Archive for June, 2008


Morning Tim Russert

When Tom Brokaw opened Sunday’s somber edition of "Meet the Press" he showed a large wooden sign Tim Russert had displayed in his office, that said "Thou shall not whine.’ And Brokaw addeded ‘Thou shall not weep or cry this morning.’ This is a celebration, a time to remember."

But that edict proved hard to observe as Russert’s colleagues eulogized him on the NBC political talk show he moderated for nearly 17 years until his unexpected death from a heart attack Friday.

And, I assume, that the edict was also difficult to observe by those watching for the program opened silently, with the camera focused on a darkened set and the moderator’s empty chair. Brokaw and a gathering of Russert’s friends sat in a semicircle in front of the stage, reminiscing about the man and his passion for political discourse.

While most can comply with the request to not whine, we must all admit it will never, ever be the same.

For three straight days, NBC News devoted its resources to memorializing him on the air. And, if I may editoralize:  This was, other than letting Tim Russert have his head (as cowboys do to their best horse), the only thing NBC has done with decency in the past 5 years.

Of course it wasn’t just his own employer that lionized Russert. CNN, CBS, ABC, Fox, and, especially, that Icon of Conservatism, Rush Limbaugh, dedicated messages of admiration.

There was not much laughter at NBC this weekend, but is there ever?

Poison Tomatoes?

First it was that Sci-FI icon (The Attack of the Killer Tomatoes) and now the supply chain that ships foods to far-flung consumers is also good at spreading disease and mayhem.

All that’s required are ripe tomatoes just off the vine, fresh mozzarella di bufala, basil coaxed to aromatic fullness by the sun’s heat, a sprinkling of coarse salt, a grind of pepper and a drizzle of extra virgin olive oil. It’s a gloriously simple dish that happily reproduces the colors of the Italian flag and virtually stares up from the plate, whispering "high summer."

The fact that you now can order some variation of it in February from half of America’s restaurant menus or supermarket takeout counters goes a long way toward explaining what’s behind the current national recall of tomatoes across the United States.

According to the Centers for Disease Control and Prevention, 167 people in 17 states have fallen ill from salmonella since mid-April. Twenty-three have been hospitalized, and one has died. Federal officials have traced the infections to three types of tomatoes — contaminated plum, Roma and round red.

Initially confined mostly to Texas and New Mexico, the federal recall of the tainted produce went national over the weekend, and supermarkets across the country have removed the three suspect varieties from their shelves. On Monday, McDonald’s stopped adding a slice of tomato to hamburgers served in America and the Los Angeles Unified School District "indefinitely suspended" serving uncooked tomatoes in its cafeterias.

Food and Drug Administration officials are working rapidly to identity the contamination’s source — some reports say the search has narrowed to Florida and Mexico — while stressing that it’s safe to eat all tomatoes grown in Arkansas, California, Georgia, Hawaii, North Carolina, South Carolina, Tennessee, Texas, Belgium, Canada, the Dominican Republic, Guatemala, Israel, the Netherlands and Puerto Rico.

But stop and think for a moment about the breadth of that list. The reason so many countries are selling tomatoes to this country is because of Americans’ demand to have fresh tomatoes on their Caprese salads (and in their sandwiches and salsa frescas and gazpachos) all year round — and not just in the summer when they’re in season in the United States. This has created a global industry that now does $1.27 billion a year in business.

The notion that a globalized produce market will provide us with Chilean grapes in December and New Zealand plums in January is now taken as a given. And Americans’ assumption that industrially organized production and transportation renders the seasons irrelevant is true — but only up to a point.

For one thing, tomatoes and tree fruit grown and shipped in this fashion seldom come even remotely close to tasting the way a tomato or a peach is supposed to taste. More important for the purposes of this discussion, the same marvel of efficiency that makes it possible to pick a tomato in Guatemala and sell it fresh in a market in Bangor, Maine, a few days later creates a system that’s just as good at distributing disease as it is produce. When one packer’s tainted produce goes to three or four countries, what would have been a local problem becomes an international one.

Vulnerable though it may be, the global produce industry is hugely profitable, which is why the FDA is at pains not to replicate what happened with last year’s great spinach scare. After a number of people fell ill from eating contaminated spinach, the whole national market for leafy greens suffered a temporary collapse, even though it quickly was shown that the bad produce came from just a few fields in Salinas.

When what’s at stake is people’s continued willingness to spend more than a billion dollars a year on factory-grown tomatoes that taste like cotton, you can bet the feds are being particularly careful this time.

There is, however, a deeper issue to consider. For some years now, the International Monetary Fund and the World Bank have been encouraging Third World farmers to turn away from growing staple crops — rice, corn, wheat, etc. — and to concentrate instead on higher-value export crops, such as tomatoes and out-of-season vegetables and fruits, for the European and North American markets.

Agricultural economists argued that staples could be grown more efficiently in developed countries and then inexpensively imported. Growing pricey specialty vegetable and fruit crops was supposed to be a pathway up to the cash economy and out of the poverty of subsistence farming.

Higher oil prices, growing Asian affluence and a greater global taste for grain-fed beef, increasing use of biofuels and a weak dollar all have conspired to push global commodity prices up. Poorer nations are increasingly operating on the fringe of malnutrition. Take the case of Haiti, which used to grow all the rice its people consumed. Then international financial organizations began encouraging the country to buy its rice from the United States and have its farmers switch to growing … you guessed it, tomatoes. Haiti, where people recently were killed in food riots, now is the world’s largest per capita importer of rice.

So the next time you get the urge for insalata Caprese in March, it is worth wondering — as you stare at that plate of Guatemalan tomatoes and hydroponically grown Dutch basil — whether it’s a wise choice. As far as the taste goes, don’t ask.

How one Family Battles an Insurers & its Counsel

A family whose child wass molested by a hotel employee sues and finds itself a target of federal probes.

It might have been bearable if the horror had stopped when Paul Gayter and his wife Flora Nicholas learned that their 9-year-old daughter had been molested by a hotel employee during a family vacation.

Or if it had stopped when the hotel’s insurer, American International Group, decided on exceptionally tough tactics — endless depositions, private investigators and psychological tests — to prevent a payout to the family. Or when federal prosecutors, perhaps acting on a tip from lawyers for the insurer and hotel, started questioning the family’s immigration status (they’re from Britain) and launching criminal probes into their business dealings. Or when a settlement deal with the hotel fell apart and the battle headed back to court.

But it hasn’t ended. Eight years after their daughter was attacked, the Gayters’ fight grinds on.

Lawsuits have snaked through two federal trial courts and two federal appellate courts. At least 20 lawyers have worked on the matter, including litigators from some of the top firms in the country. Lawyers for the hotel have been admonished repeatedly for overreaching discovery tactics. Yet they’ve been able to bat down a jury trial.

Now, however, the FAmily is hoping to inflict some pain. On May 2, they filed suit in the U.S. District Court for the District of Columbia against the hotel, the insurer and several of the lawyers who worked against them, accusing the group of malicious prosecution for allegedly instigating the criminal investigation and immigration proceedings.n The family is seeking $5 million in compensatory damages and $10 million in punitive damages.

The case is no sure thing, but the family may be helped by a record showing the government eventually abandoned both the criminal and immigration investigations. Plus, after eight years of fighting, an uphill battle isn’t likely to cause much concern for the family.

In April 2000, the family traveled to St. Thomas in the U.S. Virgin Islands for a getaway. Just after they returned from the trip, their daughter read a section from the children’s book, "Chicken Soup for the Kid’s Soul," which counseled that if children are touched inappropriately, they should tell an adult.

The daughter told her parents that Bryan Hornby, director of Wyndham’s day care program, Kids Klub, had sexually molested her several times throughout their seven-day stay at the resort. They immediately called the police in the Virgin Islands — who arrested Hornby.

It turns out that the girl wasn’t the only victim. Two other cases were brought by families who said their children were molested by Hornby. The other two families agreed to settle for undisclosed amounts in April 2008, according to court documents filed in the Virgin Islands.

By March 2001, Hornby was convicted of unlawful sexual contact and sentenced to five years in prison. (He was released in 2006 and then deported to his native Zimbabwe.)

AIG, the hotel’s primary insurer, took the lead in assembling, and paying for, a defense team. It included Los Angeles solo litigator Bill Schroeder; the Virgin Islands firm Dudley Clark & Chan; and another Virgin Islands firm, Hymes & Zebedee. Three Am Law 200 players were also on the defense list: Reed Smith; Wilson, Elser, Moskowitz, Edelman & Dicker; and Baker & Hostetler. The insurance company also hired counsel for Hornby, even though it was no longer required to do so under Wyndham’s policy, according to a Dec. 12, 2001, letter from AIG to Hornby.

From the start, AIG and Wyndham played hardball: They wanted repeated psychological evaluations of the family and hired private investigators. They asked to speak with friends of the family and the daughter’s classmates, and took a two-hour deposition of the daughter’s school principal. The family recently filed lawsuit says that investigators also stole the family’s garbage to obtain evidence.

The goal, according to court papers filed by the defense, was to show that the family were overstating their injuries and had a history of lying on government documents, including their

IMMIGRATION QUESTIONS

In May 2002, Douglas Beach, of counsel at Dudley Clark, subpoenaed the familys’ immigration records. Along with Schroeder, the Los Angeles solo, he deposed the father in Washington, D.C., at the offices of Baker & Hostetler.

The lawyers zeroed in on the familys’ visa status. The father and his wife had come to the United States in 1996 to work for a Northern Virginia advertising company. In 1999, they lost their jobs, but quickly started working with a Boston-based sports marketing company. Under an agreement with his employer, the father started an advertising company of his own.

According to a court filing, defense lawyers believed the arrangement was a cover for a money laundering operation. In court documents, they outlined a scheme where the father was allegedly sending $18,000 a month in payments to his former employer, which in turn was kicking back a portion of that money n the form of salary payments.

The father and his wife would be deposed six more times.

In 2003, the family had enough and refused to comply with a subpoena for access to their business computers. Lawyers for the plaintiffs turned to judges in the U.S. District Court for the Eastern District of Virginia to force the family to comply. And when they were rebuffed, the attorneys took the matter to the 4th U.S. Circuit Court of Appeals.

In a July 2004 ruling, the 4th Circuit affirmed the lower court’s ruling, calling the request "unduly burdensome" and "harassing."

With their discovery shut down, Wyndham’s lawyers sought help elsewhere: the federal government.

For a while, it looked as if the family had the government on its side. Back in May 2004, Attorney General John Ashcroft honored them for their work with the Center for Missing and Exploited Children. In response to their child’s ordeal, they had marshaled an ad campaign to raise awareness about child molestation.

Within six months, prosecutors were investigating the family for money laundering and immigration fraud. The family, in their suit, say that attorneys and the insurer supplied information from the civil battle to help the government launch a criminal investigation.

It’s a fairly common occurrence, say former prosecutors not involved in the litigation for private lawyers ri regularly refer potential criminal cases to federal prosecutors, but is incumbent on any prosecutor to keep their antennae up and beware of ulterior motives.

The family learned they were targets of a probe in December 2004. A business associate told them that he had been served with a grand jury subpoena to testify, says the family’s current lawyer. He says when they into the matter, they discovered their clients were indeed under investigation for visa fraud and money laundering.

In their May 2 complaint, the family say thatan Assistant U.S. Attorney in the Eastern District of Virginia handled the probe, along with a Special Agent with the Office of Labor Racketeering and Fraud Investigations in the Labor Department’s Office of Inspector General, as well as a Special Agent with U.S. Immigration and Customs Enforcement.

According to the complaint, information in the government’s possession included DVD recordings of the father’s deposition.

In September 2006, the family learned that the government wasn’t going to pursue criminal charges. Their immigration status, however, was a different matter. The father and his counsel learned that month that the wheels had been set in motion for deportation. The father was ordered to appear at the U.S. Citizen and Immigration Services office in Fairfax, Va. Once there, he was arrested for immigration violations, was fingerprinted, and had his mug shot taken. The father says he was also detained in a holding cell several hours before he was allowed to leave after posting a $5,000 bond.

In May 2007, U.S. Immigration Judge John Bryant granted a motion by the Department of Homeland Security, which houses Immigration and Customs Enforcement, to terminate the case. The motion gave no reason for the change of heart.

By the end of the government investigations into their business and immigration status, the family say they had spent some $400,000 in legal fees.

A proposed settlement would have more than covered the spending. In July 2005, the parties agreed to settle the case on the eve of a trial. The payout: $2.1 million.

But disputes raged over fine points, such as which family member would receive the money. And the funds were never released.

After two years of haggling, the family moved to restore the case. Chief Judge Curtis Gomez, in the Virgin Islands, granted the motion, ruling last November that the case was still active. He ordered pre-judgment and post-judgment interest on the money, according to court documents. Counsel has appealed the decision to the 3rd U.S. Circuit Court of Appeals, where the issue is currently being briefed.

The family hired new counsel on April 23 and their former counsel withdrew his representation on April 28. It is unclear why the change took place.

In addition to the malicious prosecution allegation in their May 2 complaint, the family are claiming abuse of process, intentional infliction of emotional distress, and false light. Named in the suit are AIG, the Wyndham resort (now known as Wind International Inc.), and its lawyers, Schroeder, Dudley Clark & Chan, and Beach.

Early Litigation Settlements Often Save Money

 



A study of court settlements in personal injury lawsuits against businesses estimated companies could save an average total of $114,000 per claim or $670,000 for severe injuries by promptly settling cases instead of fighting them in court.

The study, which was published this month in the Columbia Business Law Review, also projected $32,000 in savings from lower legal expenses, or about $211,000 for cases involving severe injuries.

The study based the projections on how much it would cost businesses to make "early offers" to pay out-of-pocket medical expenses and wage losses of injured claimants. The quick settlements would reduce legal fees and "pain and suffering" damages.

Tainted Tomatoes?

Since mid-April, 21 Texans  were infected with the Saintpaul strain of the disease. At least seven were hospitalized.

No deaths were reported.

Some supermarkets immediately responded to the warning.

Victims encountered the tainted tomatoes in a variety of settings some at home, some at restaurants.

Nationwide, 40 people have become ill in outbreaks from Arizona to Illinois. Seventeen people received hospital treatment.

Insurer Ordered to Pay Grocer

A Federal Court Jury ruled that United Fire & Casualty Insurance Company pay a $21 million award, almost exactly what United Fire & Casualty Insurance Co. still owed to repair the stores — $16.7 million — plus penalties for delaying payment.

The jury’s verdict, capping a trial that lasted several days over two weeks.

Each store was assigned money to cover building damage, business interruption, tenant improvements and loss of business personal property from windstorm and from vandalism, theft or looting.

 

Settlement reached in Denver Jail death

The family of Emily Rae Rice, who died while in custody at the Denver City Jail, has reached a $4 million settlement with Denver Health Medical Center.

As part of the settlement, Denver Health agreed to significant changes in patient screening and treatment at both the medical center and the jail.

Rice, 24, died Feb. 19, 2006, in the jail 20 hours after she was released from the hospital. She had suffered a lacerated spleen and liver and bled to death from injuries she sustained in a drunken-driving crash.

Rice’s family had filed a wrongful-death lawsuit in U.S. District Court against Denver Health. The settlement reached does not apply to others named in the suit — the Denver Sheriff’s Department and several deputies who were working in the jail when she died.

But besides the money, the Rice family was gratified by the changes Denver Health agreed to make, particularly checking patients for vital signs at intake and release and every four hours.

Consumer Reports to rate hospitals

A magazine long known for rating cars and washing machines is branching out to hospitals, encouraging people to shop around for ones that provide "conservative" instead of "aggressive" care.

Relying on data already compiled by researchers at Dartmouth College, the service launched by Consumer Reports on Thursday uses a simple, if counterintuitive, yardstick:

"Aggressive" hospitals keep people with chronic diseases hospitalized more days during the last two years of their lives. And doctors affiliated with aggressive hospitals see chronically ill patients more often.

"Conservative" hospitals provide the fewest doctor’s visits and shortest hospitalizations in those final years of life.

For older people with conditions such as congestive heart failure, cancer, dementia or diabetes with organ damage, the yardstick can be useful in deciding whether a hospital’s treatment style matches their needs.

The Health Ratings Center joins an expanding array of rankings, grades and evaluations that compare hospitals or doctors. Some are buried in government reports, while others are assembled by nonprofit groups, consumers or businesses.

Settlement in the biggest class-action suit

More than 160 million Americans would be able to learn their all-important credit scores at no charge — and with no strings attached — under a settlement by credit reporting giant TransUnion Corp. of a long-running class-action lawsuit.

The agreement would entitle consumers to at least six months of a TransUnion monitoring service, giving them access to the latest information in their credit reports as well as their current scores at any time.

The service also would notify consumers by e-mail of significant changes to their files, including reports of late payments or accounts opened in their names. The latter information could help thwart attempted identity theft.

TransUnion normally sells the service for $59.75 or more, giving the settlement a value that could top $10 billion.

Extracting free services from an industry that many Americans love to hate could give them a measure of satisfaction. On a more practical level, the information could be especially useful for people who are borrowing more because of difficulties caused by the slowing economy or who simply want to find loans or cards with better terms.

A credit report supplied by TransUnion or its rivals, Equifax Inc. and Experian, contains information about your current and recent home and auto loans, credit cards and other credit accounts, including how much is borrowed, your credit limits and whether payments are made on time.

A credit score, which is calculated using a formula based on that data, is a three-digit number that can determine what interest rate you pay on a loan or credit card, or whether you even are approved for one.

Federal law entitles everyone to a free copy of his or her credit report once a year from each of the three major credit-reporting companies, but it doesn’t provide access to credit scores.

The case being settled stems from a business operated by TransUnion that sliced and diced data from the Chicago-based company’s massive credit files to generate customized lists of consumers. Retailers, lenders and other businesses would buy the lists to use in their marketing.

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