Kevin Archives

When you like riding motorcycles and like having a tall, cold beer on a hot day, it is tempting to mix the two - even though we know better. In the United States, temptation is in our DNA. We live in the land of more. Advertising has been pushing "more is better" into us since we were old enough to talk. We've seen so many images of cold beer, hot women, and good times we are primed to order that beer when we are in situations like we see in the ads.

After a good ride on a hot day with miles to go before days end, it is tempting to have something more, something good, something more than ice tea or a Coke. "It's Miller time!" urges us, along with "go for the gusto!" (if you remember that advertising slogan) or "just one won't hurt," to go ahead and order that beer. We know better. We've heard it in motorcycle safety classes. We've read it in motorcycle magazines. But instead of listening to Jiminy Cricket on our shoulder telling us "don't be a fool, stick with the ice tea," we're thinking - "It'll relax me for the ride home. I've only got a few more miles to ride. One beer won't make a difference. Everybody else is having one. That is going to taste great! I know my limits, I'll adjust my riding accordingly."

In addition to those rationalizations, there's also -- "I'll have an energy drink!! That'll get me home safe!!" We see their advertisements at motorcycle races. Monster Energy Drinks like M-80 and Heavy Metal. Red Bull. Rockstar. Full Throttle. The mental association they are pushing is that motorcycling and energy drinks go together. "So motorcycling plus an energy drink plus a beer (or maybe two or three thanks to the energy drink) and I'll be good to go!" Not so fast, cowboy.

Those energy drinks don't offset the effects of alcohol on perception time, reaction time, and judgment. They may have anywhere from 80 to 160 mg of caffeine or more, as much as 240 mg in some cases. A 12 oz. Coke has 35 mg of caffeine. All that caffeine can offset the drowsiness caused by alcohol but drowsiness is not the only effect on the brain and its ability to get you and your motorcycle home safely. We use the sense of drowsiness caused by alcohol to assess our level of impairment. When massive doses of caffeine take that drowsiness away, our ability to assess our level of impairment is reduced and we are likely to underestimate the extent to which one or more drinks have affected our ability to ride safely.

When we mix energy drinks and alcohol, we tend to drink more. When you take decreased perception and reaction time, and mix that with impaired judgment and the likely effect of massive caffeine on what the right wrist wants to do with the throttle, that ride home could go bad in ways our mothers, fathers, and loved ones don't want to know.

People who mix energy drinks are more likely to drive after drinking. They are more likely to underestimate their level of intoxication and mental impairment. And they are more likely to overestimate their ability to drive home safely.

When the day's ride is not yet over, you're sitting at a table, relaxed, and are tempted by a tall cold one, take a pass. Hold off on the beer until you're home safe, wherever "home" happens to be that night. Live to ride another day.

Tort Reforms That Undermine Right to Trial by Jury

Ask Legislators to Violate Their Oath of Office

TRIAL BY JURY in suits at common law is a right that "shall be preserved" according to Article VII of the Constitution of the United States. The Constitution of the Commonwealth of Virginia states that "in suits between man and man, trial by jury is preferable to any other, and ought to be held sacred." Article VIII, Section 11.

In taking their oath of office, the President of the United States, U.S. Senators and Congressman, and the Governor, officers and legislators in the Commonwealth of Virginia swear or affirm to defend the Constitution of the United States.

Men should be good neighbors to each other but the Constitution recognizes that when they are not, the right to trial by jury shall be preserved as the way to achieve a just resolution of their disputes. The oaths taken by our leaders as a prerequisite to holding office are oaths to uphold the Constitution and, thereby, uphold the right to trial by jury. This recognizes that the touchstone of law and power in the United States is the Constitution. Not the flag. Not the Oval Office. Not the Capitol. Not Wall Street.

Businesses should be good neighbors too, but while the rule "do unto others" may guide the conduct of individuals, the rule "maximize the bottom line" more often guides the conduct of businesses. Financial fraud, price fixing, price gouging, cutting corners, dumping toxic waste, making motor vehicles that attract buyers but catch fire on their own or easily roll over, and selling drugs, toys and other products that poison, maim and kill - all these add to the bottom line - as long as lawsuits don't get in the way. "Tort reform" is all about protecting that bottom line and doing away with lawsuits. It has nothing to do with making motor vehicles and other products safer, drugs safer, patients safer. Trial by jury is the remedy under the Constitution for holding wrongdoers accountable for not being good neighbors.

When the U. S. Chamber of Commerce, its Institute for Legal Reform, and corporations, interest groups, lobbyists and politicians talk about the need for "tort reform," they are asking legislators to chip away at our Constitutional right to trial by jury to hold corporations accountable.

If we saw these companies and industries on the playground when we were kids, we'd say they were bullies, wanting to push people around without having to answer to anyone.

Tort Reform is a one way street. Its goal is the elimination of the checks and balances on corporate power that trial by jury preserves by putting power into the hands of the people of the United States.

Legislators putting caps on the amount of damages that juries can award for medical malpractice claims, punitive damages, pain and suffering; creating rules that make it harder for people to prove their cases and get their cases before a jury; legislatures granting privileges and immunities from liability of one kind and another; allowing defendants to force plaintiffs to arbitrate a claim instead of going before a jury - the tools for taking away the right to trial by jury are many and devious. At times you need a Sherlock Holmes to sift through all the cries of alarm, the justifications and the deceptions to see that what they are really doing is taking a bit here, a bit there, until they have stolen from us this golden tool entrusted to us by our Founding Fathers for preserving a just society for generations of Americans yet to come. Our elected representatives have taken an oath to defend the Constitution. When it comes to tort reforms that undermine trial by jury, they should just say no.

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Presidential Oath - "I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the Unites States, and will, to the best of my ability, preserve and defend the Constitution of the Unites States."

U. S. Senate and Congress - "I do solemnly swear (or affirm) that I will support and defend the Constitution of the Unites States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

Commonwealth of Virginia - "I do solemnly swear (or affirm) that I will support the Constitution of the Unites States, and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge all the duties incumbent upon me as _________ (office) according to the best of my ability (so help me God)." Virginia Constitution, Article II, Section 7.

Graco Children's Products is recalling its Harmony high chairs sold in the U.S. between November 2003 through December 2009. Loose screws and cracked brackets can cause these high chairs to tip over. Graco sold 1.2 million Harmony high chairs in the U.S. and another 35,000 in Canada.

For a free repair kit, contact Graco at 1-800-345-4109 or online at Graco.Baby.com.

Based in Atlanta, Graco has received 464 reports of screws loosening or falling out and brackets cracking, resulting in unexpected tip overs of the high chairs.

For additional information, go to http://www.cpsc.gov/cpscpub/prerel/prhtml10/10171.html.

How many headlines have we seen - Children's Jewelry Recalled Because of Lead - or words to that effect. The Consumer Product Safety Commission (CPSC) website offers the following:

* Wal-Mart Recalls Charm Key Chains Due to Risk of Lead Exposure. 4/18/08. 12,000 units involved in this recall.

* Wal-Mart Recalls Additional Charm Key Chains Due to Risk of Lead Exposure. 6/19/08. About 39,000 units involved in this recall, in addition to 12,000 previously recalled.

* Horse Toy Figures Recalled by Blip Toys Due to Violation of Lead Paint Standard. 1/26/10. About 15,000 units. Sold at Wal-Mart from 1/2009 through 7/09.

* Children's Toy Jewelry Sets Recalled by Playmates Toys; Charms Violate the Total Lead Standard. 2/2/10. About 252,000 Tiny Tink and Friends Children's Toy Jewelry Sets. Sold at various retailers 11/08 through 11/09.

* FAF Inc. Recalls Children's Necklaces Sold Exclusively at Walmart Stores Due to High Levels of Cadmium. 1/29/10. About 55,000 units involved in this recall.

* CPSC Issues Warning on Children's Winter and Holiday-Themed Charm Bracelets with High Levels of Cadmium. 3/11/10. Rudolph-the-Red-Nosed-Reindeer charm bracelets sold at discount and dollar-type stores 2006 to March 2009. Number of units involved unknown as importer of these goods from China has gone out of business.

Why does it take the CPSC and state attorneys general to discover that products being sold for children contain toxic materials at unsafe levels? When Wal-Mart and other chain stores consider selling a product for children, do they not test the product to see if it contains toxic chemicals or toxic materials at unsafe levels? Where is the headline about how these products got on the store shelves in the first place? Who looked at these products to see if they were safe or toxic? Or did the retailers who offered these items to us to buy for our children, did they just look the other way?

The effects of lead on children are well known. It causes anemia, muscle weakness, brain damage and learning difficulties; it can also affect mental and physical growth. www.atsdr.cdc.gov./tfacts13.html

The effects of cadmium are lung damage, fragile bones, and possible kidney damage. Cadmium is a human carcinogen. It is used in batteries, pigments, metal coatings, and plastics. www.atsdr.cdc.gov./tfacts5.html

Mothers and fathers with young children don't have the time, energy, or resources to test every item they buy for their children. Anyone with young children knows there is not enough time in the day for everything, and sometimes it is hard to even read all the warnings on children's items. Large retailers know this. If a parent goes to a store and finds a toy on the shelf, she thinks it is safe if there is no warning on the packaging. When the warning comes months and months later in a headline or a CPSC recall announcement, it begs the question - who is minding the store?

Kevin Ryan wrote the following ode in response to a Dec. 30, 2009, story from the www.avvo.com, website: 

As the complexity and sophistication of robotic products increases, so too will increase the cost of proving liability. This cost will effectively close the courthouse doors to many who are injured. Manufacturers, through talking heads on TV, economic experts, pundits and so on are likely to lobby the public, the congress and state legislatures (a) on the need for immunities from suit to "protect jobs" (that probably have been exported to foreign countries) or to protect the "industry" so we don't fall behind other countries in robot production; or (b) they will seek the creation of additional procedural hurdles in the court systems and legal process to make it impossible for an injured person to hold a corporate manufacturer responsible before a jury.

New remedies or procedures will be needed to level the playing field so that economics alone do not dictate who can bring a lawsuit. The time may have come for the cost of proving liability to be included in the damages that are recoverable by an injured party who wins at trial after having made a settlement offer which was less than the jury verdict.

Without some mechanism to offset the cost barrier to holding such manufacturers responsible for the injuries they cause and to encourage them to have adequate levels of insurance coverage, their licenses to manufacture complex and sophisticated robotic devices will become, thanks to the high cost of litigation, licenses to maim and kill. That would be a world like the Empire Luke Skywalker fought against. It will be a world where the court system serves the powerful at the expense of the individual. In the rush to a future where R2Ds and C3POs move among us, let us not forget that it is the individual who is paramount, because when the individual is protected, each and every one of us is protected; but when it is the wealthy and powerful who are protected, then the rest of us live in danger.

In the movie Ghostbusters, the ghostbusters' advertising slogan asked - who you gonna call? As we move forward into a world with increasingly complex products, we need to remember this question and be sure that the justice system keeps the court house doors open to individuals injured by sophisticated and complex products of all kinds.

In Star Wars when R2D2 and C3PO are sold to Luke Skywalker's uncle, he was looking for droids (thinking robots) to operate his farm equipment. Nobody asked - who made these things and who is at fault if they malfunction and burn down my workshop, destroy my equipment or injure anybody? The Star Wars script did not call for product malfunction and mayhem to create a personal injury law saga. However, Murphy's law is written into the script of real life. If accidents can happen, they will.

We have cars that parallel park themselves. We have Roomba vacuum cleaners that roll around the house on their own, moving from room to room, avoiding stairs, even plugging themselves into their docking station when their battery gets low. We have industrial robots in factories and robots used by the military in Iraq to detect and inspect bombs. The day is coming when robots will be moving around among us, operating not by direct human control but on artificial intelligence and other programs. Like the various products that have come before them, these robot devices will malfunction and injure people. It may be a car that drives itself through a cross-walk filled with pedestrians, or a janitorial robot bumping someone and knocking her down a flight of stairs, or a robot child caretaker that restrains a child and breaks his arm. Product failures and malfunctions are a fact of life that is not going to change.

Today when a machine or appliance causes a fire that burns down a house or kills people sleeping in their home, traditional product liability law determines responsibility for the loss of property or life. In these lawsuits, lawyers hire engineers to identify the malfunction that caused the fire and to determine whether that malfunction was caused by negligent design or negligent manufacture, alteration of the product during repairs or maintenance, abuse of the product, or a failure to warn about the fire hazard and what to do to prevent fires. In a typical defective product case, the cost for experts ranges from $75,000 to several hundreds of thousands of dollars. This litigation price tag alone prevents many legitimate cases from being brought - a form of tort control in and of itself.

Now along comes R2D2, adding artificial intelligence to the list of potential causes of product malfunction. The cost of litigation will be even greater as an additional class of experts will be needed to determine what part the computer software played in the malfunction. They will have to determine if the defect was in the original programming, or was it due to hacking or radio/ELF/microwave or other electrical interference, or to downloading a defective software patch, or downloading an updated version of the original program, or did the addition of a new program cause a conflict with the software in the robot in which the interaction of two non-defective programs caused a glitch that resulted in the injury? Determining the guilt or innocence of these ghosts within the machine will be difficult and expensive.