Voting in America is easy. Because of that, many people take their right to vote for granted. How often do we hear about "elections" in far away lands where there is only one party running? How often do we hear about military juntas hunting down opposition voters and terrorizing or killing them to keep their party in power? How many countries are affected by election or voter fraud? There are too many, far too often. 

Here in America we have peaceful organized and honest voting. We have such smooth elections that our voting right is now boring. This is especially true for the primary elections. What was the worst voting problem to happen during an American election in the past decade? Do you recall the hanging Chad? Thankfully, no one rushed to pick up arms and start shooting at the Republicans or Democrats. You may laugh, but that is exactly what could happen in many places around the world.

I believe every citizen has more then just the right to vote. I believe we each have an obligation to vote. We live in the "freest" country in the world. It takes no longer then 15 minutes to vote. You only need to vote once or twice every few years. Your vote is the easiest formal action you can take to insure the freedom of our great land.

Republican, Democrat, Green Party, Independent, I don't care. Exercise your right to vote. I recognize you are one vote among millions and millions. It does not matter. Your vote can make a difference.

Thanks for exercising your freedom to vote.

Stepping off the soapbox!

Brian

The consumer rights organization, American Association of Justice, released the comprehensive report, The Ten Worst Insurance Companies in America: How They Raise Premiums, Deny Claims, and Refuse Insurance to Those Who Need It Most." This report highlights 10 of the worst insurance companies for consumers based criteria such as, SEC and FBI records, testimony from former insurance agents and adjusters, court documents and more. 

The report ends with making a call for "Pro-Consumer Insurance Reforms" and making a suggestion for the following three points:

1. Require Insurers to Work in Good Faith

2. Require Prior Approval of Rate Increases 

3. Establish an Insurance Consumer Advocate

The remainder of the top 10 list of worst insurance companies for consumers is rounded out by the following:

1. UNUM, - Disability Insurance, Life insurance, supplemental and accident insurance
2. AIG,  - Auto insurance, life insurance, accident and health insurance,  property and casualty
3. State Farm, - Auto, life, health, home owners insurance and health insurance
4. Conseco, - Health Insurance, Life Insurance and Annuities
5. WellPoint, - Health benefits Company
6. Farmers Insurance  - Auto, Life and Homeowners Insurance
7. UnitedHealth, - Health care Insurance
8. Torchmark, - Holding Company offering life and supplemental health insurance
9. Liberty Mutual - Auto, Life, Homeowners and Commercial Insurance.

Over the past 16 years, I have handled thousands of Personal Injury cases against several of the companies on this list and a host of others.  I can attest firsthand that some companies are better than others at handling claims for their Insured and helping the needs of the injured.

I find it no surprise that Allstate made the top of the list, nor am I not surprised by the findings of the report: The Ten Worst Insurance Companies in America". I do find it strange however, that the insurance companies are so quick to harm and work against the interest of their own insured clients.

Randy David, blogger for Gotcha Covered, wrote the post Is Allstate the Worst Insurer in America? He added to the discussion that "the designation is not surprising, given the ongoing war between the insurer and trial lawyers over auto insurance accident claims." 

David Gottlieb, blogger for No Fault Paradise, wrote the post, Top Ten Insurance worst Insurance Companies for Consumers.  He has some pretty interesting comments on his blog regarding the post.  Great discussions on the subject of the insurance industry and how premiums are increasing at an alarming rate faster than the incurred losses for the Insurance carriers.

John Day, blogger for Day on Torts, wrote the post, Ten Worst Insurance Companies in America and listed the top 10 Insurance companies that were in the AAJ report.

I look forward to see how the Insurance Companies and the public respond to this AAJ report on their industry that outlines how consistently they put profits over their policyholders.

 After reading the AAJ report, I would love to hear from consumers on how they feel their insurance company is treating them.  Has the report made you think differently about your provider?

I welcome comments...

When told of the news of Judge Winikoff's death, Attorney Carl Wald, stated "Judge Winikoff is one of the finest Judges I  have ever appeared before. The Judiciary has lost one of its finest, but his memory will live on forever."

Funeral Services for Judge Winikoff  will be held Friday at 12:30 p.m. at the Beth Israel Memorial Chapel, 11115 Jog Road west of Boynton Beach, with burial afterward at Eternal Light Memorial Gardens, 11520 State Road 7 west of Boynton Beach.

This sad and untimely loss raises the importance of supporting the American Heart Association. If you want to find out more on how you can get involved or support the American Heart Association, contact your local American Heart Association office today.

Our thoughts and prayers go out to all of the family and friends of Judge Winikoff. The Sun-Sentinel has a Guest Book in honor of Judge Winikoff. Loved ones and members of the Community give their heartfelt sympathies to the Winikoff family.  Click on the following Sun-Sentinel Guestbook link to add your words of encouragement to the family.

It is important to note that the Florida Legislature regulates court fees and not local officials. The Court fees have not been adjusted since 2004. The list includes Traffic Court Information such as Speeding Ticket fines. If you are always in a hurry and get a lot of speeding tickets, it will cost you a lot more for speeding.  Driving 20 miles over the Speed Limit will cost you at least 231 and driving 30 miles over the Speed Limit will cost you $331. Ouch... That is a $100 difference between 10 miles.  Be wise and don't Speed.

If you take the Florida Turnpike or other Toll Highways and fail to pay the toll, it will now cost you $181, plus the toll amount.  Keep your Sunpass Transponder updated and fully loaded.  Otherwise, the Florida Turnpike and our Toll Highways will start to become just as painful as it is to fill up your pump.  Be Wise, keep change in your car and keep your Sunpass funded. The auto-replenishment method, is starting to sound like a bargain.

 Click on the following link to view a list of the new court fees. 

The court, in its first few paragraphs, related the story of the Dalkon Shield, an intrauterine device that harmed thousands of women. The court made a broad accusation that the Dalkon Shield created a barrage of tort lawsuits that proved the common law tort system (read: American System of Justice) is defective and unable to properly handle tort claims related to medical devices. The court gave no basis for this opinion, except for the fact that there were many tort claims filed because thousands of woman here harmed by the Dalkon Shield. For most of America the Dalkon Shield cases were proof, similar to Ford Pinto cases, that Corporate profit motives outweigh human safety all too often, even with Federal oversight.

Are medical devices so special that they get special handling or special rules compared to any other "device" produced today. If the court system cannot properly handle medical devices then why it is able to handle front-end loaders that have a "device defect" that kills people. Why can the court properly handle tire defect cases, roof crush, seat belt failures, or any other "non-medical" device that harms people? It is illogical. The only logical position is that medical devices interact with the human body in a more intimate and significant way so they need additional protection from lawsuits. I feel the exact opposite. The fact that a medical device is such an intimate thing leads me to believe that the law should garner the human participant in using the medical device MORE not LESS protection from device defects.

The language of 21. U.S.C. section 360 states as follows:
Except as provided in subsection (b) see below of this section, no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement (emphasis added) -
(1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and
(2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter." Section 360k(a).
(The exception noted in subsection (b) allows the FDA some latitude in giving local and State government oversight in some limited instances, which were not covered by the court in the opinion.)

Justice Ginsberg noted this exact point in her dissent but was preempted in the argument by Justice Scalia in his controlling opinion with the indictment that the entire tort system is not deserving of "preservation" and that "juries...see(s) only the cost of a more dangerous design, and is not concerned with its benefits..."

Juries are given both sides of a matter. Drug and medical device companies spend significant money on hiring the best and brightest lawyers money can buy. The typical medical device case has a small law office representing the Plaintiff. The Plaintiff’s attorney usually attended a local or state college and a local law school. He or she may have graduated in the middle of their class and may have a paralegal and a legal secretary helping out on the case. I am sure the attorney is bright and passionate. If that attorney is lucky, he or she may even have an associate with the same legal pedigree. By contrast, the Drug or Medical Device Company has a team of legal scholars at their disposal. Most of their team, a team of maybe 10 or 20 attorneys and a cadre of paralegal assistants, investigators and legal secretaries all graduated at the top of their class from the best law schools in the nation. They are a highly trained and well-paid group of white shoe legal assassins. There is no doubt in my mind the battle is David vs. Goliath and the Plaintiff’s attorney is the David in this story. It is only the fact that the jury often finds truth and passion in the Plaintiff’s story that permits plaintiff’s to ever win a case. Justice Scalia’s argument relies on the myth that Plaintiff attorneys are a secret society of Svengali’s who use Jedi mind control to blind the jurors into believing their side of the case. That is just ridiculous and I am sure every egocentric defense attorney looks at Justice Scalia’s opinion as a direct insult.

The court directly took up the challenge that the legislature did not intentionally, without any comment, struck down any reference to public redress or access to the court system. Justice Scalia says that is "exactly what pre-emption clause for medical devices does by its terms. The operation of law enacted by Congress need not be seconded by a committee report on pain of judicial nullification... It is not our job to speculate on congressional motives."

Then why go out of your way to force the issue and push for Federal pre-emption?
A casual reader may think that the opinion is only about Medical Devices. However, how long will that last? How simple will it  be for Congress to slip in Federal oversight preemption language into bill after bill until all torts are preempted by Federal oversight. It is against my Republican sensibilities to create Federal agencies to oversee private industry so that private industry can escape liability for harming the public with a faulty or defective product.

I am sure the burden on the court system will be greatly lightened when individuals can’t obtain  help for their injuries. Certainly if we do not permit people to bring lawsuits there will be less lawsuits. However, what is the effect of that? I wonder who pay the medical costs associated with the injury. Will the person's health carrier have to pay? What if they do not have health insurance? Will the local hospital and doctors care for the person? How much is the Federal Government willing to spend to take care of those harmed by the negligence of corporations whose products are sold to our people, our children without the worry that the company can be held accountable for injuring those people? With regard to many medical devices, we are going to find out real soon.

Brian

Click here to read the Supreme Court decision for Riegel v. Medtronic, Inc., 552 U. S. ___ (2008)

New Jersey is among four other states, New York, California, Connecticut and Washington, D.C., to have such laws. According to a survey done by Nationwide Insurance, 73 percent of drivers use cell phones and 20 percent text while driving. The New Jersey Gov. Jon S. Corzine signed the legislation giving police more authority to target drivers using hand-held cell phones, and making it illegal to send text messages while driving - distractions legislators contend make for risky driving. The law however, allows drivers to use hands free devices to talk on the phone.

Do Hands Free devices make the roads safer? According to reports from the transportation officials, nearly half of the 3,580 phone-related crashes in New Jersey involved a hands-free device, Five of 11 fatal accidents involving a cell phone that year also involved a hands-free device. This data was from 2006. Russ Rader of the Insurance Institute for Highway Safety said those figures are consistent with recent research showing no difference in crash risk between hand-held and hands-free cell phones.

Although, Florida has not joined the pack in banning texting and cell phone use without a hands free device, We urge you to use caution and common sense.  If you are driving, pay attention to the road and do not text and drive.  If you must send a text, pull over, stop driving and send your text message. After you are finished, compose yourself and proceed with caution to get back on the highway if you have pulled over.  If you do not have one, go out and purchase a hands free device for your cell phone. However, as the statistics above show, driving while not concentrating can cause accidents even with a hands free device.  Always exercise caution while driving and talking.  Your primary focus should be operating your vehicle safely and paying attention to what is happening on the roadway, not your phone conversation, which can be a distraction.

Click here to read more on texting and cell phone use bans from 6ABC.com, AP and the Gainesville Sun

I recently read a Washington Post.com article Telecom Firms' Need For Immunity Stressed.  The article made me think of how the path to hell can be paved with good intentions.  How often are actions that are meant to do good, in the end lead to disaster? The post 9/11 terrorist / "Patriot act" / Telecom Immunity is exactly that type of mentality. If we continue to follow President Bush to restrict our right to privacy then we might as well congratulate Osama Bin Laden on winning the war, because the war isn't about oil, money or land. The war is about the idea of freedom. The beautiful thought of freedom.

In the closed societies of the Taliban, Hammas and many other places in the world people do not have the freedom to speak, to organize, to freely think in the privacy of their own homes. They can't talk out about the government without facing criminal sanctions. In fact, this Blog may deserve a jail sentence in many parts of the world. We must realize that our need for security is balanced by our need to keep the freedoms we take for granted alive. We must be diligent not to let these rights slip away under our noses while we hunt for terrorist threats. This isn't to say I don't believe in the terrorist threat, I just believe we need to play by our own rules in catching them in our own country. Changing the rules to hunt for terrorists leads to changing the rules to hunt for criminals, which leads to changing the rules for you and me.

As a former prosecutor with the Department of Justice, also married to a former prosecutor, that has complete trust and faith in our system, albeit imperfect, I am not ready to change the rules on privacy so quickly.

Off the soapbox:

Brian

Click here to read more on Phone firm phones and immunity to privacy suits by the Washington Post.com and the recent article Telecom Firms' Need For Immunity Stressed in the Washington Post.com

In a recent accident involving a 17-year old, text messages were sent to and from the teen driver before the deadly crash involving a tractor trailer crash.  This is any parents nightmare. Their teen dying at the wheel, while on the phone.  Adults are not immune to texting while driving. According to Lynch Ryan  Worker's Comp Insider Blog,"You can make a case that a vehicle can be operated safely while the driver talks on a cell phone - preferably with a head piece - but no case can be made for safe driving while the operator's eyes are actually focused on the mobile device. Texting, like alcohol, does not go with driving."  I agree wholeheartedly.  The cell phone providers should do more to bring awareness to the dangers of texting while driving. According to a recent study by AAA on teen texting while driving habits, nearly 46% of teens, text while driving.  

Blogger, Anne Donnegan, hit it nail on the head, when she said, more people may have to die in DWT accidents, before legislators eventually see the light and pass a bill banning DWT.

Thankfully, lawmakers around the country are introducing legislation to curb this dangerous behavior. A few brave champions, such as Washington State, Phoenix and New Hampshire are writing legislation on Driving while texting.

What are your thoughts on texting while driving?  Should it be illegal?  What is better a fine or points on a license? The answer remains with concerned citizens. Do you want your loved one killed or injured by a driver that is texting?  If not, find out if your local city or state has a ban on DWT - Driving While Texting. If not, contact your local lawmaker and suggest this legislation. Share what other cities are doing such as: Washington,  Phoenix, and New Hampshire. Make a difference and let your voice be heard in the fight to end DWT accidents.

Click here to read more from the Insurance Journal

President Bush vows to veto the bill because of costs, reliance on a tobacco tax increase and potential for replacing private insurance with government grants.

SCHIP is a state-federal program that provides coverage for 6.6 million children from families that live above the poverty level but have trouble affording private health insurance. The proposed expansion, backed by most governors and many health-advocacy groups, would add 4 million children to the rolls.

SCHIP is set to expire Sunday. To avert that, congressional Democrats plan to extend it temporarily with a larger spending bill to keep the government running when the new fiscal year begins Oct. 1. The strategy would prevent Democrats from being blamed or letting the health program lapse by not reaching an accord with Bush, lawmakers said.

What can you do to get involved? Contact your local Legislative Representative regarding this critical issue.  Of course there are details that still need to be worked out, however, it would be reprehensible to let these poor children go without healthcare.  Join in the fight to provide healthcare for children. Do not let this important issue become a tug of war between the democrats and republicans.

Join Esther Uria LaBovick, Esq. and our firm in letting your Congressional Representative know how important this issue is to our Children in America, by contacting them personally.  If you do not know your local Congressional Representative, go to www.Congress.Org, to find your Congressional Representative's contact information. Don't delay, every vote counts for this critical legislation.

Among the preemption measures:

• The National Highway and Traffic Safety Administration (NHTSA) declared its rules on seat-belts and roof-crush resistance would preempt state common-law claims, despite previously rejecting the concept.
  
• The Food and Drug Administration (FDA) declared a rule on drug labeling preempted state tort law despite the fact that the agency had long held the opposite view.
  
• The Department of Homeland Security (DHS) also adopted preemption provisions, despite the fact that the Senate Homeland Security and Governmental Affairs Committee had expressly rejected such an approach just a year earlier.
  
• The Consumer Product Safety Commission (CPSC) and Federal Railroad Administration (FRA) have been criticized for trying to preempt state law.

Click here to read the report: "The Truth about Torts: Using Agency Preemption to Undercut Consumer Health and Safety".

Key figures testifying at the Senate Judiciary Committee hearing this week on “Regulatory Preemption" were Georgetown Professor David Vladeck, attorney Collyn Peddie and Donna Stone, state representative from Delaware and the current President of the National Conference of State Legislatures.

Testimony from State Representative Donna Stone

Testimony from Professor David Vladeck

Testimony from Attorney Collyn Peddie

Click here to read more from the AAJ on the Judiciary Committee Hearing.

Agencies such as the Consumer Product Safety Commission (CPSC), Food and Drug Administration (FDA), and The National Highway and Traffic Safety Administration (NHTSA) set out to protect the health and safety of Consumers. Let's hope that the Judiciary Committee meetings help to prove this point loud and clear so that we can all work together towards the fight for consumer justice.

The Attorneys, William J. Gallion, Shirley A. Cunningham Jr., and Melbourne Mills Jr., to repay $42 million taken from the settlement and $20.1 million in interest. What were they thinking? They started out with best intentions and ended up getting corrupted by greed. Greed is not good. Especially, when you have to hurt and exploit the people who hired you to help them.

Hopefully, this will send a message to the bad apples in the legal community that give the majority of trial lawyers a bad name. This is bad for the legal profession, bad for the consumers and bad for society at large.

Click here to read more on the story from Associated Press.

Now, you may ask why are we mentioning this on our LaBovick Injury Law Blog, the answer is simple: We want to help. We want our Readers to know about this program and to Join us in making a difference. This is for the kids. 

The Florida KidCare program accepts applications year-round from families with uninsured children under the age of 19. Children enrolled in the program receive regular doctor’s visits, immunizations and routine vision and hearing screening. Most families pay a premium of $15 or $20 a month.

“Working families with uninsured children should be given every opportunity to enroll in KidCare,” said Esther Uria LaBovick. “We’re in contact with these families regularly and it makes sense to use these opportunities to share information about KidCare and encourage families to complete the application for this quality healthcare program.”

Families can apply online 24-hours a day on the Florida KidCare Web site - www.floridakidcare.org, which is a one-stop source for information about program benefits, costs and enrollment status. Information and printable applications are available in English, Spanish and Haitian Creole. Families can call (1-888-540-KIDS) to receive an application by mail or get answers to any questions they may have about KidCare.

Please share this message with people who can benefit fro having insurance for their uninsured Children. It is easy, affordable, and available to qualified parents.  Call (1-888-540-KIDS) or visit www.floridakidcare.org for more information.

Application in English 

Application in Espanol

Application in Haitian/Creole

We are proud to be a corporate partner and work local organizations on spreading the news about the Florida KidCare program! We will be in the community distributing literature at local venues. Esther Uria LaBovick will be speaking about KidCare on “Hablando con la Comunida” – News Ch.5 WPTV and “Nuestro Pueblo” – News Ch. 48 WWHB, Azteca America Affiliate and on Around our Town - WTVX - CW Network.

The interesting part of this litigation is that Home Depot was notified about the defective product, however, did not remove all of the product from its shelves, until 19 months after the Consumer Products Safety Commission issued a recall on 300,000 cans of cans of Stand 'N Seal. The litigation has a lot of finger pointing of who is to blame.  Is the retailer, Home Depot responsible, since it sold the product to the consumer? Is the manufacturer, tile perfect, a division of the Roanoke Companies, a leading manufacturer and private label company? Is it the company SLR, Inc that produced the product for Tile Perfect? Is it the Georgia-based Innovative Chemical Technologies or the South Carolina based company, Ortec Inc. that is responsible because they allegedly were involved with the formulation of Flexipel?  Time will tell, which of these five companies will ultimately bear the blame of the unfortunate injuries to the consumers of the Stand N Seal grout product. 

Click Here to read more about this story from Law.com and the Fulton County Daily Report.

The Law Firm, LaBovick & LaBovick, Civil Justice Prosecutors, is a Plaintiff’s firm. LaBovick & LaBovick focuses on fighting for personal injury victim’s rights in Florida and on qui tam (whistleblower claims) nationwide.  The firm handles all serious injuries, car accidents, boating  accidents, wrongful death, slip & fall, toxic torts and product liability cases. The firm has office locations in Boynton Beach, West Palm Beach, Jupiter and Port St. Lucie, Florida. Visit the firm website at www.labovick.com more injury information.

Four years ago, Evelyne Tremain went to the hospital with labor pains. Instead of having a doctor on hand during the complicated delivery (as required), a Midwife, presided over the entire delivery. Since, Evelyne, had a Cesarean with complications, prior to this pregnancy, her doctor informed her that she was "high risk" should not use a midwife in this delivery. Unfortunately she received a "Midwife Delivery" instead, and a doctor was not involved until it was too late. The child, Toby Tremain, is impaired and tragically injured as a result of the medical care provided by the Air Force at St. Elizabeth's Hospital in St. Louis. The judge wrote in his ruling that the Air Force medical providers confused military rank with what was best for the patient. The midwife was a Major and the obstetrician was a Captain at the time of the delivery.

Click Here to read more on this case in the St. Louis Post Dispatch.

The verdict was not thrown out, instead, the Judge ordered a new trial on the pain and suffering issue, unless the plaintiff agreed to reduced awards for past and future losses. The award for lost earnings, medical expenses and spousal loss of services, totaling  $3.2 million stands. 

 Click Here to read more about this case in the Staten Island Advance.