Monthly Archives: November 2011

Supreme Court Allows Patients To Sue For Defective Artificial Hips

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On Halloween, the Supreme Court denied certiorari — that is it declined to hear — an appeal in Stryker v. Bausch, a case in which a woman sued for injuries she received from an FDA-approved artificial hip that was later recalled.

Since the lower court, the Seventh Circuit Court of Appeals, ruled in the woman’s favor, the Supreme Court’s decision not to hear the case allowed the woman’s victory to stand.

The argument on the part of the hip manufacturer was that the FDA approval process insulated it from liability.

We’ve seen what a joke the FDA approval process of medical devices can be. And we’ve also written a lot about how tort liability is superior to regulation — both from the perspective of compensating injury victims and from the perspective of insuring that the public has access to all kinds of new, safe medical devices.

So, two cheers for the Supreme Court. It doesn’t always get things wrong.

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Sexual Harassment Claims Against Herman Cain

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As sexual harassment allegations swirl, Republican presidential candidate Herman Cain has received much media scrutiny in recent days. Stories have appeared in the press about settlements with two women who accused him of sexual harassment when he headed the National Restaurant Association in the late 1990’s. That number very recently increased to three. Few definitive details of the two cases are available since the identities of the two women remain confidential and Cain’s own accounts of the events have been criticized less than consistent, even in the eyes of some of his supporters.

In an article entitled, Cain Accuser Got a Year’s Salary in Severance Pay, the New York Times reported that one of the alleged sexual harassment victims received a payment of $35,000, equal to one year’s salary, in severance when she left her employment with the National Restaurant Association. She left after Cain allegedly engaged in conduct that made her uncomfortable on a work outing with heavy drinking, which is said to be a common feature of hospitality industry events. People with knowledge of the situation confirmed the payment and its amount for New York Times reporters, with one person stating that the high amount of the woman’s severance was unusual given her pay grade and short tenure.

A second accuser also received a payment related to multiple claims of harassing behavior by Cain, but few details of her case have come to light. People who have commented to the media have requested anonymity, in part to protect the accusers’ privacy. Cain has offered various explanations for the two cases and has been criticized for being evasive. He told a Fox News host that the payments were for “agreements” and not “settlements.” This statement prompted conservative host Charles Krauthammer to suggest that Cain’s answer was “Clintonian,” referring to former President Bill Clinton’s tendency to split hairs about the meanings of words during the Lewinsky scandal of the late 1990’s.

The Cain sexual harassment scandal brings to light the mechanics involved in a settlement or severance agreement. Whether the document is described as severance or a settlement is typically insignificant. Regardless of its title, an agreement in this context is simply a binding contract between two or more parties. In this particular case, the alleged sexual harassment victims received payment in exchange for the legal promise not to sue the National Restaurant Association and Cain for sexual harassment. It is not uncommon for such agreements to contain additional terms such as, for instance, confidentiality and mutual non-disparagement, in which all parties agree not to speak negatively about each other.

Assuming that Cain agreed to the latter as part of the agreement, his characterization of the sexual harassment allegations as a “a witch hunt” and contention that he was falsely accused may run afoul of any existing non-disparagement obligations. Not surprisingly, Cain’s public commentary has led one victim’s attorney to request that the confidentiality requirements of the settlement agreement be lifted so that his client may defend herself.

According to this article by the Huffington Post, sexual harassment in the restaurant business occurs a disproportionately higher rate:

According to the MSNBC research 26 of the 75 (37% ) sexual harassment suits reported by the federal government so far this year took place in restaurants. Considering that less than 9% of American workers are employed by restaurants, this is a dramatically outsized percentage. And it’s not as if this year is some kind of aberration; the MSNBC piece cited a poll from Louisiana showing that 42% of female restaurant workers had experienced sexual harassment at some point in their careers.

Sexual harassment in the workplace violates Title VII of the Civil Rights Act of 1964 and the Massachusetts Fair Employment Practices Act (M.G.L. c. 151B). Both state and federal law recognize two types of sexual harassment: quid pro quo and hostile work environment. Please visit our Sexual Harassment page here to learn more about the different forms of sexual harassment.

The Boston sexual harassment attorneys at The Law Office of Alan H. Crede, P.C. represent the rights of employees who have suffered sexual harassment. To schedule a confidential consultation to discuss your case, contact the firm through their website or at (617)973-6434.

More Sexual Harassment Blog Posts Blog Posts by The Law Office of Alan H. Crede, P.C.:

Sexual Harassment Claims in Federal Court: Overcoming the Farragher/Ellerth Defense, Boston Employment Lawyer Blog (October 5, 2008)
Sexual Harassment and Race Discrimination Claims Against Tavern on the Green Settled for $2.2 million, Boston Employment Lawyer Blog (June 8, 2008)
Sexual Harassment Victory Before the 11th Circuit Provides Greater Protection for Employees, Boston Employment Lawyer Blog (May 6, 2008)

Congratulations To Abnormal Use

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Congratulations to our friends over at AbnormalUse, who recently celebrated a milestone:  their five hundredth blog post.

This blog is approximately as old as AbnormalUse and this post marks our 235th post, to give you some idea of how prolific AbnormalUse are.

AbnormalUse really makes their 500th post count too, sharing with readers some pearls of wisdom they’ve gained over the course of running the blog.

My own bit of wisdom for lawyers contemplating a blog: do it only if you love to write and/or write in your sleep. Blogging has to be its own reward; don’t count on your blogging winning you or your firm honors or acclaim. And write something worth reading. This xkcd cartoon on blogging pretty much sums up my view on blogging:

My other pearl of blogging wisdom: if you’re a lawyer-blogger who really wants to rack up the page views, make your blog political and news-oriented, rather than legal, like Althouse, Glenn Reynolds and Bill Jacobson have done. That’s part of why I admire AbnormalUse so much: they made it to 500 posts and managed to keep their blog’s focus intact.

 

 

Deinstitutionalizing Nursing Homes

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Today’s New York Times featured an article on a new, and quickly spreading, effort to deinstitutionalize nursing homes by changing their physical structure. Instead of occupying a vast hospital-like building, these new nursing homes are made up of clusters of arts-and-crafts style houses called “Green Houses.”

Each Green House is home to approximately ten residents. The floor plans are open and lead to interaction between staff and residents. For instance, food for the residents is prepared in a warm open kitchen, instead of some industrial-grade cafeteria, and residents will often make small talk with the cooks as they prepare their food.

There are currently 117 Green House nursing homes in the United States, with plans for more.

Residents of Green Houses experience fewer bed sores than those in conventional nursing homes, according to one survey, and each day they get 24 minutes more of direct and personalized care and 1.5 hours more of nursing staff time than those living in traditional nursing homes.

The cost of nursing care in a Green House is approximately the same as the cost of nursing care in a traditional nursing home, but the per-patient construction costs of building a Green House are slightly higher than cost of building a traditional nursing home.

Let’s hope the Green House movement catches on.

(A side note: thanks to a talented client who recently introduced me to the wonders of Greene & Greene‘s arts-and-craft furniture and architecture, I thought the “Green House” movement’s arts-and-crafts houses might have taken their inspiration from Greene & Greene, but, alas, it appears they are so named because the “Green Houses” originated with the Green Hill nursing home corporation).

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Speed Kills; The Consequences Are Forever

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Via Andrew Sullivan (h/t Dave Hoffman), an arresting graphic about how a small difference in speed can multiply severalfold a pedestrian’s likelihood of dying in a car accident:

This is fact that could be played up a bit more by the public safety community. I’m aware of only one locale in the US where this fact is effectively publicized:  New York City. I’m not sure if they’re still up, but the Big Apple had a number of billboards showing a skull superimposed over a child’s face and saying, “At 20 mph, it is likely he’ll survive an accident; at 30 mph, he will most likely die. That’s why the City speed limit is 20 mph.”

Maybe instead of doing idiotic things like banning Segway tours, Mayor Menino could take a page from our friends in New York and have billboards plastered all over the City warning how a little difference in speed can make a big difference in survivability.

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