According to the National Fire Protection Association, an estimated one out of every four fire-related deaths in the United States in 2006 was caused by smoking materials (i.e. cigarettes, pipes, cigars, etc.), making smoke materials the leading cause of fire deaths. Not only do smoking materials-related fires take lives, but they also cause millions of dollars in property damage each year. In 2003, New York adopted a fire-safety standard for cigarettes that required all cigarettes sold in New York to have low ignition strength. Tobacco companies were required to sell new "fire-safe" cigarettes that had bands around them to stop them from burning if not puffed on regularly. The standard became effective in June 2004 and roughly a year later there were already reports that the annual death toll for cigarette related fires had fallen by a third. Today, as many as 38 states have adopted similar fire-safe cigarettes standards, and Nevada is now joining the trend.

On March 3, 2009, Nevada legislators introduced Bill AB 229, seeking to set up the requirements and performance standards for fire-safe cigarettes to be sold in the State. The new requirements will apply to all cigarettes sold or offered for sale in the state but will not apply to cigarettes purchased by wholesalers before the effective date of the bill if the wholesaler can show that the Nevada cigarette revenue stamps were affixed to packages before the effective date and that he purchased a similar quantity of cigarettes during that period the previous year. As in New York, cigarettes will be required to have bands on them that act as "speed bumps" in the burning process. There are additional labeling requirements and all cigarettes must be recertified under the safety standards every three years.

After an accident, a party will often accept a given sum of money for repairs in exchange for which he or she releases the right to sue for any and all present and future property damages arising out of that accident. If the indication to release liability for only property damage is not made clear, however, a party may also unknowingly sign away his or her right to sue for bodily injuries that may present themselves several weeks or months after an accident.

Common language in a Release of Property Damage includes a statement discharging a party from "any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever, which the undersigned now has/have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, property damage and the consequences thereof resulting or to result from the accident, or event which occurred on or about [date of incident]."

Alone, however, this language leaves open the interpretation that the party is also signing away all liability for personal injury resulting from said incident.

There is an even greater risk of misinterpretation if the document includes further ambiguous language, such as indemnification from "any and all further liability, loss, damage, claims of subrogation and expense, arising because of any damages, and, if necessary, and, ... to satisfy on their behalf any judgment against them arising in any way out of aforesaid accident." Such language alone does not make it clear that the release is for property damage only.

A document purporting to release a party from property damage only should include a provision making such intention clear. For instance, the party can require acknowledgement that "this is a complete release of property damage only and it is understood and agreed that it does not constitute a release for any bodily injury resultant from this accident."

Without a clear indication that the release is for property damage only and not for bodily injury, titling a document "Release in Full of All Property Damage Claims" is not enough.

Under Nevada law provides statutory authority for hospitals to place a lien on certain insurance proceeds. NRS 108.590 provides that "Whenever any person receives hospitalization on account of any injury, and he, or his personal representative after his death, claims damages from the person responsible for causing the injury, the hospital has a lien upon any sum awarded the injured person or his personal representative by judgment or obtained by a settlement or compromise to the extent of the amount due the hospital for the reasonable value of the hospitalization rendered before the date of judgment, settlement or compromise."

This statutory lien provision does not extend to underinsured motorist coverage, although in some states hospital liens do attach to UM coverage. Why not in Nevada?

The Nevada Supreme Court addressed the issue in Washoe Medical Center, Inc. v. Reliance Ins. Co., 112 Nev. 494 (1996). There, the Court articulated why hospital liens do not attach to first-party UM coverage.

The Court noted that the express language of the statute does not authorize attachment to UM coverage. NRS 108.590, quoted above, refers to "damages from the person responsible for causing the injury." An injured party's own insurance provider, through which received UM coverage, cannot be included as a person responsible for causing the injury. Thus, the Court concluded that "hospital liens do not attach unless an injured person claims damages from the third-party tortfeasor and the injured person is subsequently awarded damages pursuant to a judgment, settlement or compromise with the third-party tortfeasor or the third-party tortfeasor's insurance carrier."

Since August 2008, about 550 people have gotten sick and eight people have died from the salmonella outbreak. Thousands of peanut butter products have been recalled. The law firm that filed the first lawsuit over the recent salmonella outbreak in certain brands of peanut butter products has added the Kellogg Co. as a defendant.

Bill Marler, a partner at Seattle's Marler Clark, said that Kellogg was added as a defendant because the company manufactured the peanut butter cracker sandwiches and conducted at least two of its own inspections, through a third party, of the Peanut Corp. of America's Georgia plant in 2008. Kellogg spokesperson Kris Charles said the company does not comment on litigation. Peanut Corp. of America has denied wrongdoing.

For the full article, please click here.

On March 11, Nevada Legislators introduced Bill A.B. 300, amending existing helmet requirements for motorcyclists. Under the new bill, motorcyclists over the age of 21, who have had their motorcycle license for at least a year, and who have completed a safety course, are no longer required to wear protective headgear while riding on highways. All motorcyclists that do not meet these criteria are still required, by law, to be protected. Passengers over the age of 21 are also no longer required to wear protective headgear.

In 2000, Florida amended a similar law enacted in 1967, removing the requirement that motorcycle riders over the age of 21 wear a helmet. Those riders over 21, however, who did not wear helmets, were required to have an additional $10,000 in medical insurance. The U.S. Department of Transportation, National Highway Traffic Safety Administration filed a report in 2005, evaluating motorcycle crashes the two years before, and the two years after the repeal of Florida's helmet requirement. Importantly, between 1997 and 1999, of the 515 motorcyclists killed in the state, 9.4% were not helmeted. Between 2001 and 2003, however, 60.8% of the 933 motorcyclists killed were not wearing a helmet. The incidence of incapacitating injury suffered while not helmeted increased from 20.8% in 1999 to 50.3% in 2001. The study also revealed that while riders under 21 were required to continue wearing helmets, actual compliance decreased after the law was changed. Similar to a trend seen in Arkansas, Texas, and Louisiana, Florida saw an increase in motorcycle registrations coincidental with the repeal of its helmet requirement.

The majority of states have partial laws similar to Florida's law and the law proposed in Nevada but it is likely that Nevada will experience trends similar to those seen in other states after the repeal of a helmet requirement. The American Motorcyclist Association is urging its members to contact their legislators to tell them to say "YES!" to A.B.300, but time will tell if the "right to ride with freedom of choice" is worth the added risk.

Twitter.com is a website that allows members to record their thoughts in 140 character-blogs, twenty four hours a day. Similar to "status" postings on Facebook, Twitter blogs allow a member to share with the rest of the Twitter world, what he is doing or thinking at that moment in time. A recent $12.6 million jury verdict against Stoam Holdings could be overturned because a juror posted blogs on Twitter during the trial, an indication of just how powerful this seemingly harmless practice could be. Johnathan Powell, a juror in the Arkansas case against the building materials manufacturer, posted potentially biased blogs on Twitter from his cell phone.

Before Powell appeared for jury duty, he posted a message saying that he was "trying to learn about Jury duty for tomorrow, but all searches lead me to Suggestions for getting out of it, instead of rocking it." A message posted the day he appeared for jury duty stated, "I guess I'm early. Two Angry Men just won't do."

Messages sent during trial included, "oh and don't buy Stoam. Its bad mojo and they'll probably cease to exist, now that their wallet is 12m lighter" and "So Johnathan, what did you do today? Oh, nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else's money." The first of these also included a link to Stoam's website.

Stoam Holdings's attorney has filed a motion requesting a new trial, alleging that Powell sent as many as eight Twitter messages during the trial and that he was not impartial. In his motion, Drew Ledbetter argued that "Juror Jonathan's public statements show us that he arrived at jury duty with the desire to get on the jury and 'rock' the jury. He researched this topic in advance. He arrived as a self described 'angry' man."

There is some speculation as to the actual timing of Powell's messages. The plaintiff's attorney, Greg Brown argues that a message that was time stamped 2:43 p.m. probably occurred after Powell was done with the trial. Drew Ledbetter, argues, on the other hand, that the time stamps speak for themselves. Powell contends that the time stamps correlate to the viewer's time zone settings, not the messenger's.

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The U.S. Supreme Court in a 6-3 decision upheld a Vermont jury's decision that Diana Levine, the plaintiff in the Supreme Court case Wyeth v. Levine could hold the drug manufacturer accountable for the injuries she suffered--which included the loss of her arm--after taking one of Wyeth's medicines.

Today's decision in favor of Diana Levine proved that even if you are just one person, you can fight for justice and hold your wrongdoer accountable."

The full article can be found here.

On February 12, 2009 Representative Hank Johnson of Georgia introduced the bipartisan Arbitration Fairness Act of 2009. That Act is meant to safeguard citizens from being forced into entering arbitration and would make entering arbitration possible only after the dispute has arisen as to protect consumers from corporations.

Mandatory binding arbitration clauses are hidden in the fine print of everything from cell phone, credit cards, franchise and employment agreements to nursing home care contracts. These clauses force consumers or employees to give up their right to take their case to court in the event there is a dispute with the corporation.

The Arbitration Fairness Act will help people like Jamie Leigh Jones, who was raped, drugged, beaten, and then confined to a shipping container by KBR/Halliburton employees while working in Iraq. Because of a clause placed in her employment contract, KBR tried to force Ms. Jones to submit to a binding, secret, non-appealable arbitration. Ms. Jones had to fight to obtain access to the justice system because she unknowingly signed an arbitration clause as part of her 18-page employment contract.

For more on this issue, please click here.

A recent editorial in Modern Medicine reported that the Nevada Supreme Court will be deciding whether or not pharmacies can be held liable for death or injuries caused by a customer under the influence of prescription medication. In June of 2004, Patricia Copening, while under the influence of hydrocodone, drove her car into two men who had pulled over to fix a flat tire. Robert Martinez was severely injured and Gregory Sanchez Jr died as a result of the accident.

Under Nevada law, prescriptions are tracked in an effort to reduce drug abuse. A year before the accident, the Prescription Controlled Substance Abuse Prevention Task Force informed the doctors and pharmacists who supplied Copening with hydrocodone that she could be a drug abuser. The task force urged them to "use their professional expertise to assist patients who may be abusing controlled substances." Because the pharmacies were adequately warned, the victims' attorneys argue that they are liable for continuing to fill the prescriptions.

Judge Douglas Hernon, for the Eighth Judicial District, dismissed the pharmacies from the lawsuit arguing that Nevada law does not provide for a legal duty to refuse to refill a prescription even if there does exist an ethical duty to protect the public.

Senior Editor, Alania Scott, opined that if the Supreme Court rules in favor of the plaintiffs, it will mean that any pharmacist who is aware that a customer could be a potential drug abuser "must call the doctor, or stand on the legal duty to refuse to fill the prescription."

Nevada Legislators introduced Bill AB200 on March 5, aimed at expanding Nevada's "Good Samaritan" Law. Under existing law in Nevada, many medical professionals are shielded from civil liability for rendering care, gratuitously and in good faith, in emergency situations. Exceptions to such liability exist where the health care provider already has a patient/physician relationship with an individual or where a medical professional is grossly negligent, reckless or engages in willful and wanton conduct.

The new legislation expands this protection to psychologists and expands protection to medical professionals who render care in good faith to help victims of natural and man-made disasters.

KRNV-TV reported that the Bill was challenged as too vague by Graham Galloway of the Nevada Justice Association, representing trial lawyers. to see article click here

A USA Today editorial opined that the Wyeth v. Levine decision opened a new door for plaintiff's rights. During the Bush administration manufacturers were able to avoid lawsuits for defective products as long as the product met federal regulations. The Wyeth decision, however, opens the door for plaintiffs to sue manufacturers despite compliance with federal standards. The editorial argues that the courts will have to strike a balance to protect the interests of both consumers and companies. "States should allow suits but set a high burden of proof on the plaintiffs."
Bert Rein's article in USA Today sets forth an opposing view. He argues that the decision actually creates uncertainty for patients and doctors. He emphasizes that the FDA was created because decisions regarding the risks and benefits of prescription drugs and medical devices should be left up to the experts. Allowing a jury to make these decisions based on an isolated catastrophic event places the interests of one individual over the health interests of the public as a whole.

The Supreme Court's March 4th decision in Wyeth v. Levine could mean increased responsibility for drug companies to adequately warn clinicians and consumers of a drug's risks. Affirming a jury verdict in favor of a plaintiff injured as a result of inadequate drug label warnings, the Supreme Court held that the drug label's warnings were inadequate, rejecting the argument that FDA approval of a label is sufficient to shield a drug manufacturer from state law liability.

The plaintiff, Diana Levine, received the drug Phenergan, an antinausea drug manufactured by Wyeth, by the "IV-push" method (as opposed to the safer "IV-drip" method). The drug was injected directly into her vein, after which it escaped into her artery, caused irreversable gangrene, and resulted in the amputation of her forearm.

Levine brought suit alleging that Wyeth had failed to provide adequate warnings on its label of the risks associated with administering Phenergan by the IV-push method. The jury found in favor of Levine, determining that Levine would not have suffered her injury had Wyeth provided an appropriate warning. Wyeth argued in return that Levine's state law claims were preempted by federal law because Phenergan's labeling had been approved by the FDA. The Supreme Court granted certiorari to determine whether the FDA's approval of drug labels "preempt[s] state law product liability claims premised on the theory that different labeling judgments were necessary to make drugs reasonably safe for use."

Wyeth argued that it was impossible to comply with the state-law duties underlying Levine's claims and federal labeling requirements at the same time. The Court rejected the argument pointing out that under the FDA's "changes being effected" (CBE) regulation, a drug company may make certain changes to a label upon filing a supplemental application with the FDA but need not wait for FDA approval. "The CBE regulation permitted Wyeth to unilaterally strengthen its warning, and the mere fact that the FDA approved Phenergan's label does not establish that it would have prohibited such a change."

Wyeth also argued that Levine's tort claims were preempted because they interfered with "Congress's purpose to entrust an expert agency to make drug labeling decisions that strike a balance between competing objectives." The Court also rejected this argument, finding that Congress, being well aware of state-law suits, would have enacted a preemption provision if it determined that state law claims were an obstacle to its objectives.

to see full opinion, click here

Congressman John Dingell introduced the Food and Drug Administration's Globalization Act in late January 2009, legislation that if passed would help would help ensure the safety of the nation's food, drugs, medical devices and cosmetics and help restore confidence in the safety of the nation's products, according to the American Association for Justice.

"With the onslaught of reports of contaminated spinach, tomatoes, beef, pet food, and now peanut butter, it is clear increased funding and authority is needed at the FDA like Congressman Dingell's legislation provides," said Bill Marler, a food safety attorney and member of the American Association for Justice's Foodborne Illness Litigation Group.

Find the full AAJ article here.

A year after procedures involving the reuse of syringes at the Endoscopy Center of Nevada led to a hepatitis C outbreak, Nevada legislators have proposed new regulations to require higher standards in Nevada health care.

The Las Vegas Sun reports that the pending legislation would: