Attorney Blog

Unclaimed Funds in Class Action Lawsuits Go To Charities

Thu, 22 Dec 2011 08:00:00 EST

Did you ever wonder what happened to unclaimed funds in class action settlements? Have you ever received a letter that tells you that you are entitled to some funds from a class action, but then you don’t fill out the paperwork because it is either too long or too confusing? People entitled to recover from the settlement often do not bother to fill out the paperwork to be able to receive their share. Sometimes as much as 80 percent of the settlement goes unclaimed. Until recently, the unclaimed funds reverted back to the defendants who had agreed to pay for their alleged wrongdoing.
One law firm in Painesville deserves special recognition for what they were able to do with the unclaimed funds from class actions. As part of a 52 million dollar settlement, the firm worked out an agreement that any unclaimed funds would go to more than 40 charities. As a result of this arrangement, the law firm was able to distribute over 14 million dollars in unclaimed funds to more than 40 charities. This law firm, Dworken & Bernstein Co., LPA, and its partner, Patrick J. Perotti, continue to do this in the class action lawsuits that they handle.
The distributions are made possible because of a legal doctrine known as cy pres. Cy pres comes from the French phrase, "cy pres comme possible" which means "as near as possible". In the class action lawsuits, this doctrine is used to see that unclaimed funds go to groups "as near as possible" to the people wronged in the class. The court has to approve the groups that will receive the funds.
Our hats go off to this law firm for using this doctrine to make our communities better.
　

Ben Barrett Sr. and David Miraldi Named Ohio Super Lawyers Again

Sun, 18 Dec 2011 08:00:00 EST

    Joining an elite group, Benjamin Barrett Sr. and David Miraldi were once again named Ohio Super Lawyers in the area of personal injury law. The Ohio Super Lawyer designation is limited to the top five percent of attorneys practicing in Ohio.

   The selection process is a four tier system. First, attorneys are nominated by other attorneys who have observed these attorneys in action. Next, the Super Lawyer research staff evaluates the nominee based on twelve indicators of peer recognition and professional achievement. These twelve indicators include verdicts, settlements and transactions; representative clients; experience; honors and awards; special licenses and certifications; position within a law firm; bar and other professional activity; pro bono and community service; scholarly lectures and writings; education and employment background; and other outstanding achievements.   Those attorneys who score the highest point totals in any particular practice area are asked to serve on a review board and evaluate the other nominees in their practice area. Candidates are then grouped into categories based on firm size. The attorneys with the highest totals from each category are selected.

   “Ben and I are honored to be selected again by this process,” said David Miraldi. “With so many outstanding lawyers practicing in Ohio, we appreciate this recognition very much.”

Miraldi and Barrett Employees Take Part in Christmas Toy Drive

Sun, 18 Dec 2011 08:00:00 EST

Again this Christmas season, employees at Miraldi & Barrett purchased toys and clothing for children that will be distributed through the Not Forgotten Box sponsored jointly with the Chronicle-Telegram Newspaper and the Salvation Army. Employee, Danelle Thomas-Brosky, spearheaded the toy drive, braving the crowds on Black Friday to get many of the gifts.

"This is a great program," said Ben Barrett. "We are always happy to participate in it with other businesses, individuals, and civic groups. It is a way that the community can come together over the holiday season."

Consumer Rights Will Be Weakened if HB 275 Passes

Sun, 18 Dec 2011 08:00:00 EST

Wouldn’t it be great if our Ohio legislators were interested in protecting the rights of everyday people instead of finding ways to cripple their rights? Once again legislation is finding its way through the Ohio legislature designed to hurt the little guy and benefit the business world. This new legislation would take the teeth out of Ohio’s Consumer Protection Laws.

House Bill 275 has passed the House and is being considered by the Senate. This bill adds a controversial “right to cure” provision that would make it easier for companies that cheat consumers to escape from any serious legal consequences for their misconduct.

The law would allow a company that has cheated a consumer to avoid significant damages. Under the current law, if a company is guilty of consumer fraud, it has to pay triple damages. This penalty encourages companies to deal fairly with consumers.

The new law would eliminate this provision. Instead, a company can return the money that it wrongfully took and pay a nominal fee for the consumer’s attorney fees and court costs.

A national Consumer Law Center analysis says that these proposed changes would make Ohio’s consumer laws one of the least effective in the country. Ohio’s current law is a currently a model for the country.

If you are concerned about losing more of your rights as consumers, please contact your Ohio Senator and express your displeasure. Instead of representing the interests of the people of Ohio, the legislature is catering to a special interest group. In this case, that group is thestate’s auto dealers.

Ben Barrett Sr. and David Miraldi Named Super Lawyers for 2012

Thu, 15 Dec 2011 08:00:00 EST

Benjamin Barrett Sr. and David Miraldi were once again selected as Super Lawyers for 2012. The rating process is extensive. The New Jersey Supreme Court upheld the findings of a Special Master assigned to investigate the selection process and stated:

"The Super Lawyers selection process is a comprehensive, good-faith and detailed attempt to produce a list of lawyers that have attained high peer recognition, meet ethical standards, and have demonstrated some degree of achievement in their field."

The court went on to say that the selection process was "very sophisticated, comprehensive and complex."

Ben and David are proud to be included among the group of Ohio Super Lawyers for 2012. They enjoy representing people from northern Ohio and, in particular, the Cleveland area who have been injured due to the negligence of other persons and corporations. Although their office is located in Lorain, they often meet with clients in Cleveland and Norwalk or at their homes.

Evidence that car is speeding must be proven by observation not speculation

Fri, 09 Dec 2011 08:00:00 EST

People in auto accidents often claim that the other driver was going over the speed limit. Sometimes one driver is allowed to give an opinion about the speed of the other car and sometimes he or she cannot. When will this testimony on speed be allowed?

A recent Ohio case spells this out. Ordinarily people are not allowed to give opinions unless they are experts in the field and can explain the technical reasons for their opinions. An exception to this rule is that ordinary lay witnesses can give an opinion about the speed of a car if that person had a reasonable time to observe the car and reach an opinion.

In the recent case, the defendant was pulling out of a private parking lot onto the public road. The other driver had the right of way on the public road and struck the defendant’s vehicle. The defendant wanted to testify that the other driver was speeding. However, the defendant did not see the other car until it was just 30 to 50 feet away. The court would not allow the opinion on speed because this was not sufficient time to determine the speed.

The defendant also argued that due to the skid marks and the amount of damage to the cars that the other driver had to be speeding. The court said that the defendant needed to hire an expert in accident reconstruction if the defendant wanted to take into consideration these factors.

Thus, although people in accidents can testify about speed, they have to have observed the other car for a sufficient length of time to be able to gather an opinion. I recently concluded a case where the defendant driver claimed that my client had to be speeding because he never saw him and he was a careful driver. This type of testimony will never see the light of a courtroom.

Pre-existing Conditions and How They Affect Personal Injury Claims

Fri, 04 Nov 2011 08:00:00 EST

As each of us ages, our joints (including our spine) develop arthritic changes such as bone spurs and loss of cartilage. For most of us, these changes occur gradually and the joint is not painful. When someone is involved in a car crash and a joint is injured, insurance companies are quick to blame the pre-existing arthritic change for the painful joint. They will argue that arthritic change on x-ray equals arthritis or pain in the joint.

These arguments are often persuasive to a jury. However, if the client's prior medical records show that the client did not complain of pain in that joint, the attorney can argue that this condition did not cause any symptoms. Doctors will verify that arthritic changes are often asymptomatic.

When the patient had prior pain in the joint, the inquiry becomes when did the patient last complain of the problem. The more distant in time the treatment, the easier it is to show that the arthritic changes were not a source of pain at the time of the crash. The attorney can explain that the trauma from the crash triggered an inflammatory response in the joint that in turn caused pain. This is a widely-recognized principle in medicine.

If the client had pain in the joint at the time of the car crash, the attorney must be able to demonstrate that the crash caused some demonstrable change. Sometimes a clinical exam will show damage to a ligament that was not present before the crash. If the crash caused a fracture, then this is also a verifiable injury that has exacerbated a pre-existing condition.

When x-rays or a clinical exam show no objective or verifiable changes in the condition, then the claim rises and falls with the credibility of the client. If the client is believable and does not exaggerate the difference in the condition, a jury can still find in favor of the client on an aggravation of the pre-existing condition. These are the most difficult claims upon which to make a recovery.

Things to Consider Before You Get A Dog

Tue, 01 Nov 2011 08:00:00 EST

In the United States over 4.7 million people are bitten by dogs each year. For that reason the Center for Disease Control and Prevention offers several suggestions for families before they get a dog. These recommendations are worth posting.

1     Consult with a professional (veterinarian or responsible breeder) to learn about an appropriate breed of dog for your family.
2     If a dog or its breed have a history of aggression, that dog or breed is not appropriate for household with children.
3     If it appears that one of your children is fearful or apprehensive around dogs, delay acquiring a dog.
4     Spend time with a dog before buying or adopting it.
5     Use caution when bringing a dog into the home with an infant or toddler and never leave infants or young children alone with any dog.
6    Spay/neuter virtually all dogs because this frequently reduces aggressive tendencies.
7    Do not play aggressive games with your dog, e.g. wrestling.
8    Train dog social behaviors such as rolling over to expose the tummy and relinquishing food without growling.
9    Immediately seek professional advice from veterinarians, animal behavorists, or responsible breeders if the dog develops aggressive or undesirable behaviors.

Following these steps should decrease the chances of your dog biting another family member or a third party.

Steps to Minimize the Likelihood of a Dog Attack

Mon, 31 Oct 2011 08:00:00 EST

More than 4.7 million people each year are bitten by dogs in the United States. Many of these victims are children. The Center for Disease Control and Prevention has published ten safety guidelines that set forth strategies to lessen the likelihood of a dog bite. Because children are attacked by dogs more than adults, parents should teach their children these safety rules about dealing with dogs and a dog attack.

1     Do not approach an unfamiliar dog.
2     Do not run from a dog and scream.
3     Remain motionless when appraoched by an unfamiliar dog (be still like a tree).
4     If knocked over by a dog, roll into a ball and lie still (be still like a log).
5     Do not play with a dog unless supervised by an adult.
6     Immediately report stray dogs or dogs displaying unusual behavior to an adult.
7     Avoid direct eye contact with a dog.
8     Do not disturb a dog who is sleeping, eating, or caring for puppies.
9     Do not pet a dog without allowing it to see and sniff you first.
10   If bitten, immediately report the bite to an adult.

Small Children Most Likely To Be Bitten By A Dog

Tue, 25 Oct 2011 08:00:00 EST

Dog bites continue to be a major public health concern. On average, dogs bite over 4.7 million people each year and, of these, 800,000 require medical attention.

A recent study shows that unsupervised children between the ages of 3 and 5 are most likely to be attacked by a dog. Dogs that are not generally viewed as dangerous breeds are more often than not the source of the bite. The study shows that if a dog bites once, it will usually bite again. And the second attack is often more brutal and damaging than the first one.

After a dog bites, the most important thing is for the victim to receive immediate medical attention. If a laceration occurs to the face, a plastic surgeon should be called to render the initial care. The wound must be thoroughly cleaned at the emergency room to reduce the chance of an infected site.

Ohio has laws that protect victims of dog bites. An owner or custodian of a dog is absolutely responsible for any injuries and damages caused by the dog unless the victim was trespassing on the dog owner's property, teasing or tormenting the dog, or committing a criminal act on the dog owner's property. Most homeowner insurance policies provide some liability coverage for the owners of a dog that has injured someone.

Former NFL Players File Class Action Against NFL Over Concussions

Mon, 22 Aug 2011 08:00:00 EST

Several former NFL players have filed a class action lawsuit claiming that the National Football League withheld important information about the dangers of concussions, instructed playings to hit with their heads, and failed to properly treat them for concussions. A class action is a lawsuit brought be several people on behalf of everyone in a particular class or category. In this case, the class is the individuals who have played in the NFL and have suffered head injuries.

Jim McMahon, a former Bears quarterback, and Joe Thomas, a Cleveland Browns lineman, are two of the seven people who began the lawsuit. They do this on behalf of all of the players who have sustained head injuries while playing in the NFL.

Corporations dislike class actions. One individual may not have the resources to contest the wrongdoing of a big business, but when that person's claim is joined by all others in the class, the corporation's questionable wrongdoing can be stopped.

The NFL vigorously denies the allegations. This will be an interesting case to follow.

Woman Allowed To Proceed Against The City of Lorain For Injury Sustained in Memorial Day Parade

Fri, 12 Aug 2011 08:00:00 EST

Dorothy McGuire was marching in a Memorial Day parade in Lorain, Ohio when she stepped into an uncapped monument box in the middle of the street and broke her ankle. A monument box is a lidded cast-iron container that houses a property pin. She sued the City of Lorain for failing to properly maintain the parade route. The City attempted to have the case dismissed through summary judgment.

The City of Lorain argued that it was not liable for a number of reasons. First, the city argued that Ms. McGuire was a recreational user on its property and, by statute, owners of recreational property are not liable to those who are injured on the property. The court ruled that a four lane highway does not turn into a recreational piece of property just because someone marches in a parade on Memorial Day.

The City also argued that Ms. McGuire could not prove that the city knew of the uncapped box or reasonably should have known based on the length of time the defect had existed. Although the city did not have actual knowledge of the defect, the court ruled that a jury could determine that it should have been discovered when city officials were inspecting the parade route before the parade.

The court did not address the issue of whether the open box in the middle of the road was an open and obvious condition for which Ms. McGuire should have discovered on her own. That issue will be determined after the case is sent back to the trial court.

A Doctor's Apology for A Bad Outcome Not Admissible in an Ohio Medical Malpractice Case

Wed, 10 Aug 2011 08:00:00 EST

Whenever there is an unanticipated outcome in medical care, Ohio law forbids the introduction of any evidence that the doctor apologized, offered sympathy, or expressed compassion to the family or the patient. In a recent case tried in Akron, Ohio, the defendant doctor told the family that he nicked an artery and that the action was his fault. He also told the family that he was sorry. At trial, the defendant doctor attempted to keep out all of these statements, even the admissions of fault.

The court did not allow the statements regarding his apology, but did allow testimony from the family that the doctor admitted nicking the artery, that he took full responsibility, and he had never done anything like this in his entire professional career. The court of appeals agreed that the law does allow the statements of responsibility to be considered by the jury.

Ohio is one of thirty five states that has a specific statute that keeps out statements of apologies from medical providers if the incident leads to a lawsuit and trial. Some states have laws that forbid the introduction of both apologies and admissions of fault. The court of appeals in this case ruled that Ohio's law only kept out the apology and not the admission of responsibility.

The case will likely be appealed to the Ohio Supreme Court.

Girls' Electrocution in Cornfield Is Basis of Lawsuit Against Monsanto

Mon, 08 Aug 2011 08:00:00 EST

Tragedy struck a western Illinois cornfield when two 14 year old girls were electrocuted. The first girl stepped into a puddle and then screamed as electrical current went through her body. The girl's friend tried to help her, but she too came into contact with the current and was electrocuted. The girls were working in the field to remove tassles from the corn.

Officials are investigating whether irrigation system equipment was defective and sent an electrical current through the water. A lawsuit claims that the equipment was defective and that defendant, Monsanto, was aware of problems with it. A spokesman for Monsanto denies that claim and states that Monsanto has the highest priority for the safety of its employees and contractors.

Chicago Lawyer Accused of Harassing Employee, Asking Her to Wear Swimsuit to the Office

Mon, 01 Aug 2011 08:00:00 EST

Attorney Paul Weiss, a Chicago class-action attorney, is facing new allegations that he sexually harassed employees working at his firm. Several months ago Mr. Weiss faced charges arising out of his alleged sexual harassment of six women employees, including a charge that he pulled down his pants in front of two different female employees. The Illinois Attorney Registration and Disciplinary Commission says in an amended complaint, that after a young female attorney was hired, Mr. Weiss began making comments about her appearance and suggested that she wear a swimsuit to the office.

The complaint alleges that the associate resigned because Weiss made "constant and intolerable" comments to her. Weiss continues to deny the allegations and claims that these allegations were made up because the associate was about to be fired.

In 1980, the Equal Employment Opportunity Commission produced a set of guidelines for defining sexual harassment in the workplace. One definition of sexual harassment involves unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature that has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment.

Lawyers who litigate sexual harassment claims agree that compliance with the law simply boils down to one word: respect. If the culture of the workplace is one where everyone respects the feelings of other people, sexual harassment claims usually do not develop.

Ben Barrett Sr. Is Panelist at Cleveland State Law School

Fri, 29 Jul 2011 08:00:00 EST

Benjamin Barrett Sr. returned to his alma mater, Cleveland State University John Marshall College of Law, this week to serve on a panel that discussed alternate dispute resolution in medical malpractice cases. Mediation is a meeting during which a neutral mediator attempts to get the parties to voluntarily agree to settle the lawsuit. The mediator oversees an open discussion with the parties about the strengths and weaknesses of each side's position and then is involved in the negotiation process.

Ben was joined on the panel by former Cuyahoga County judge and current private mediator, Peggy Foley Jones, and Stark County and private mediator, Jeff Wilkof. The three gave CSU law students an overview regarding mediation and arbitration as methods to resolve medical malpractice claims.

Ben's segment dealt with an attorney's preparation for mediation, including the office conference with the client prior to mediation, drafting of a mediation statement for the mediator and opposing counsel, and tactics in mediation. The panel also answered many questions posed by the students.

Although the vast majority of Ben's legal practice involves the representation of clients in medical malpractice and nursing home abuse claims, Ben does agree to serve as a private mediator for other parties approximately ten times a year. When serving as a mediator, Ben has been very successful in bringing the parties together for a voluntary settlement of the claims.

Are Frivolous Lawsuits Ruining America? You Be The Judge

Wed, 27 Jul 2011 08:00:00 EST

The message is loud and clear: "Frivolous" lawsuits are ruining America's legal system. And the infamous McDonald's coffee case is the prime example of what is wrong with America's civil justice system.

If you think you know what the McDonald's coffee case is all about, be prepared to be surprised. Until now, the media has only fed us a small part of the story. A new documentary has hit HBO this summer called Hot Coffee. This thought-provoking film tells us what this case was really about and then shows how corportate America has used this case to disarm America's legal system. Using this case as a springboard, corporate America has been able to get new laws passed that restrict the rights of everyday citizens to get adequate compensation for the wrongdoing of others. These laws are called Tort Reform.

If you would like to see how corporate America and the insurance industry has magically pulled off this disappearing act, click here to watch the trailer for the film Hot Coffee.

Then when you get the chance, please watch the full one hour version. It may change the way you think about what has happened to our legal system

David Miraldi's Article on New Challenges In Personal Injury Claims Published in The Legal Times

Tue, 26 Jul 2011 08:00:00 EST

David Miraldi's article regarding the admission of medical bills in personal injury claims was published in the The Legal Times, a publication of the Lorain County Bar Association. This article discusses the difficulties that injured persons have at trial in obtaining a jury verdict that includes the full value of their medical bills incurred in their case. The article discusses the recent Ohio Supreme Court decisions of Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6262 and Jacques v. Manton, 125 Ohio St. 3d 342, 2010-Ohio-1838 and discusses strategies to blunt the harsh impact of those decisions in negligence claims.

The article is found in Volume 6, Issue 2 of The Legal Times.

New Orleans Hospital Settles Class Action for $25 Million Dollars.

Tue, 26 Jul 2011 08:00:00 EST

When Hurrican Katrina struck in New Orleans, Memorial Medical Center was not prepared for the emergency according to a class action lawsuit filed against it. The suit contended that the hospital did not develop a proper evacuation plan or take other emergency-related steps. The hospital lost power during the hurricane and its backup generators also failed to operate, causing temperatures inside the hospital to soar and contributing to the deaths of some patients. The settlement will provide compensation to the majority of the 187 patients that were in the hospital at the time of the hurricane.

Although the hospital denied wrongdoing or liability in the settlement, the hospital agreed to pay $25 million dollars into a fund over the next two years.

Multi-Million Dollar Verdict Awarded to Family of Teen Killed by Taser

Sun, 24 Jul 2011 08:00:00 EST

A federal court jury in Charlotte, North Carolina returned a multi-million dollar verdict against Taser International for the death of a 17 year old teen after the police had used a Taser on him during a dispute in a store. The boy collapsed in the store and died shortly thereafter.

The family's lawyers presented evidence that the Taser can cause heart problems if administered near the heart. The company's animal studies showed this risk, but Taser did not warn users of this potential danger. Taser claimed that independent studies showed that its product was not dangerous if administered to the chest. Taser also defended the case by claiming that the victim had a pre-existing heart condition. The manufacturer emphasized that the victim was acting disruptively and had drugs on his possession at the time of this incident.

As in any product liability case, the issue focuses on the product and the jury was correct to zero in on whether the company had a duty to warn of this risk. The Taser gun is designed to be used by police when a suspect becomes unruly and may pose a threat to the police. The victim's behavior is not relevant to whether the product was defective due to inadequate warnings. Apparently, Taser believed that if they blamed this incident on the victim's bad behavior, they could avoid responsibility. The jury obviously focused on the product in rendering its verdict.

Changing Lineups Not Good For Baseball Teams or Lawsuits

Fri, 22 Jul 2011 08:00:00 EST

As a life-long Cleveland Indians fan, I spend far too much time watching and listening to my favorite team. This last week Cleveland's starting center fielder was placed on the disabled list. A few days later, the team starting left fielder could not play because he suffered from heat exhaustion after playing a day/night doubleheader in 90 degree plus heat. With two regulars out, the Tribe put in one of its bench outfielders who during his first at bat was plunked on the helmet with a fastball. As he was being helped to the dugout, I wondered who would take his position. The Indians manager called upon a utility infielder who throughout his career predominately played second base.

This substitution came back to haunt the Indians over the next two days. In one game, the substitute was playing so far back that he could not reach two fly balls that would have ended the opposing team's ninth inning threat. Instead, the winning runs scored and spoiled a wonderfully pitched game by the Indian's starter. In the next game, our "utility man" had trouble with a fly ball in the eighth inning that led to the opposition scoring the go-ahead runs. The next day I scanned the sports pages for some word that the Tribe's regular outfielders would be back. Wouldn't it be a shame if the Indians failed to make the playoffs because of these two losses?

So what does this have to do with the practice of law and representing injured people in negligence cases? Far too often, an attorney will advertise that he or she handles personal injury matters. The attorney's large yellow page advertisement will list personal injury and medical malpractice as areas of practice. However, many attorneys who claim to handle personal injury cases are like the Indian's utility infielder, trying to play the outfield without the ability to make the more difficult plays. These attorneys take on cases from criminal defense to domestic relations to real estate transactions. Unless an attorney handles only personal injury cases, there is a pretty good chance that a "utility" attorney will make a mistake at some point in your personal injury case. Just as in baseball, mistakes in personal injury cases always seem to come at a critical point.

Even attorneys who advertise on television, radio, and the yellow pages that they represent injured people may meet with you to discuss your case, enter into a representation agreement with you, and then transfer your case to another attorney in their firm or send you to another firm. This practice is known as "farming out" your case. Using our baseball analogy, if you are pitching, do you want an all-star playing shortstop behind you or would you be just as happy if he sat on the bench and gave his glove to the utility infielder just called up from the minor leagues? The same is true when you entrust a case to an attorney. Be sure that the attorney handling your case has vast experience with your type of case and get a commitment from that attorney that he or she will actually be the attorney handling your case. A substitute could seriously impact the result in your case.

Beware of Legislation Intended to Make Ohio Business Friendly: Kasich Was Right To Veto Water Usage Bill

Thu, 21 Jul 2011 08:00:00 EST

Ohio H.B. 231 was controversial to say the least. Ohio's legislators believed that they could make Ohio more business-friendly and attract new businesses by allowing those business to withdraw up to 5,000,000 gallons of water a day from Lake Erie and 2,000,000 gallons from streams and ground water. These legislators ignored that such widespread use of the lake's water could have a dire impact on water quality. A Columbus dispatch poll showed that 90 percent of Ohioans opposed this measure as did former governors, Robert Taft and George Voinovich.

When the lake and our environment are concerned, the legislature must act prudently. Rather than belittling the input of scientists and environmentalists, the legislators need to err on the side of caution when our scientists tell us that this water usage could have a devastating impact on future generations.

Do you notice that legislation that can hurt average Ohioans is almost always touted as pro-business or something likely to bring jobs to Ohio? This mantra is supposed to quell all opposition. Fortunately, it did not work this time.

Unfortunately, this tactic has worked time and again. Tort reform is a prime example. When the insurance industry and businesses were crying that jury verdicts were out of control, they lobbied the legislature to restrict recoveries for injured people. Again, this was to make Ohio more business-friendly and to generate more jobs. We were also promised that insurance rates would decrease because of the legislation. By the way, is anyone paying less for car insurance these days? Instead, insurance company profits have increased and injured people have fewer rights and more hurdles to jump in order to receive basic compensation for their harms and losses.

The moral of the story: beware of legislation that is promoted as pro-business. There is usually something more at stake.

Day Care Center Sued Over Toddler's Death

Tue, 19 Jul 2011 08:00:00 EST

A family is suing a day care center over the death of their 22 month old child. The boy was apparently left in a van while temperatures outside soared to over 90 degrees. The center had been open for just around a year. The workers did not have a system to log the children in and out of the van.

The day care center is closed pending investigation by state authorities.

Both day care centers and nursing homes are places where workers must always exercise great diligence. Both types of facilities care for individuals who cannot look out for their own safety.

For family members who rely on these institutions, great care must be exercised in selecting the right one for a loved one. It is important for family members to make unexpected visits to see the type of care being given to a loved one.

Benjamin Barrett Sr. and David Miraldi Named to The Top 100 Trial Lawyers By The National Trial Lawyers

Tue, 19 Jul 2011 08:00:00 EST

Both David Miraldi and Ben Barrett Sr. have been selected for the award as "The Top 100 Trial Lawyers" by The National Trial Lawyers. Membership is obtained through a special invitation and is extended only to those attorneys who "exemplify superior qualifications of leadership, reputation, influence, statute, and profile" as civil plaintiff or criminal defense trial lawyers according to the organization. The National Trial Lawyers is an organization that promotes excellence in the legal profession through practical educational programs, networking opportunities, and legal publications.

Good Sportsmanship Not Just For Women's World Cup Soccer

Mon, 18 Jul 2011 08:00:00 EST

Although it was disappointing to see the United States women lose in the finals of the Women's World Cup for soccer, I was struck by the hard play, absence of flagrant fouls, and all-around good sportsmanship displayed by both teams. When a foul was called and a player hit the turf, an opposing player was usually there with a hand to help the opponent back onto her feet. Although so much was at stake, both teams played by the rules and showed respect for their opponents. There was no trash-talking, just two teams with very skilled players doing their best to win.

It is always a pleasure when opposing attorneys show the same level of respect to each other as was demonstrated in the recent soccer tournament. In the legal world, good conduct between attorneys and litigants is called "professionalism".

When parties and attorneys are involved in a lawsuit, it is easy for tempers to flare and each side to throw obstacles in front of their opponents. However, the civil justice system is grounded upon rules known as the rules of civil procedure. Attorneys and litigants that follow these rules can achieve their goals maintaining their own self-respect and earning the respect of their opponent. Although opposing attorneys are advocates presenting one side of a dispute, attorneys still have the responsibility to conduct themselves with dignity and show simple courteousness to everyone involved in the process.

Many attorneys take their "professionalism" very seriously. Like the players in the recent world cup tournament, attorneys can fight hard for their clients but still maintain civility and be polite with their opponents and the opposing attorney. The system works best when this happens.

Dog Owners: Beware of Homeowner's Insurance Policies That Exclude Coverage for Dog Bites

Fri, 15 Jul 2011 08:00:00 EST

There was a time when a dog bit or injured someone, the dog owner's homeowners insurance policy would cover the loss, providing payment for medical expenses, future cosmetic surgery, and pain and suffering. More and more frequently, insurance companies are including exclusions in the policy that take away insurance coverage for these situations.

The most common exclusion that has been added to policies is one that excludes from coverage any claims caused by a dog that is a "dangerous" breed. This may include pit bulls, rotweilers, great danes, and other breeds customarily viewed as more dangerous.

Nationwide Insurance Company, one of the leading insurance companies in the nation, now has an exclusion that takes away coverage if the dog has bitten someone previously.

What should someone do if they own a dog and have concerns? First, contact your agent and find out what exclusions are in your policy. Look at your homeowner's policy and see what exclusions are listed in the liability coverage.

Some insurance companies will still insure you for a dangerous breed dog, but you will have to pay a higher premium. If the insurance company that insures your home will not cover your dog, there are several insurance companies who simply provide liability insurance for dog owners.

All of this makes it difficult for both dog owners and victims of dog attacks. Victims of dog attacks have a difficult time making a recovery when the dog owner does not have insurance to cover the incident. In those instances, the victim will have to make a determination if the dog owner has sufficient assets to proceed against the owner.

Minimum Auto Insurance Coverage Should Be Increased

Fri, 15 Jul 2011 08:00:00 EST

For decades, Ohio law only requires a person to have a very minimal amount of liability coverage. Under current Ohio law, a person only needs to have liability coverage of $12,500 per person and $25,000 per occurrence to cover injury claims and $7,500 to cover property damage losses. This amount is terribly inadequate.

We all know that a trip to the emergency room after a car crash can involve extensive x-rays and CT scans. It is not unusual for an emergency room bill to end up between $5,000 to $7,500. How then can coverage for $12,500 be anywhere near enough to cover someone's medical bills for perhaps a year of treatment? Even if it provides enough for medical bills, there is not enough insurance coverage to compensate the person for lost wages or pain and suffering.

Why is the legislature so reluctant to increase the minimum limits? The insurance lobby does not want the limits to be higher. When an insurance company insures a high-risk driver for the minimum coverage, the insurance company's exposure is limited to that amount. These drivers cause a lot of accidents and when they do, they are usually significant crashes. The insurance company wants to limit its exposure to $12,500, write its check, and leave the injured person in the lurch for the remainder of the bills, harms, and losses.

The legislature is once again considering raising the minimum limits for auto coverage. H.B. 278 calls for an increase in liability coverage to $20,000 per person and $40,000 per occurrence for bodily injury claims and $15,000 for property damage claims. This is still inadequate for any significant injury claim, but it is a step in the right direction.

Please contact your state representative and state senator and urge them to support H.B. 278. Enacting the bill would make the people of Ohio just a little bit safer.

Country Club Who Served Drunk Driver Responsible For Death of Person Killed by Drunk Driver

Mon, 11 Jul 2011 08:00:00 EST

A Texas jury held a country club also responsible for the death of a man killed by a drunk driver who the country club had continued to serve alcohol despite the patron being drunk. The country club continued to sell six beers to a former high school football star after he played nine holes of golf. The patron had arrived at the golf club already intoxicated and the country club employees still sold him additional beer.

The patron then got in his car and struck another motorist head on, killing the innocent driver. The man killed was a father of three, an inventor of medical devices and a Sunday school teacher.

In Ohio like, Texas, sellers and servers of alcohol can be held responsible for injuries and death caused by intoxicated patrons if the seller serves alcohol to an obviously intoxicated patron or serves an underaged person. These laws are put in place to protect the general public.

Places that serve or sell alcohol must have procedures in place to refuse patrons who appear to have had too much to drink. They must also provide training so employees can identify patrons who have had too much to drink and deal with them effectively.

Public Misled About McDonald's Coffee Case

Tue, 05 Jul 2011 08:00:00 EST

If you ask most people, they will say that the McDonald's coffee case is one of the most outrageous court cases imaginable. Most will say, "Don't people know that coffee is hot?" You will also hear, "People have to take responsibility for their own actions." They then will conclude that the jury award was absolutely ridiculous.

But what really happened in the McDonald's coffee case? Did the jury completely lose its way in ruling in favor of the plaintiff?

The 79 year old plaintiff, Stella Liebeck, had purchased coffee and was sitting in the passenger seat of her grandson's car. The car was stopped when Stella placed the cup securely between her knees and tried to remove the lid. The cup tipped over and spilled scalding hot coffee onto her lap, causing third degree burns on her legs and genital area. She required hospitalization, skin grafting, and extensive treatment.

Mrs. Liebeck sued McDonald's because McDonald's coffee was sold at a temperature much higher than what other retailers sold their coffee. McDonald's coffee was sold at a temperature of 180 to 190 degrees Fahrenheit. Coffee at this temperature will cause third degree burns in three to seven seconds. These types of burns will not heal without skin grafting and extensive treatment.

Other coffee retailers sold their coffee at temperatures that were 30 to 40 degrees cooler. In the ten years before this lawsuit, McDonald's had received 700 reports of severe burns to customers who had been burned by McDonald coffee, often times the burns in the genital area, inner thighs, and buttocks. Not only were adults being scalded and burned, but children and infants were being burned by hot coffee, sometimes by McDonald employees who carelessly spilled coffee on them.

Even though McDonald's knew that its coffee was causing serious injuries because of its higher than normal temperature, it did not change its practice. McDonald's ignored that its coffee was much more dangerous than coffee sold by other coffee retailers. At trial, McDonald's management and its attorneys scoffed at Mrs. Liebeck's claim. Mrs. Liebeck had offered to settle for $20,000, but McDonald's never offered more than $800 to her.

So why all of the publicity and uproar? Those who wanted to change the tort system used this case to convince the public as well as legislators that the civil justice system was out of control. They only told a small part of the story because they wanted the public to embrace their program of limiting damages to seriously injured people.

What most people do not know is that the jury awarded $200,000 in compensatory damages to Mrs. Liebeck and this amount was reduced by twenty percent, the percentage of negligence that they attributed to Mrs. Liebeck for opening the coffee in the stationary car. The jury's award of 2.7 million dollars in punitive damages was approximately two days of coffee revenue at McDonald's. However, the system already had in place a way to reduce punitive damage claims without tort reform. The judge reduced the punitive damages to $460,000. The parties later settled the case after the court made this reduction.

Is the McDonald's coffee case really an outrageous result? Should juries no longer be trusted to award money compensation in injury cases? You make that determination.

To learn more about this fascinating case, click here.

Partner David Miraldi to Exhibit Photographs of Russia and Egypt

Fri, 01 Jul 2011 08:00:00 EST

David Miraldi will again exhibit travel photographs at the Friend's Gallery at Kendal at Oberlin. Last year his exhibit, Images from Asia, was well-received. This summer his exhibit will feature photographs from Egypt and Russia.

David said, "I am pleased that Kendal asked me to put together another show for this summer. I enjoy working with the organizing committee and it is a thrill for me to share the photographs with others."

Several of David's photographs from last year's exhibit are featured in the Kendal on-line newsletter.

HBO Movie, Hot Coffee, Surprises Viewers and Shows Danger of Tort Reform

Fri, 01 Jul 2011 08:00:00 EST

HBO has produced an 88 minute documentary called Hot Coffee. This film tells what really happened in the infamous McDonald's coffee case. The documentary suggests that this claim was not frivolous and explains why. Besides discussing the McDonald coffee case, the documentary looks at other misunderstood verdicts.

The documentary suggests that juries are not out of control. When a big verdict results, it is usually because there was something quite wrong about the defendant's actions and the plaintiff's case had substantial merit. If we trust juries to decide death penalty cases, why can't we trust them to make accurate decisions in civil cases? The fact is that we can and we should.

Most people are shocked that the "reforms" that have been passed at the insistence of the insurance lobby and big business apply to meritorious cases and not just to frivolous cases. As the documentary points out, most people think that they will never be injured or affected by these restrictions that apply to all personal injury cases.

CPSC Urges Consumers to Stop Using phil&teds USA Clip-On Chairs

Fri, 13 May 2011 08:00:00 EST

The Consumer Product Safety Commission (CPSC) in a press release issued May 6, 2011, has urged consumers to stop using "metoo" clip-on table chairs, imported by phil&teds USA Inc. Phil&teds USA Inc., is a major retailer of children's products and is based in Fort Collins, Colorado.

The chairs in question are made of a nylon fabric seat and a metal frame that attaches to the table top using metal clamps. The chair is made in three fabric colors: red, black and navy. The clip-on chairs affected by this warning do not have plastic spacers between the table clamps and the front horizontal metal bar.

The clip-on table chairs are intended for use by infants and toddlers. They pose serious fall and amputation hazards to infants and toddlers placed in them. The affected chairs can detach from the table, causing the child to fall to the floor and posing a substantial risk of impact and head injury. The horizontal metal bar across the front of the chair can also lead to children's fingers being pinched, lacerated, crushed or amputated upon detachment from the table top.

Phil&teds has offered a repair kit that is unacceptable to the CPSC and has further refused to agree to a national recall of the hazardous product.

Not only is it reported that the product has design defects which are dangerous, but the CPSC indicates that the product instructions and marketing information conflict. The product is shown being used in ways that could cause the chair to detach from the table and instructions provided with the product do not sufficiently warn against detaching.

The CPSC would like incident or injury reports relative to this product. You can report the incident or injury at www.saferproducts.gov .

For answers to your legal questions about Dangerous and Defective Products Law call Miraldi & Barrett, Co., L.P.A. toll-free at 1-800-589-3023 or use our on-line contact form.

Ohio Father Behind 'Emily's Law' to Publicly Forgive Pharmacist

Wed, 11 May 2011 08:00:00 EST

By MedCity News - Mon May 5, 2011
Brandon Glenn, MedCityNews

"An Ohio Father whose 2-year-old daughter's 2006 death spurred the passage of "Emily's Law" is preparing to publicly forgive the pharmacist who went to prison for a medical error that led to the death. Chris Jerry, who has since started the Emily Jerry Foundation to raise awareness of medication errors, said he plans to forgive Eric Cropp."

Miraldi and Barrett Partners With ClevelandLaw.TV

Tue, 29 Mar 2011 08:00:00 EST

"I was hurt by a defective product? What should I do?" Click it. "Can a relative collect in a wrongful death case?" Click it. "My son was viciously bitten by a neighbor's pit bull. What can I do?" Click it. When people need information about their legal problems, they can find the answers at ClevelandLaw.TV, an on-line site affiliated with WEWS, Channel 5 in Cleveland, Ohio.

The Law Firm of Miraldi & Barrett is the exclusive personal injury law firm featured on ClevelandLaw.TV. Attorneys, David Miraldi and Ben Barrett, Sr. appear on hundreds of videos to provide valuable free information involving legal matters including Wrongful Death, Dangerous and Defective Products, Spinal Injuries, Construction Accidents, and Animal and Dog Bites.

"It's one of the most innovative online products available. WEWS is among the country's first television stations to offer this next-generation legal information portal and law firm directory that uses web videos featuring local attorneys to answer consumer-oriented legal　questions," says Sam Rossenwasser, WEWS Vice President and General Manager. "Local attorneys appear in hundreds of videos on ClevelandLaw.TV, which will be marketed, promoted, and optimized across multiple platforms, including organic search, WEWS TV, and newsnet5.com."

"Whether it's personal injury, bankruptcy, workers' compensation, estate planning, a car accident, a divorce or any other matter, ClevelandLaw.TV allows people to get answers for their legal questions," says attorney, David Miraldi. "Our goal　in participating in this program is to help answer consumers' questions. It gives us an opportunity to demonstrate our knowledge in our field of personal injury law. We hope that people will feel comfortable contacting us after seeing our responses to these legal questions."

"ClevelandLaw.TV provides a cutting-edge solution for both firms and consumers," Rossenwasser added. "Law firms want to reach people directly in an effective and personal manner. Consumers want to find an attorney without the hassle of searching through directories with hundreds of lawyers. Now with a simple click to ClevelandLaw.TV, consumers can get free legal information from exceptional attorneys they can see and hear and who live and work in their own community."

Ohio Legislature and Courts Favor Business Protection Over Consumer Rights

Tue, 25 Jan 2011 08:00:00 EST

Does anyone out there see the hypocrisy that is rampant in the discussions about limiting recoveries for injured people? On the one hand, businesses (and the Ohio Chamber of Commerce) seek to free businesses from regulations and standards. They say, "Let the market place determine the success of a business." Yet on the other hand, these same businesses come screaming to the legislature seeking laws that will protect them. For the last ten years, Ohio's legislature and courts have dismantled Ohio's civil justice system to allegedly create a friendly atmosphere for business.

After all of the changes wrought by these laws, Ohio is still losing jobs. The temptation will be to pass more draconian laws that strip away the rights of Ohio citizens. I can hear what business groups will say: "Let's make Ohio even friendlier to corporations. Let's protect them even more from their negligence and limit their exposure when they do harm someone." Of course, they won't use those phrases. They will say, "Let's protect them even more from frivolous lawsuits." However, the real effect of these laws will be to drastically affect legitimate, meritorious lawsuits. Almost all frivolous lawsuits are thrown out of the court system before any trial takes place, but that fact is not part of the discussion.

Ohioans - enough is enough. Look at what so-called Tort Reform passed in 2005 did for us. ( For non-lawyers -- torts is an area of law that encompasses injury claims where another party is at fault for causing the injury.) The big blow was a limit on non-economic damages. Non-economic damages are payments for pain, suffering, and inability to do things. Our legislature limits this amount in almost all cases to $250,000 or three times economic damages, but capped at $350,000.

Some of you may think this is adequate. Let me provide you with some terrible miscarriages that have occurred in my practice after the passage of tort limitation laws Both involved children. One teenage girl sustained terrible burns to her scalp due to a defective hair bleaching product. She underwent four surgeries to minimize the huge bald spot that was on the back of her head. However, she was limited to $250,000 in non-economic damages even though she had undergone incredible pain from the burns and the surgeries -- not to mention the indignity of the bald spot until the condition could be corrected. In another case, a radiologist misread an x-ray and as a result a nine year old boy has been deprived of any physical sporting activities for the rest of his life. His hip bone was eaten away because of this mistake. The boy lost much of his childhood, but this was not compensable under our new laws.

For the next few weeks, I will discuss each of the changes brought on by Tort "Reform" and show you how these laws hurt everyday people.

Miraldi and Barrett Fund Makes Donation to the Lorain County Free Clinic

Mon, 24 Jan 2011 08:00:00 EST

The law firm of Miraldi & Barrett has for many years had a charitable fund that is part of the Community Foundation of Lorain County. This year the Miraldi & Barrett Fund along with other similar charitable funds have made a significant contribution to the Lorain County Free Clinic.

The Lorain County Free Clinic provides free health care and referrals for unemployed or low-income individuals between the ages of 19 and 65 who are not eligible for Medicaid or Medicare. The Clinic reports that a conservative estimate of the value of medical care donated last year was $3 million and an additional $1.3 million was donated in lab costs and imaging and specialty tests.

Miraldi & Barrett is proud to contribute to this very worthwhile organization that serves Lorain County residents who are without health insurance.

Miraldi & Barrett Employees Contribute to Christmas Toy Drive

Tue, 28 Dec 2010 08:00:00 EST

Miraldi and Barrett has again contributed toys to The Not-Forgotten Box. The program is sponsored by The Chronicle-Telegram and the Salvation Army. At locations throughout Lorain County, people can drop off unwrapped toys that will later be delivered to children ranging in ages from several months to 14 years of age.

Last year the program collected 12,553 toys and helped nearly 1,000 families have a brighter holiday. Parents and guardians of the children gather at one location and select toys, books, games, and sports items that are appropriate for their children.

Ben Barrett and David Miraldi Named Super Lawyers Again

Mon, 13 Dec 2010 08:00:00 EST

Both Benjamin F. Barrett Sr. and David Miraldi have again been selected as Ohio Super Lawyers in 2011. Super Lawyers recognizes outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Ben and David were named Ohio Super Lawyers in the field of plaintiff personal injury law.

Super Lawyers selects attorneys using a rigorous process. The attorneys are nominated by their peers and then evaluated by other attorneys and through objective research. Each candidate is evaluated upon twelve criteria that touch upon peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.

After the list is completed, it can be used as a resource for attorneys and consumers searching for competent legal counsel who have a track record of achieving outstanding results.

Insurance companies' surveillance of social networking site

Fri, 12 Nov 2010 08:00:00 EST

Persons who belong to a public social networking account such as FaceBook, MySpace, YouTube, Twitter, Google Buzz, etc., should close that account until their case is resolved.

If a person is unwilling to do so, he or she has to be aware that whatever is written and posted may fall into the hands of the insurance company defending the claim. Most insurance companies are obtaining this information and usually without the accountholder's knowledge or permission. Persons who have such sites should immediately verify that all the settings are on PRIVATE (the highest setting possible) and nothing is public. Even at the highest privacy settings, claimants should not post anything that they would not want to be public. It is wise not to allow anyone to become a "friend" on any of these accounts unless the accountholder absolutely knows that person.

Insurance companies get access to these accounts and sites and then use that information to claim that the person's injuries were exaggerated or even caused by something other than the incident that is the basis of the claim. Insurance companies have successfully used such information; even posts that were considered innocent, harmless joking between private "friends," to convince a judge and juries that the plaintiffs have been dishonest. Persons have to be aware that whatever is posted is fair game to be used in litigation.

Social Host Not Responsible For Death of Intoxicated Social Guest

Wed, 19 May 2010 08:00:00 EST

The defendants furnished alcoholic drinks to twenty-year old Marcos Gonzalez at their home. He became intoxicated, boisterous, and was ordered to leave. Upon leaving, Mr. Gonzalez got into his own car to drive home. Due to his intoxicated state, he lost control of his car and was killed in an automobile collision. His mother filed a wrongful death claim against the defendants, claiming that they were responsible for his death because they provided him with alcohol and forced him to leave by car.

The court dismissed the case, finding that the defendants owed no duty to a voluntarily intoxicated individual. Although Mr. Gonzalez was not of lawful age (21) for consuming alcohol, he was an adult. The court noted that the law holds that "an adult who is permitted to drink alcohol must be the one who is primarily responsible for his or her own behavior and resulting voluntary actions." This rule applies even to an underaged drinker who has attained the age of majority.

Under Ohio law, a person’s decision to drink and drive is called "a primary assumption of the risk." Under this doctrine, the person’s voluntary decision to expose himself or herself to an obvious danger, relieves any other person from any duty to protect that individual. The court rejected the claim that the defendants forced Mr. Gonzalez to drive his car while he was drunk. The court reasoned that the defendants did not put a gun to Mr. Gonzalez's head nor strong-arm him into his car. As a result, the court reasoned that his decision to leave by "car" was voluntary and of his own choice.

For a full account of this recent case, please click here.

COURT RULES THAT STUDENTS' ACTS DID NOT CONSTITUTE HAZING

Mon, 05 Apr 2010 08:00:00 EST

In a recent case involving a student in Lorain County, the Ninth District Court of Appeals was called upon to decide whether the local school board (Oberlin City School District) could be held liable for the sexual assualt of a student with Downs Syndrome by other students. The court decided that the boy's family could not bring a claim under the state hazing statute, but that the family could proceed against the teachers were had the duty to supervise the students when the complaint alleged that they acted recklessly in failing to keep tabs on the students.

The legislature has enacted a law involving hazing. R.C. 2903.31. This statute defines hazing as doing any act or coercing another, including the victim, to do any act of initiation that causes or creates a substantial risk of causing mental or physical harm to any person. If someone is a victim of hazing, then that person is entitled to bring a civil action aginst school administrators, faculty members, or other employees, who knew or reasonably should have known about the hazing and failed to make reasonable attempts to prevent it.

The court of appeals ruled that this statute does not apply unless the student is being initiated into some voluntary student group. It does not apply to general assaults against members of the student body by other members of the student body. There must be some voluntary club or organization to which the student was attempting to become a member before the statute applies. The students would be liable for assault, but a hazing claim would not be established against the administrators, faculty, and other employees of the school.

However, the court ruled that the family could proceed with a claim against individual school employees who were alleged to have acted recklessly in not properly supervising the students.

Claim aganst ambulance driver allowed despite emergency status

Mon, 22 Mar 2010 08:00:00 EST

The Court of Appeals for Summit County found that an action against a village's ambulance team could proceed to trial. In the case of Zivich v. Village of Northfield, an 81 year old woman was killed when her car was struck by an ambulance that had gone through a red light while transporting a patient to the hospital. The Village of Northfield, who employed the driver and his medic partner, claimed that no suit could be maintained because Northfield was immune for this incident. The Village claimed that the driver had activated the siren and lights and exercised proper care on the highway before the collision.

As a political subdivision, the Northfield was covered by a statute that states that political subdivisions are immune when their employees are engaged in a governmental function which includes providing medical, ambulance, and rescue services. However, the court noted that this statute is not absolute. A village like Northfiled can be liable in certain situations where the employee responding in an emergency acts wantonly and has not complied with the statute that requires emergency personnel to slow down as necessary for the safety of other traffic. This statute states that those driving an emergency vehicle must proceed cautiously past red lights or through stop signs and must show due regard for the safety of all persons using the streets.

In this case, there was evidence that the emergency vehicle may have been traveling 30 to 35 mph as it entered the intersection. Witnesses also stated that there were many wide, tall pine trees that obstructed vision for drivers on both streets and that the trees also obstructed the sound of the siren from vehicles approaching the intersection from a 90 degree angle.

The trial court refused to throw the case out of court when the defendant filed a motion for summary judgment. The court ruled that the case could proceed to trial because there were material facts in dispute as to the ambulance speed, the obstructing trees, and the color of the light. The court of appeals agreed with the trial court and found that a jury might conclude that the ambulance driver's conduct was actually wanton or willful misconduct.

Benjamin Barrett Sr. and David Miraldi Named Ohio Super Lawyers

Fri, 19 Mar 2010 08:00:00 EST

Both Benjamin F. Barrett Sr. and David Miraldi have been named Ohio Super Lawyers in 2010. For David, this was the first time he has been so recognized, while Ben has earned this honor for many years.

Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.

Super Lawyers is published as a special supplement in leading newspapers and city and regional magazines across the country. Super Lawyers magazine, featuring articles about attorneys named to the Super Lawyers list, is distributed to all attorneys in the state or region, the lead corporate counsel of Russell 3000 companies and the ABA-approved law school libraries.

Super Lawyers selects attorneys using a rigorous, multiphase process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The Super Lawyers selection process involves three basic steps: creation of the candidate pool; evaluation of candidates by the research department; and peer evaluation by practice area.

The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Since Super Lawyers is intended to be used as an aid in the selection of a lawyer, the organization limits the list to attorneys who can be hired and retained by the public, i.e., lawyers in private practice and Legal Aid attorneys.

Mandatory Arbitration Provisions Are Coming Under Attack

Mon, 12 Oct 2009 08:00:00 EST

Many nursing homes require residents to submit all disputes to arbitration. When the resident seeks admission to the facility, the nursing home has the individual sign a paper in which the would-be resident must give up the right to file a lawsuit and is required to submit any claim to an arbitration proceeding. The same is also true of many credit card companies. Because the credit card companies pay and hire the arbitrators, decisions have overwhelmingly favored the credit card and finance companies. One arbitration company, The National Arbitration Form, was found to have ruled in favor of the debt-collection agencies that hired it in 94% of the arbitration decisions. As a result, state officials in Minnesota accused it of deceptive business practices and serving as a pawn for the business interests.

These abuses have led Congress to consider The Arbitration Fairness Act of 2009, laws that would prohibit companies from forcing prospetive customers to waive their legal rights and agree to arbitration. This bill is under consideration and there is heavy pressure to get it passed this year.

Arbitration works best in commercial settings where both parties voluntarily agree to arbitration and both concur on the choice of the arbitrator. This is not the case in credit card applications or nursing home admissions documents where the individual has no choice but to agree to mandatory arbitration or not enter into the contract and be admitted into the facility.

Most Traffic Fatalities Occur on Rural Roads

Wed, 07 Oct 2009 08:00:00 EST

In 2008, 56% of the country's 37,261 traffic deaths occurred on rural roads even though there are more crashes in urban areas. Traffic deaths decreased last year in both urban and rural settings. High gasoline prices kept more people at home and reduced the number of accidents.

The reasons for more rural traffic deaths seems to be threefold. People drive faster on rural roads. The roads themselves are not as well-engineered, and medical response time is much slower outside of cities.

Some states are taking action to make their country roads safer. These improvements include the addition of rumble strips on both the shoulders and centerline of some roads. Montana has even engineered "over crosses" and "undercrosses" for deer, elk and bear on one highway. Many states continue to campaign for seat belt usage, particularly in rural areas.

Damage Caps in Medical Malpractice Laws Challenged

Tue, 29 Sep 2009 08:00:00 EST

Maryland and Georgia, like many states, have enacted laws that restrict a person's right to recover non-economic losses in medical malpractice claims. Supreme court judges in these two states will decide whether limits on non-economic damages will be struck down. In Georgia, the court will decide whether the $350,000 cap violates the state constitution. In Maryland, the court will decide whether the caps will only apply in cases resolved through arbitration.

In Ohio, medical malpractice claims are subject to caps of $250,000 or three times the plaintiff's economic damages subject to a maximum of $350,000. The cap is increased to $500,000 for injuries involving substantial physical deformity, loss of use of a limb, or loss of a bodily injury system. The Ohio limits are found at Ohio Revised Code Section 2323.43.

Hospitals Still Not Reporting Serious Errors

Wed, 12 Aug 2009 08:00:00 EST

NATIONWIDE REPORTING SYSTEM OF SERIOUS MEDICAL ERRORS STILL NOT IN PLACE

In November of 1999, 22 leading medical experts wrote a report called "To Err Is Human" and called upon the medical world to develop a nationwide reporting system of serious medical errors. These experts agreed that procedures could be put in place at hospitals to minimize the chance for serious medical errors. They also agreed that it was advisable for the public to know about unsafe conditions at their hospitals.

Ten years later, these recommendations have largely been ignored. The American Medical Association and the American Hospital Association vigorously opposed an attempt by President Bill Clinto to require hospitals to make public serious errors that occurred in their institutions. These two groups launched a mult-million dollar campaign against this proposal.

Instead, nothing much has changed. It is estimated that death from preventable medical injuries and infections is close to 200,000 a year.

To find out more about deadly mistakes in our hospitals, click here.

Property Owner Escapes Liability From Building Code Violations When Condition Is Open And Obvious

Thu, 30 Jul 2009 08:00:00 EST

In another disturbing application of the "open and obvious" doctrine, the Ohio Supreme Court ruled recently that a business owner who did not comply with several provisions of the Ohio Basic Building Code can escape liability for injuries on its premises if the condition is "open and obvious". In Lang v. Holly Hill Motel, Mr. and Mrs. Lang checked into the Holly Hill Motel for the night. They requested a handicapped room because Mr. Lang (age 78) was dependent upon oxygen and carried a portable oxygen tank. The motel did not have one, but assigned him to one that it claimed would only require him to climb one step. When the Langs got to the room, it actually had two steps. With Mrs. Lang’s help, Mr. Lang climbed the first step, but when they attempted to negotiate the second step, he lost his balance, fell, and fractured his hip. Mr. Lang died about three months after the fall.

Mrs. Lang sued the motel for negligence, claiming that the steps were in violation of several provisions of the Ohio Basic Building Code. The second step exceeded the height limitations in the code and the lack of a handrail was also a violation. The motel claimed that the condition was "open and obvious" and that it owed no duty to Mr. and Mrs. Lang. The motel argued that if the condition is "open and obvious", patrons such as the Langs are obligated by law to protect themselves. Mrs. Lang argued that a building code violation should be an exception to the "open and obvious" doctrine. If the motel was not negligent in this situation, Mrs. Lang argued that the motel would not be held accountable for building code violations.

Four members of the Ohio Supreme Court agreed with the motel and found that because the condition was "open and obvious", the motel was not negligent and the Langs were required to look out for themselves in this situation. As a result the Ohio Supreme Court affirmed the trial court's judgment that the case should be dismissed. Two other justices concurred in the judgment, but only because Ohio recently re-affirmed the "open and obvious" doctrine and they felt bound to follow the prior case holding. These two justices did so reluctantly and believed that the better rule would be to allow a recovery despite an "open and obvious" condition if the landowner should anticipate that patrons would be harmed despite the obviousness of the condition. These two justices also hinted that Mrs. Lang should have disputed that the condition was "open and obvious" when the incident occurred at night and the steps were uniform in color.

One justice dissented from the decision. He believed that if the building owner violated building code provisions, these violations would be sufficient to allow the injured person to proceed with the case despite the "open and obvious" defense.

For now, the defense of "open and obvious" continues to be the law and a huge impediment for injured people to hold property owners accountable for injuries caused by defects in their premises.

Ohio Supreme Court Dilutes Rights of Nursing Home Patients

Tue, 14 Jul 2009 08:00:00 EST

The Ohio Supreme Court ruled that an arbitration agreement between the nursing home and a resident that took away many of the resident’s rights was not invalid as a matter of public policy. By signing the arbitration agreement, the resident lost her right to a jury trial, the right to attorney fees, and punitive damages. The Ohio Supreme Court ruled that these provisions are enforceable if they are "voluntarily" entered into and were not pre-conditions to the nursing home’s admission process.

The 95 year old resident was brought by ambulance to the nursing home to be admitted. She was given 29 pages of documents to review and had to sign in 11 different places. The arbitration agreement itself stated that it was voluntary. It indicated that arbitration would save time and expense, but failed to point out the drawbacks of arbitration, i.e. difficulties in forcing the other party to turn over documents prior to arbitration, limited appellate review, and the expense of arbitrators.

However, a majority of the Ohio Supreme Court justices found the agreement to be valid because it was not both procedurally and substantively unconscionable. To be procedurally unconscionable, the residents would have to show that due to their age, education, intelligence, business knowledge, mental status, and emotional condition that they were disadvantaged in fully understanding the agreement or believing that they had no choice but to sign the agreement. To be substantively unconscionable, the agreement must be one-sided and favoring the nursing home over the resident.

The resident had died and could not testify regarding the factors surrounding her signing the document. The only fact on the record was that the resident was 95 years old when she signed. This was not enough to show that the agreement was procedurally unconscionable. As for substantive unconscionability, the court pointed out that both sides gave up their rights to a jury trial as well as the right to recover attorney fees or expenses from the other party.

Justice Pfeifer was the lone dissenting justice. Justice Pfeifer scoffed at the majority’s reasoning, and pointed out that this decision reduced to rubble, the Ohio Nursing Home Patients’ Bill of Rights (R.C. 3721.10, et. seq.) enacted by the Ohio General Assembly to protect nursing home residents from all types of abuses and unsafe conditions. This statute allowed nursing home residents to receive punitive damages and attorney fees when enforcing their rights. Justice Pfeifer pointed out how vulnerable the residents were and how the Ohio General Assembly recognized that they were in need of special protection. Although arbitration makes sense between two business entities, it should be outlawed in the nursing home environment where one side does not understand the implications of the agreement and would not have the abilities to negotiate another result.

Justice Pfeifer ended his dissenting opinion with these caustic remarks:

"[I]f you squint just so, you can make out what the majority identifies today: the right of the elderly to be "taken in" by nursing homes. This court’s corollary right for nursing homes is the right to say, "You signed it. Live with it! Ohio Nursing Home Patients’ Bill of Rights? You waived it! Your fundamental constitutional rights? You waived them too! And don’t forget to remind your son that we need next month’s check for $5,500 by the first."

To read the enter decision, click here.

Chinese manufacturers avoid liability for unsafe products

Wed, 01 Jul 2009 08:00:00 EST

Everywhere we look in stores, we find products made in China. What happens if one of those products is defective and someone is injured?

Lawyers all over the United States are finding out how difficult it is to hold a Chinese company accountable for defective products. Although more than half of the products found to be defective by the U.S. Consumer Product Safety Commission were manufactured in China, judgments against Chinese companies are few and far between.

There are several reasons for this. Before a Chinese company can be sued in a state court, the injured party must show that the Chinese company has sufficient contacts with the state to allow the court to hear the case.   If the court finds that there are not enough business ties between the state and the company, the court will say that the court is "without jurisdiction" to hear the case and will dismiss the Chinese company. Even if a Chinese company does have sufficient contacts so that the court retains jurisdiction over the Chinese company, and even if the plaintiff wins, it may be difficult to collect the judgment. If the Chinese company has no assets in the United States, the plaintiff would have to go to the courts of China to attempt to seize Chinese assets, a difficult and expensive process.

In Ohio, a person injured by a Chinese product may be able to recover from a United States supplier of the Chinese product. Ohio Revised Code Section 2307.78 . If the foreign manufacturer is not subject to "jursidiction" in the Ohio courts, the supplier stands in the shoes of the manufacturer and would have to pay a judgment if the injured party proved his case.

There are rumblings in Congress to make changes that would force Chinese companies to be sued in state courts. However, until Chinese companies are required to have liability insurance to cover judgments for defective products, little will change.

Study Finds That Doctors Do Not Always Report Significant Test Findings

Tue, 23 Jun 2009 08:00:00 EST

Many of us believe that if a medical test is abnormal that the doctor will notify us promptly once the results reach our doctor's office. Unfortunately, that is not always the case.

A recent study led by Dr. Lawrence Casalino of Weill Cornell Medical College found that abnormal lab or x-ray results were not always communicated to the patient. Approximately seven percent of the abnormal results were not. Practices that used electronic medical records were more likely to report adverse results than those that only had paper documents. Medical practices that used a combination of paper and computer records were the least likely to report significant abnormal results.

The study underscores how important it is for a primary care physician to have a definite protocol for this situation. The protocol should make sure that the results are directed to the responsible doctor, the doctor notes that he or she has reviewed the result, and the office staff documents that the results have been communicated to the patient. As a patient, if you do not hear back from the doctor about test results, do not assume that the test results were negative. If you have not heard within a week,
always call the office and find out for yourself.

Second Lorain County Resident Dies in Motorcycle Crash This Weekend

Mon, 22 Jun 2009 08:00:00 EST

Another Lorain County resident was killed on Sunday when his motorcycle was involved in a collision with another vehicle at State Route 58 and Walnut Drive in Amherst on Sunday, June 21, 2009. This is an occurrence that happens far too frequently. Without any sheet metal to protect them, motorcyclists are all too vulnerable when involved in a crash. All drivers need to be vigilant and be on the lookout for motorcyclists, bicyclists, and pedestrians.

U.S. Supreme Court Adds Barrier to Age Discrimination Cases

Fri, 19 Jun 2009 08:00:00 EST

Age discrimination cases now have a different standard than gender or race discrimination cases. The U.S. Supreme Court ruled in a 5-4 decision that in order to recover, an employee must show that absent the age bias, the employer would not have taken the adverse action against the employee. Before this, employees just needed to show that age along with other factors was responsible for the adverse employment situation.

In the case before the U.S. Supreme Court, the employee (age 54) claimed that because of age and other factors, he had been demoted from his post as a claims administration director to the position of a claims project coordinator. This change resulted in a decrease in his salary and stock options. Because the employee could not show that age was the overriding reason for the demotion, he could not recover.

What's Different About Our Firm?

Wed, 17 Jun 2009 08:00:00 EST

Service and response. So many attorneys forget that their number one job is to provide prompt service to their clients. If the client has a question, the attorney or a member of the staff should provide an answer quickly – that means the same day or at the latest the next day.

Do we succeed at giving our clients the service that they deserve? Just a quick scroll through the testimonial section of this website answers that question.

At Miraldi & Barrett, the client has both an attorney and a case manger handling the case. It is this same pair that responds to questions promptly and stays current about the client’s case. We respond to phone calls and e-mail messages immediately.

Knowledge. Miraldi & Barrett concentrates its practice on injuries to people caused by the negligence of others. We do not handle divorce, domestic relations, criminal, or probate cases. Both Benjamin F. Barrett Sr. and David Miraldi have been widely-recognized for their competence and knowledge in this field. Both have written and lectured on a variety of subjects dealing with negligence law.

Results. Over the years, Miraldi & Barrett has achieved outstanding results for their clients. A quick review of our case results in this website demonstrates this fact. These settlements and verdicts reflect that our firm does not give up and will persevere in some of the most daunting and difficult situations.