Abbott Law Blog

The courts long ago realized that it was difficult, if not impossible, to hold foreign manufacturers liable for making defective products.  The difficulty arises from the fact that many foreign manufacturers are from countries with archaic and corrupt legal systems.  To fix the problem, U.S. Courts told retailers that if they imported foreign products they would be required to stand behind those products.

To adapt to that law, American retailers purchased insurance.  The insurance would pay any claims against the retailer due to injuries resulting from defective foreign products.  The insurance companies would often investigage the foreign manufacture and take measures to ensure that products were made so as not to injure consumers.

The Utah legislature turned that law on its head.  The Utah legislature passed a statute that gave retailers immunity in most product liability cases.  The legislature made a big mistake.  Over the past few years, chineses manufacturers have made baby formula with melamine in it, drywall that emits sulfur, toys with lead paint and most recently children’s jewelry with cadmium (a poisonous substance).

Now, more than ever, American consumers need protection from foreign products that are manufactured in a way that makes them dangerous.  The Utah legislature should repeal the law and again require retailers to deal with reputable manufacturers.

I was listening to the Enid Greene program on KSL this Friday and Enid’s commentary reminded me of just how stupid the tort reform argument is.  Enid Greene argued that doctors do not order unnecessary tests when they will earn extra money by ordering the test but that doctors frequently order unnecessary tests to avoid the possibility of getting sued.

For those of you that don’t know, Enid Greene is a co-alum of mine at the BYU law school.  She went on to become a member of congress for a short time, then was the chair of the Utah Republican party and now hosts a radio show on KSL on Saturdays.

Enid Greene is in favor of tort reform.  She consistently rants about how tort laws increase the cost of health care.  She ignores studies that show that medical malpractice lawsuits add less than 1 penny for every dollar spent on health care.  She also claims that the mere threat of medical malpractice causes doctors to perform defensive medicine, thereby increasing the cost of health care.

So, this Saturday, she starts ranting against the Health Care Reform Legislation pending before congress.  One of the provisions would prevent doctors from owning hospitals and certain other medical facilities.  The reason for this is that studies have consistently shown that the number one factor in determining the frequency at which doctors order x-rays is whether the doctor owns the x-ray machine.  Now, it is fair to argue that the health care reform bill should not restrict a doctor’s right to own property.  That argument could be made on philosophical grounds, ie., in our free society, we should not prohibit a profession from owning certain types of property.

That is not the argument raised by Enid Greene.  Her argument is that she does not believe that doctors order more MRI’s when they have an ownership interest in the MRI machine.  Doctor’s would not order unnecessary tests to improve their financial condition.  Therefore, the legislation is not necessary.

So let me summarize.  Enid Greene does not believe a doctor will order more tests when the doctor gets a direct financial benefit from the billing for the use of the equipment but she strongly believes that doctors will order unnecessary tests because the doctor is afraid of getting sued.  She argues that the government should not regulate a doctor’s ownership of certain medical equipment because it is unnecessary but a the government should take away our right to trial by jury because doctors are driving up the cost of health care to protect their own back sides.

Her hypocritical and severely flawed logic show just how stupid the tort reform argument is.

Our right to trial by jury is sacrosanct.  We should not give it up.

It looks like the medical industry is going to push tort reform in the Utah State Legislature this year.  That is no surprise since they’ve pushed it almost every year during the past 20 years.  The recurring argument they make is that doctors are being put out of business by lawsuits.  “We need tort reform to keep doctors in business.”

Here is a list of the top paying jobs in the United States.  It is taken from Forbes magazine in May 2009.  This list completely debunks the doctors’ arguments.

No. 1 Surgeons
Average Annual Pay: $206,770
One-Year Change: +8.0%
Employees in Field: 47,070
Best-Paying State: Wisconsin
The Job: Treat diseases, injuries and deformities by invasive methods,
such as manual manipulation or by using instruments and appliances

No. 2 Anesthesiologists
Average Annual Pay: $197,570
One-Year Change: +2.5%
Employees in Field: 34,230
Best-Paying State: Kentucky
The Job: Administer anesthetics during surgery or other medical
procedures.

No. 3 Orthodontists
Average Annual Pay: $194,930
One-Year Change: +5.2%
Employees in Field: 5,500
Best-Paying State: New Hampshire
The Job: Examine, diagnose and treat dental malocclusions and oral
cavity anomalies. Design and fabricate appliances to realign teeth and
jaws.

No. 4 Obstetrician and Gynecologists
Average Annual Pay: $192,780
One-Year Change: +5.0%
Employees in Field: 19,750
Best-Paying State: Wisconsin
The Job: Diagnose, treat and help prevent diseases of women, especially
those affecting the reproductive system and the process of childbirth.

No. 5 Oral and Maxillofacial Surgeons
Average Annual Pay: $190,420
One-Year Change: +6.7%
Employees in Field: 4,760
Best-Paying State: Michigan
The Job: Perform surgery on mouths and jaws.

No. 6 Internists, General
Average Annual Pay: $176,740
One-Year Change: +5.7%
Employees in Field: 46,980
Best-Paying State: Wisconsin
The Job: Diagnose and provide nonsurgical treatment of diseases and
injuries of internal organs and systems.

No. 7 Prosthodontists
Average Annual Pay: $169,810
One-Year Change: +0.3
Employees in Field: 370
Best-Paying State: New Jersey
The Job: Construct oral prostheses to replace missing teeth and other
oral structures.

No. 8 Physicians and Surgeons, All Other
Average Annual Pay: $165,000
One-Year Change: +6.3%
Employees in Field: 26,850
Best-Paying State: Minnesota
The Job: All physicians and surgeons outside of the main specialties.

No. 9 Family and General Practitioners
Average Annual Pay: $161,490
One-Year Change: +5.1%
Employees in Field: 106,210
Best-Paying State: Wisconsin
The Job: Diagnose, treat and help prevent diseases and injuries that
commonly occur in the general population.

No. 10 Chief Executives
Average Annual Pay: $160,440
One-Year Change: +6.0%
Employees in Field: 301,930
Best-Paying State: New Jersey
The Job: Determine and formulate policies and provide the overall
direction of companies or private- and public-sector organizations
within the guidelines set up by a board of directors.

No. 11 Dentists, General
Average Annual Pay: $154,270
One-Year Change: +4.9%
Employees in Field: 85,910
Best-Paying State: Alaska
The Job: Diagnose and treat diseases, injuries and malformations of
teeth and gums and related oral structures.

No. 12 Psychiatrists
Average Annual Pay: $154,050
One-Year Change: +4.4%
Employees in Field: 22,140
Best-Paying State: Nevada
The Job: Diagnose, treat and help prevent disorders of the mind.

No. 13 Pediatricians, General
Average Annual Pay: $153,370
One-Year Change: +5.6%
Employees in Field: 29,170
Best-Paying State: Kentucky
The Job: Diagnose, treat and help prevent children’s diseases and
injuries.

No. 14 Dentists, All Other Specialists
Average Annual Pay: $142,070
One-Year Change: +18.0%
Employees in Field: 4,770
Best-Paying State: Oregon
The Job: Specialist dentists excluding oral and maxillofacial surgeons,
orthodontists and prosthodontists.

No. 15 Podiatrists
Average Annual Pay: $125,760
One-Year Change: +5.0%
Employees in Field: 9,670
Best-Paying State: Idaho
The Job: Diagnose and treat diseases and deformities of the human foot.

The doctors’ argument reminds me of when Jack Paar walked off the Tonight Show on February 11, 1960.  On that show he said “I’ve made a decision about what I’m going to do. I’m leaving The Tonight Show. There must be a better way to make a living than this, a way of entertaining people without being constantly involved in some form of controversy. I love NBC [...] But they let me down.”  He then walked off the show.

Less than a month later, March 7, 1960, he returned saying, “As I was saying before I was interrupted…I believe the last thing I said was ‘There must be a better way to make a living than this.’ Well, I’ve looked…and there isn’t.’”

14 of the top 15 paying jobs in the United States are in the medical industry.  Doctors aren’t leaving for better paying jobs.  There are none.

Just had a hearing in which we represented a defendant in a mechanic’s lien case.  Our client bought the entire subdivision after after the mechanic’s lien was filed.  The plaintiff was an engineering firm that had done over $100,000 in work to get the subdivision ready for filing.   Because the general contractor and property owner did not pay the bill, the engineering firm hired a big Salt Lake City law firm, filed a mechanics lien and then filed suit to foreclose the lien.  If successful, our client would be forced to pay the engineering bill.

The statute of limitiations on these cases is only 180 days.  Because the general contractor had declared bankruptcy, the big Salt Lake City law firm thought that they were prohibited from filing the foreclosure action until after the bankruptcy was dismissed.  Accordingly, they waited more than the 180 days to file the lawsuit.

We filed a motion for summary judgment based upon the fact that the statute of limitations had run.  Because our client was a subsequent owner, our client was not liable to the engineering firm for breach of contract or unjust enrichment.  The only shot the engineering firm had against our client was to foreclose the lien.

The big Salt Lake City firm argued that the general contract was an indispensable party and therefore the statute of limitations was tolled during the bankruptcy.  We prevailed.  The judge agreed with us that the Statute of Limitations was not tolled, the lawsuit was filed late and therefore, she dismissed the case.

It’s nice to win for a client.  Beating a big Salt Lake City law firm makes it even sweeter.

Ford Motor company has announced that it is expanding its recall of certain Ford vehicles that have a faulty cruise control switch that can cause a fire.  This is the largest vehicle recall ever.  The recent expansion adds about 4.5 million vehicles to the recall.  Over 14 million vehicles have now been recalled.

The switches were sold by Texas Instruments to Ford for about $21.  They were installed in about 16 million vehicles.  Ford finally stopped using them in 2003.  The faulty switch has caused at least 550 vehicle fires.  In some cases, significant property damage has also occurred.  Vehicles parked in garages pose a significant risk to fire damage to an entire structure.

The vehicles covered by the recall include:

The recall appears to be under inclusive.  The switch, or a similar switch, was installed in 16 million vehicles.  Ford has recalled only 14 million.  This means that millions of vehicles may remain on the road and pose a significant fire risk.

Abbott & Associates is now accepting cases in which significant property damage or personal injury has been caused by a vehicle fire.  Call or click for a free consultation.

Utah raised the jurisdictional limit in small claims court to $10,000 this years.  That means that small claims courts can issue judgments for amounts up to $10,000 inclusive of attorneys fees.  Interest and costs of suit can exceed the $10,000 limit.

This makes small claims courts an attractive alternative to District Court for small cases.  Small claims cases are typically resolved within a few months whereas District Court cases can last a year or more.

Small claims courts still are not allowed to issue injunctions.  In other words, they can’t tell a person to do anythign other than pay money.  That means they aren’t good alternatives for foreclosure, quiet title, wrongful competition and other similar cases where a litigant wants a court order regarding something other than the payment of money.

As the legislative session approaches, rumors are swirling tht the two big medical malpratice insurers in Utah are going to push numerous tort reform bills this legislative session.

It may sound funny to say this, but as a personal injury lawyer, I would love to see personal injury lawsuits come to an end.

In my opinion, the best way to do this is to create a safer world.  Unfortunately, the health insurance lobby is not interested in this.  They want to prevent people from suing without making any efforts to improve safety.

Harvard recently released a study showing that medical errors cause the same number of deaths as if a 747 crashed every day.  That’s scary.  Fortunately, most doctors are great.  They are smart, nice, kind and careful.  Unfortunately, we have bad doctors in our community.  If their patients who are injured don’t have the right to sue, who will take care of them and their medical bills? (presumably medicaid and medicare will pick up the tab).  My vote is to let bad doctors pick up the tab instead of us.

Recently two pilots lost their pilot licenses for working on their laptops and overshooting an airport.  Luckily no one was hurt or killed.  I can guarantee you that a bad doctor would never lose his/her license in Utah for doing something like that and causing a patient death.  We have alcoholic doctors that go on practicing medicine year after year.  In Utah, if a doctor gets hooked on prescription narcotics and injures a patient, it is very rare for the doctor to permanently lose his/her license.

I hope the legislature doesn’t get duped into letting the malpractice insurance companies off the hook when bad doctors mess up and hurt people.  We should be running those doctors out of town, not protecting them.

According to the Centers for Disease Control and Prevention (CDC), motor vehicle accidents are the leading cause of death for people between the ages of 3 and 34 in the United States. In 2008, there were 5,811,000 police-reported traffic crashes, which killed over 37,000 people, and injured another 2,346,000. Statistics show that teens 16-19 years old are at the highest risk of being involved in a motor vehicle crash. In addition, alcohol is involved in a large number of traffic fatalities each year. Last year, almost 12,000 traffic fatalities involved drunk drivers, translating to one drunk-driving fatality every 45 minutes in 2008. The economic impact of motor vehicle crashes is also substantial, costing hundreds of billions of dollars each year.

As grave as these statistics may seem, traffic fatalities and injuries are actually on the decline in this country. Traffic fatalities in the United States decreased by almost 10% from 2007 to 2008. The number of alcohol-impaired fatalities also decreased by nearly 10% in 2008. This decrease may be attributed to recent media campaigns have helped increase public awareness about the dangers of not using safety belts and child restraints. Although much progress has been made in recent years, motor vehicle accidents continue to be the leading cause of death each year. In 2008, 33% of passenger car occupants and 36% of light-truck occupants involved in fatal crashes were unrestrained.

Automobile accidents stem from a variety of different causes. However, most are caused by inattentive drivers. In particular, the use of cell phones and text messaging devices while driving has garnered much public scrutiny in recent years. According to the Governors’ Highway Safety Association, six states (California, Connecticut, New Jersey, New York, Oregon, Washington) and the District of Columbia all ban the use of hand-held devices while driving. As more and more individuals use cell phones to communicate with friends and family while driving, the number of traffic-related accidents will continue to increase. In addition, other factors, such as malfunctioning products, poorly designed vehicles, and substandard tires, cause a significant number of this country’s motor vehicle accidents each year.

If you or someone you love has been injured in a motor vehicle accident, contact Abbott & Associates at (801) 373-1112 to discuss your legal options. Our experienced accident attorneys can help you recover compensation for your medical bills, lost wages, and pain and suffering.

The short answer is yes.  The Utah legislature has enacted a statute that changed the common law in Utah regarding dog bites.  Traditionally, you were only liable if you knew or should have known that your dog had a dangerous propensity.  That is still the case in may States, including New York.

Utah has strict liability.  In other words, if your dog bites or otherwise injuries another person, you are liable regardless of your own negligence.  No one free bite rule in Utah.

Courts have narrowed the statute in interpreting it.  For example, if your neighbor teased or otherwise provoked your dog, you may not be liable for your neighbors injuries when your dog defended itself.

Today’s newspaper carried an article about Chinese drywall in the Southeast United States.  Apparently, the drywall was installed when homebuilders decided they could get it cheaper than domestic drywall.  Now it turns out the drywall emits toxic fumes that are damages the homes themselves, and perhaps even the residents.

We are lucky this didn’t happen in Utah.  Many members of our Utah legislature are too eager to be swayed by lobbyists and give in on tort reform issues.  In the past few years, our legislature has limted the rights of homeowners to sue builders for defects in construction materials and techniques.  Our legislature has also limited our ability to hold someone accountable when defective products are shipped in from overseas.

While those measures may win legislators campaign contributions, they only make our society more dangerous.  We end up in a situation where the reputable builders are forced out of business by price undercutting made possible by shoddy workmanship and materials.

It is now time for our legislators to hold true to the ideals our civil justice system has embraced for centuries.  We must protect our right to trial by jury and hold people and businesses responsible when the hurt others.