November Under Analysis Column
November 26, 2008
The Return of Gadget Boy, or When Phones Attack!
It has been a couple of years since I ventured to the tech center of the Levison Towers. The new tech administrator is a high school student named Dexter. When equipment locks up, breaks down or is generally uncooperative, Dexter gets the call. Typically, his rumbling and grumbling is only moderately less unpleasant than the equipment failure itself. Still, in a matter of moments, the device does his bidding and is humming along.
I entered his basement office to look at cell phones- the bag phone I have been carrying is finally kaput- and started a conversation. Asking for new equipment from Dexter is even less fun that having him fix something. An hour and a couple of candy bars later, however, Dex had opened up to me with the three Rs of tech mastery: Read the manual, Rant and Rave, and Reboot. Technically speaking, that is four Rs, but I was not going to correct him.
I grabbed two cell phones when Dexter turned his back. Both are great phones, but no Master of the Universe would be seen on a phone that just makes calls. My ultimate phone had to do more- one device to rule them all.
In my Gadget Boy cape and spandex tights, I staged a battle between Blackberry’s Curve and Apple’s iPhone. (Just kidding about the cape.) The Curve is the smallest ‘Berry with a full size keyboard. The iPhone is Apple’s revolutionary touch screen mobile device. No actual phones were harmed in this testing, Gentle Reader, but millions of electrons were inconvenienced.
If your next big case is coming to your inbox, you will want: Blackberry pioneered mobile email, and keep their dominance with the Curve. Although the latest iPhone closes the gap, the mighty Berry still rules the email world and the keys to the texting kingdom as well. To close the performance gap with an iPhone, you need some work arounds. (iPhone totin’ lawyers can email me for the latest.) The Curve has a blinking LED on top of the phone to let you know when new mail arrives without powering up and peeking. (Fun fact- grab your phone and check for mail. Look around you- someone will feel compelled to check theirs as well. This is called the CrackBerry Yawn.) Winner- Curve.
If your clients are thirtysomethings that love gadgets, you will want: The iPhone’s wired headset has a little microphone on one side. Squeeze this microphone and the music you are listening to skips ahead, or takes the call from your wife, reminding you to pick up her dry cleaning. New software is available over the airwaves, and there are more accessories for the little Apple that could than the Curve. Winner- iPhone.
If your clients include Greenies with no electric outlets at home, you will want: The Curve lasts days on a charge, and has a removable battery. An iPhone barely makes it past lunch, and only the 19 year olds at the Apple Store Genius bar know how to get the battery replaced. What is the chance you will need to make a call when the battery goes dead? Right. Winner- Curve.
If you get lost on the way home from work, let alone en route to out of town depositions, you will want: Both the iPhone and the Curve come with a built in GPS. If you plan on using this GPS for driving directions, the Curve gives you spoken turn by turn directions. The iPhone gives you Google maps and a list of directions to follow, which is so 90s. (Sorry, techie stuff makes me feel unduly hip. Or is it thigh?) Winner- Curve.
If you need to look up a case or phone number on the ‘net while waiting your turn in motion court, you will want: Your opponent hands you a motion with a case cite you have never seen. Hope you have the iPhone. Faster internet speed on cell networks and wifi in most metro areas and all Starbucks means web pages load as fast as on your computer. Instant answers are now yours! Winner- iPhone.
If you are a middle aged lawyer, you will want: The iPhone has a big screen, but if it isn’t big enough to read the text or website you are browsing, simply make a reverse pinch motion on the touch screen and the text or picture grows. If only law books worked that way, middle aged lawyers wouldn’t go home at night with headaches or bifocals. Winner- iPhone.
If you want to tune out the loudmouth flying next to you, you will want: Apple pioneered personal entertainment devices with the iPod. The biggest capacity iPhone will carry 16 gigs of the tunes (or movies, or photos, or podcasts) that you enjoy. It uses the same control system, and offers the same variety of entertainment you enjoy on the iPod. The Curve comes close with its removable media cards, allowing infinite storage. Both deliver good quality playback of music, but forget about movies on the Curve. Winner- iPhone, though not by as much as you might think.
The battle ends, and the judges have to tabulate their votes. While you wait, ask Santa for the phone you crave, and take one more bit of advice from Gadget Boy: Lose the belt holster. Put your phone in a pocket, and don’t take it out at dinner. Ever.
(c)2008 Under Analysis, LLC. Under Analysis is a nationally syndicated column of the Levison Group. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. Comments or criticisms about this column may be sent c/o this newspaper or directly to the Levison Group via email at comments@levisongroup.com. And if you can get him a new Storm phone to review, call collect. Even at the dinner hour.
Diabetes Drug “Avandia” linked to Heart Failure
November 26, 2008
About one million diabetic Americans take Avandia, which helps control blood sugar. This is often as part of a regimen that includes other diabetes medication. New findings suggest that this drug may cause death, rather than health. Elderly people with diabetes who took Avandia, were likely to develop congestive heart failure and more likely to die than those receiving a similar drug called Actos, researchers reported on Monday. In a surprise finding, however, patients taking Avandia (the brand name for “rosiglitazone maleate”) did not suffer more heart attacks or strokes than those taking Actos (the brand name for “pioglitazone”), researchers said.
Rosiglitazone has been the subject of considerable controversy since 2007, when an analysis of 42 published studies concluded that the drug may dramatically increase the risk of heart attacks and other cardiovascular events, compared to various other treatments. Researchers at Harvard Medical School used a database of to track over 25,000 patients for up to five years. About half were treated with rosiglitazone and half were taking pioglitazone. Death rates were 15 percent higher among patients treated with rosiglitazone, compared to those taking pioglitazone, and the incidence of congestive heart failure was 13 percent higher, the researchers found.
“Rosiglitazone was associated with greater mortality,” said Dr. Wolfgang C. Winkelmayer, assistant professor of medicine at the Harvard Medical School and first author of the study, published in The Archives of Internal Medicine. Although the current study also found no differences in heart attack and stroke rates, Dr. Winkelmayer suggested the higher death rates among patients taking rosiglitazone may be due to underlying cardiovascular disease that was never diagnosed in the elderly patients, whose average age was 78.
“In much older adults, it is possible that if they do have a stroke or myocardial infarction, they might actually die immediately and never make it to the hospital for a diagnosis, so the excess cardiac events might show up as deaths,” said Dr. Winkelmayer.
Dr. John Buse, chief of endocrinology at the University of North Carolina School of Medicine and president of the American Diabetes Association, said the new study is important but limited.
“This is about the tenth report suggesting that rosiglitazone is associated with excess cardiovascular problems,” he said. “We don’t have proof yet.”
Both the American Diabetes Association and the European Association for the Study of Diabetes have removed rosiglitazone maleate from lists of recommended treatments for type 2 diabetes. The consumer group Public Citizen went further last month, calling on the Food and Drug Administration to ban the drug and claiming that it causes liver failure, vision impairment and other serious side effects, in addition to heart problems. Dr. Sidney Wolfe, director of Public Citizen’s Health Research Group, said he hoped this study would be “the last nail in the coffin of this drug.”
“The big attraction of these drugs is that they are insulin-sensitizing drugs and forestall the time when someone would have to go on to insulin,” Dr. Wolfe added. “But with a 15 percent excess mortality over even pioglitazone, which itself is dangerous, that doesn’t seem like a very good tradeoff.” A federal scientific advisory panel that reviewed rosiglitazone maleate’s safety profile last year recommended that it remain on the market. Sales have plummeted, perhaps in response to the study.
McDonalds’ Coffee- Can you Handle the Truth?
November 12, 2008
Everytime someone wants to talk about changing our tort system, they mention the infamous “McDonalds’ Coffee Case” as evidence that the jury system is out of control. In order to boil (sorry) the facts down to a thirty second sound bite, many of the facts get omitted. This misinformation campaign by insurance companies and others isn’t designed to make coffee better. It is really focused on making citizens (who will eventually be jurors) believe all injury claims are frauds. And when jurors believe that, no injury victim can get a fair trial, which means they can’t get adequate settlements, either.
My friends at the Center for Justice and Democracy collected the data on the McDonalds’ coffee lawsuit. Let me know if it changes what you thought about the case!
THE “MCDONALD’S COFFEE CASE” AND OTHER FICTIONS
Anecdotal descriptions of a few atypical lawsuits intended to shock or amuse the public have been the cornerstone of the business community’s anti-jury advertising and public relations campaign since the 1980s. Focusing on a few rare, anecdotal cases, instead of the majority of cases that pass through the courts each year, feeds into a false and dangerous perception that the system is overflowing with frivolous lawsuits. Often such verdicts have either been thrown out or substantially reduced by trial judges or appellate courts, which is exactly how the system is supposed to work. Yet the public is given the false impression that a plaintiff received a windfall, a defendant was financially ruined, or the system failed. This is particularly irresponsible when, as is typical, cases are not cited by name or even by date so they can be checked for accuracy. When journalists or researchers do track them down, they find in virtually every situation that such cases have been misreported and misused.
The “McDonald’s coffee” case.
We have all heard it: a woman spills McDonald’s coffee, sues and gets $3 million. Here are the facts of this widely misreported and misunderstood case:
Stella Liebeck, 79 years old, was sitting in the passenger seat of her grandson’s car having purchased a cup of McDonald’s coffee. After the car stopped, she tried to hold the cup securely between her knees while removing the lid. However, the cup tipped over, pouring scalding hot coffee onto her. She received third-degree burns over 16 percent of her body, necessitating hospitalization for eight days, whirlpool treatment for debridement of her wounds, skin grafting, scarring, and disability for more than two years. Morgan, The Recorder, September 30, 1994. Despite these extensive injuries, she offered to settle with McDonald’s for $20,000. However, McDonald’s refused to settle. The jury awarded Liebeck $200,000 in compensatory damages — reduced to $160,000 because the jury found her 20 percent at fault — and $2.7 million in punitive damages for McDonald’s callous conduct. (To put this in perspective, McDonald’s revenue from coffee sales alone is in excess of $1.3 million a day.) The trial judge reduced the punitive damages to $480,000. Subsequently, the parties entered a post-verdict settlement. According to Stella Liebeck’s attorney, S. Reed Morgan, the jury heard the following evidence in the case:
By corporate specifications, McDonald’s sells its coffee at 180 to 190 degrees Fahrenheit;
Coffee at that temperature, if spilled, causes third-degree burns (the skin is burned away down to the muscle/fatty-tissue layer) in two to seven seconds;
Third-degree burns do not heal without skin grafting, debridement and whirlpool treatments that cost tens of thousands of dollars and result in permanent disfigurement, extreme pain and disability of the victim for many months, and in some cases, years
The chairman of the department of mechanical engineering and bio-mechanical engineering at the University of Texas testified that this risk of harm is unacceptable, as did a widely recognized expert on burns, the editor in chief of the leading scholarly publication in the specialty, the Journal of Burn Care and Rehabilitation;
McDonald’s admitted that it has known about the risk of serious burns from its scalding hot coffee for more than 10 years — the risk was brought to its attention through numerous other claims and suits, to no avail;
From 1982 to 1992, McDonald’s coffee burned more than 700 people, many receiving severe burns to the genital area, perineum, inner thighs, and buttocks;
Not only men and women, but also children and infants, have been burned by McDonald’s scalding hot coffee, in some instances due to inadvertent spillage by McDonald’s employees;
At least one woman had coffee dropped in her lap through the service window, causing third-degree burns to her inner thighs and other sensitive areas, which resulted in disability for years;
Witnesses for McDonald’s admitted in court that consumers are unaware of the extent of the risk of serious burns from spilled coffee served at McDonald’s required temperature;
McDonald’s admitted that it did not warn customers of the nature and extent of this risk and could offer no explanation as to why it did not;
McDonald’s witnesses testified that it did not intend to turn down the heat — As one witness put it: “No, there is no current plan to change the procedure that we’re using in that regard right now;”
McDonald’s admitted that its coffee is “not fit for consumption” when sold because it causes severe scalds if spilled or drunk;
Liebeck’s treating physician testified that her injury was one of the worst scald burns he had ever seen.
Morgan, The Recorder, September 30, 1994. Moreover, the Shriner’s Burn Institute in Cincinnati had published warnings to the franchise food industry that its members were unnecessarily causing serious scald burns by serving beverages above 130 degrees Fahrenheit.
In refusing to grant a new trial in the case, Judge Robert Scott called McDonald’s behavior “callous.” Moreover, “the day after the verdict, the news media documented that coffee at the McDonald’s in Albuquerque [where Liebeck was burned] is now sold at 158 degrees. This will cause third-degree burns in about 60 seconds, rather than in two to seven seconds [so that], the margin of safety has been increased as a direct consequence of this verdict.” Id.
Irresponsible use of anecdotal cases by “tort reform” proponents is nothing new.
The case of Charles Bigbee was the “McDonald’s coffee case” of the 1980s. Ronald Reagan described Bigbee’s case in a 1986 speech as follows: “In California, a man was using a public telephone booth to place a call. An alleged drunk driver careened down the street, lost control of his car, and crashed into a phone booth. Now, it’s no surprise that the injured man sued. But you might be startled to hear whom he sued: the telephone company and associated firms!” In fact, Bigbee’s leg was severed after a car hit the phone booth in which he had been trapped. The door jammed after he saw the car coming ‚ he tried to flee but could not. The accident left him unable to walk, severely depressed and unable to work. Because the phone company had placed the booth near a known hazardous intersection, and because the door was defective, keeping him trapped inside, he sued the phone company for compensation. Bigbee was brought to Congress to testify. He said, “I believe it would be very helpful if I could talk briefly about my case and show how it has been distorted not only by the President, but by the media as well. That is probably the best way to show that people who are injured due to the fault of others should be justly compensated for the damages they have to live with the rest of their lives.” House Committee on Banking, Finance and Urban Affairs, July 23, 1986. Charles Bigbee died in 1994 at age 52. Nader, Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America (1996).