasive whispering campaign by coworkers and supervisors begins. Pain of a chronic nature only invites anxiety; and when the two combine, they serve to exacerbate to an extent where an exponential result is attained, neither explained by the pain alone nor the presence of anxiety, but where the sum of the total exceeds any ability to maintain the balanced perspective needed to continue to perform the essential elements of one's job.

Sincerely, Robert R. McGill, Esquire

Commercial Lease - Negotiation Tips for the Tenant.

nospam@example.com (Philip W. Boyko) — Sat, 19 May 2012 14:03:08 -0400

The topic of this blog post could command pages and pages of single space text. My purpose is to simply mention and highlight some of the more important parts of a commercial real estate lease that should be on the tenant's radar during its negotiation of the lease with the landlord. Here they are in no particular order:

Commencement Date. If the landlord is going to be responsible for making improvements to the space before the tenant moves into the premises, then the tenant will want to make sure that the commencement date does not occur before the time the tenant is able to begin performing its normal business operations in the new space. Likewise, if the tenant is responsible for completing the improvements, he will want to take into consideration the possibility that the landlord might be responsible for delays in the completion of those improvements and that there is a lease provision allowing for an extension of the commencement date in such event. Also, the commencement date should not occur while the tenant is still paying rent on its old space.
Delay Penalties. If the landlord is responsible for completing the improvements, then a provision should be included to make the landlord responsible for the "holdover damages" the tenant may have to pay at its existing premises.
Operating Expenses. Base year should be the calendar year in which the commencement date occurs (so that the tenant will not pay for any operating expense pass-throughs during the calendar year in which the commencement date occurs). Try to exclude from the landlord's operating costs as many expenses as possible. Negotiate for a cap on increases in operating costs.
Interruption of Utilities or Services and Rent Abatement. The landlord will not give you a rental abatement without a fight. Negotiate for it, especially in the event there is a prolonged interruption.
Indemnifications. Count on the landlord's form requiring the tenant to indemnify the landlord under numerous circumstances. Delete those that go beyond situations where the tenant has control of the circumstance, or at least get the indemnification limited to the amount of the insurance the tenant is required to carry under the lease.
Use Clause. A general office use clause is generally sufficient, but your particular business may require the expansion of the use clause. What about an exclusive use provision to prevent a retail tenant from having to compete with another tenant?
Tenant Default. Although these may be the most difficult provisions to negotiate, they should be scrutinized as there are often items that can be deleted or at least revised so as not to be so onerous.

The above list is certainly not exhaustive. But it should at least be a beginning point for the tenant in its negotiations with the landlord. Be prepared to give up on your smaller revisions, but stand firm on those that can have a significant impact on future business operations.

And now the "disclaimer" (what, you thought there wouldn't be one?). Nothing in this post should be considered legal advice. Let's face it. You don't know me and I don't know you. My aim is simple - to provide the reader with some useful, but general, information about the topic. Do not rely on any information in this post without some assurance that the material is still current and reliable at the time it is read. If you want a legal opinion that has teeth,consult your personal lawyer about your particular circumstances. If you don't have a lawyer and like what you see here, perhaps you should contact my law office to determine if I might be a good fit for you. To do so, simply click on my name above and you will be directed to my website, or you can reach me by telephone at (713) 626-2221. Messages left during non-business hours will be returned no later than the next business day. When responding, please refer to this Blog No. 50.

FERS & CSRS Federal Disability Retirement from the Office of Personnel Management: Hope versus Pragmatic Assessment

nospam@example.com (Robert R. McGill) — Sat, 19 May 2012 07:22:11 -0400

Hope is a peculiarly human characteristic; it is both a motivator and an incentive; yet, an unrealistic embracing of it, without reality-based assessments, can lead to a frail sense of overwhelming despondency. Hope is the substantive element of the con-artist; for, the fraudulent plan to defraud another is based upon fostering the believer that -- though it may sound too good to be true -- the hope that human nature is good, and the results of such a scheme would reward one with lasting riches, is the thread which tugs at the unsuspecting and naive. Gambling, the Lottery -- despite the exponential odds against winning, are a testament to the human foible identified as "hope". Do animals possess it? Perhaps in some unstated, inherent way -- that the potential food source will not be as formidable as it may appear. In preparing, formulating and filing for Federal Disability Retirement benefits, whether under FERS or CSRS, from the U.S. Office of Personnel Management, it is often the sense of "hope" which leads to procrastination, a delay to the detriment of the Federal or Postal Worker. Whether the hope that the workplace environment will change; that perhaps, one day soon, a new supervisor will come along; that the medical condition will improve despite the doctor's reticence and reluctance to make eye contact when the question is asked; whether the surgery just prior to, or the multiple history of surgeries, did nothing to feed any realistic assessment of hope; whatever the reasons, yes, "hope" is a uniquely human characteristic, and indeed, that which brings us closer to the angels than the apes below. But in considering Federal Disability Retirement, hope must be combined with other human characteristics -- of pragmatism, logic, analytical assessment, and the ability to plan for the future. Hope, in and of itself, while feeding the soul, fails to feed the body; and as human beings are not quite angels, the practical needs of life must be attended to.

Sincerely, Robert R. McGill, Esquire

Continue reading "FERS & CSRS Federal Disability Retirement from the Office of Personnel Management: Hope versus Pragmatic Assessment"

Lawsuit accuses schools of age discrimination

nospam@example.com (Simon W. Johnson) — Fri, 18 May 2012 17:18:41 -0400

Lawsuit accuses schools of age discrimination

from indystar.com

http://www.indystar.com/article/20120518/LOCAL1801/120518031/Lawsuit-accuses-schools-age-discrimination

Simon W. Johnson

swj@swjlawoffice.com

Law Office of Simon W. Johnson

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