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Punishment Punishment??

I could write about Ed… with cherries on his head. What? There are just some things that are difficult to explain. For instance, in 2016, Americans spent a reported $5.3 million dollars buying U.S. flags… that were made in China. Things that make you go hmmmm!

This blog is about punishment legislation in Virginia. Legislator thinking is the confusing part. And I will present some thoughts, but I cannot promise that I can explain it. Of course, you have to remember what they say about the value of free… and that includes free blogging.



The headline says, “SB 895 Punitive damages; raises cap from $350,000 to $500,000“. In Virginia, this legislative session had a Senate bill that was introduced to increase punitive damages from $350K to $600K. Then, it was amended to an increase to $500K instead.

It “sailed” through the Virginia Senate committee by a vote 24-15. The question is, “why would someone vote yes or no for an increase in punitive damages?”. Here’s how the voting of the senators was registered.

YEAS–Barker, Chafin, Chase, Dance, Deeds, Ebbin, Edwards, Favola, Lewis, Locke, Lucas, Marsden, Mason, McClellan, McPike, Obenshain, Petersen, Saslaw, Spruill, Stanley, Stuart, Surovell, Vogel, Wexton–24.

NAYS–Black, Carrico, Cosgrove, DeSteph, Dunnavant, Hanger, McDougle, Newman, Norment, Peake, Reeves, Ruff, Sturtevant, Suetterlein, Wagner–15

It it now headed to the Virginia House Courts of Justice Committee vote, before heading to the full floor. But again, why would someone be against punishment damages.

Just a couple of thoughts. The punitive damage amount has not been increased in Virginia in 30 years. Insurance is required to cover the punitive damage verdict, if such is awarded by a jury and there is enough insurance to cover it. Also, there is a very high legal standard to meet, to get punitive damages to a jury. Otherwise, a judge will strike it from the case.

So again… what makes a legislator vote against or for it.

I think that those against the punitive damage increase, view it as an issue that is related to being pro-business. If you vote against it you must be helping Virginia in bringing more new businesses to the Commonwealth. Also, you are keeping insurance rates down, because you are helping to keep verdicts down. Verdicts that insurance would otherwise have to pay. Does that sound like good logic?

I think you probably know where I am leaning, but I will say that I am all for bringing new businesses to Virginia; and I do want insurance rates to be lower. In the coming days, I will have some follow-up on the insurance rate issue. Believe me! I want lower rates!

Now here is what we know. When you are starting a business in Virginia or you are thinking about coming to Virginia to do business, you are not asking anyone, “Do you know how much I will have to pay in punitive damages?”. Why? Because no one believes that they will do such acts that are so egregious, that they will be responsible for punishment damages. No one asks “I wonder what will happen when I drive drunk the next 13 nights“.

Punishment damages also serve to protect Virginia citizens. We do not want companies coming to Virginia and intentionally hurting its citizens with their conduct or their products. Remember, it’s not about doing something that causes injury with a mistake or accident… it’s about causing harms with reckless disregard. The legal term includes “willful and wanton” which basically means a conscious or intentional act. That’s why a legislator should be protecting Virginia citizens.

I look at those legislators who have voted “no” and I think, “why don’t they care about their constituents?“. Do they also want to protect drunk drivers?

Now that probably seems a bit harsh. But, I am guessing they do not even realize why they are voting against an increase, for something that has been in effect for 30 years. These same legislators are probably not telling Dominion Power to roll back rates to 1980.

A business who does such bad intentional acts should not be able to get away with it, by simply being responsible for $350K. That is nothing to many businesses. Otherwise, and they can just factor bad behavior into their budget.

As to the insurance increase; if a policy is on an individual, they only have to cover the amount of coverage that is written. In Virginia, a minimum policy is $25K. If it is a business, then typically there are assets to cover a verdict. In the instance when there is coverage… they have already charged significant premiums to cover these insurance amounts. So there should be no increase.

Have I convinced you either way? Well, let’s just all hope that we do not deal with people or businesses that commit such acts that are even worthy of consideration for a punishment damage verdict. In the meantime, it will be interesting to see what the House thinks about this issue and whether the increase will ultimately become law.

On a different note for pic o’ day… this can be explained!


Facts and Caffeine Drink Lawsuits

There are two words in the English language that are spelled with all the vowels in order: abstemious and facetious. To this day, I am still trying to figure out why “and sometimes y was part of my education. Poor y!

John Montagu, the 4th Earl of Sandwich, had a habit of eating beef between two slices of toast, so he could eat without interruption of his card game. Hence… he is credited with “inventing” or naming the sandwich. Is that an example of necessity is the mother of invention?

It is reported that during the years that she was the First Lady, Jacqueline Kennedy smoked 3 packs of cigarettes a day. Which causes me to post this advertisement for cigarettes from the early 1960’s. You wouldn’t expect an NBA player today to be a spokesman, would you?


These three random items all serve as a prelude to a tragic sequence of events that has now led to a lawsuit. An Idaho man was found dead, after regularly consuming at least four energy drinks a day. ( His family has now filed suit against the manufacturers of Red Bull, NOS and Monster beverages.

The lawsuit alleges that the 25-year-old man was unaware of the risks associated with these drinks. It goes on to state that the manufacturers should also warn consumers not to use their products with alcohol or while exercising. The family also believes that the manufacturers should also warn that four 16 ounce drinks per day are too many. I have attached the article, because I am interested as to whether you think that the manufacturers are at fault.

I started out this blog by reciting the invention of a sandwich, because these caffeine drinks are basically a way that people, including students and truck drivers, are trying to stay awake and alert. Remember, Necessity is the mother of invention. Should they believe that it could have impact on their health? Which is also why I threw in that last fact about Jackie Kennedy. Maybe in those days, they really believed that cigarettes were a way to relax. But three packs?

Why did I originally mention the two words and my fascination with vowel placement? Really nothing related to the blog, but it does prepare you for some holiday Trivial Pursuit!


And for pic o’ day, here is another of my “ole faithful” holiday pictures. A curious Nativity scene for sure!

manger awry

A Conspiracy Conspiracy?

First, let’s start with some fax humor… because you don’t see fax humor very often!


During football watching on Sunday afternoon, multiple times a FedEx television commercial ran from a supposed Conspiracy Bookstore. The employees in the commercial were explaining their theories on a recent hike in online book sales. It wasn’t funny the first time. Not funny the 20th time; which might explain why you don’t remember it.

One of the employees credits galactic entities for buying all the books to conceal their alien secrets. The other worker credits FedEx because of their affordable deliveries. The FedEx guy just shrugs at the conspiracy theory.

By the way, do you buy into the conspiracy of Apple slowing down old phones with their constant updates? For several years, the Internet has been warning (as I use the Internet like a person identifier) that Apple keeps sending updates, to cause your old phone to slow down enough to irritate you and make you buy the new phone.

All I know is that I am tired of having constantly being asked by my phone and iPad whether I want to download my update now or at midnight. No is my answer. I was perfectly happy with my phone and iPad until your constant pestering. But I digress!

The real conspiracy that recently grabbed my attention (Reuters News)  relates to a pharmaceutical company. The New Jersey Attorney General has accused Insys Therapeutics  of engaging in a fraudulent scheme to boost the sales of their fentanyl-based cancer pain drug. Recently, Massachusetts announced a $500,000 settlement with Insys to resolve similar allegations.

The New Jersey attorney is claiming that the drug company had created a fraud scheme to encourage the prescriptions of a fentanyl-based pain medication, usually reserved for cancer patients. The intent was to get doctors to prescribe it broadly to many of their patients; not just those suffering great pain.

The New Jersey filed lawsuit alleges that Insys paid kickbacks to doctors, including sham speaker fees to induce them to prescribe the drug, defraud insurance companies into paying for it.

The lawsuit states that Insys’ greed put hundreds of lives in jeopardy and led to the 2016 overdose death of a New Jersey woman, who was prescribed a fentanyl-based medication to treat fibromyalgia. “The conduct alleged in our lawsuit is nothing short of evil,” Porrino said in a statement.

The NJ lawsuit was filed on the heels of the Massachusetts Attorney General Healy announcing that Insys would pay $500,000 to resolve similar allegations of schemes and kickbacks. (Doesn’t sound like much of a punishment. Right?) The political rhetoric would lead us to believe that this drug company is just plain evil and needs real punishment.

Fentanyl is a powerful and highly addictive drug with deadly consequences, yet this opioid maker aggressively marketed its product and made illegal payments to providers to boost sales,” Healey said in a statement.

Now that’s what I call a conspiracy. Just not one that really surprises me.

And finally for pic o’ day, here’s one from the past that always makes me laugh. Some explanation for that conspiracy?


The Hidden Persuasion of Why

I saw a sign the other day that said, “I’m Busy. You’re Ugly. Have A Nice Day!” It’s crazy. But if I think about that, it irritates me. And the person that posted it probably thought it was funny, or they didn’t think at all. I guess I just shouldn’t wonder why someone would post that sign.

Is there a hidden meaning. What something is. What something means.

While in college, I attended a weekend political management school. Political consultant Morton Blackwell had founded The Leadership Institute to help prepare students in politics, government and the news media. (info here)  I thought that the seminar was amazing.

He taught us how to create excitement with flashing cameras; never give a bureaucrat a chance to say no. For instance, it was recommended to just set up brochure tables and hand out campaign material rather than waiting for campus zoning permits. Or, schedule organizational meetings, instead of waiting to be a recognized college campus official group. (it’s better to ask for forgiveness rather than ask for permission). Just getting things done!

In the realm of persuasion,  don’t let a candidate have a picture taken with an alcoholic drink in their hand. Make sure that you always wear your name tag on your right lapel, so people can easily shake your hand and look directly at your name tag.

Little items of persuasion that make a difference in a political campaign. It could have also been called “How To Persuade With More Than The Spoken Word”. I guess that’s why they say that a picture is worth a thousand words! 

As I got older, I found persuasion in the practice of law. About ten years ago, we were involved in the representation of clients with claims against pharmaceutical giant Merck,  relating to their manufactured drug, Vioxx. It was determined that Vioxx, an anti-inflammatory non-steroidal drug, was causing heart attacks and strokes and Merck knew it.

Ultimately, Merck was fined or sanctioned over 950 million dollars for conduct relating to pushing the drug for off-label use and other illegal marketing. (CNN) One Merck sales rep admitted to CBS (article here) that “I knew damn well it was dangerous”. Still, even after knowing the overwhelming evidence of the dangers of Vioxx, the company continued to push sales, and millions of prescriptions were still written.

The company created a high pressure sales training program to continue to sell the drug. It was ultimately revealed during litigation that the company told their 3000 sales people that they were prohibited from telling doctors about the studies that showed increased risks of strokes and heart attacks.

The sales people were specially trained in body language to create empathy with the doctor. They were taught persuasion techniques that included how to shake the doctors’ hands, how to use verbal and non-verbal cues to subconsciously raise their level of trust. All this training was heightened to help push Vioxx, while the company must have known that ultimately the medication would be pulled from the market.

Ultimately, the sales techniques came to an end. Merck entered into a global settlement of 4.85 billion dollars to settle over 27,000 claims nationwide. It was one of the largest civil settlements ever. (ABC News)   

When I see that the new healthcare bill being pushed through Congress, I often think about the various pressures that are being persuasively applied to these legislators. Why are some legislators trying to include provisions in a healthcare bill that would give immunity to pharmaceutical companies. Hidden persuasions that disguised in healthcare.


And for our pic o’ day…


Some Weekend Food Thoughts

I am ready for Monday, but this picture did make me smile:


It’s not unusual to go to a social media site and see food postings. It could be a recipe, or a cake, or what someone ate in their quest for health. So what should we eat? What really matters? (although I do like Pie Day!)

This weekend, I watched a documentary titled What The Health on Netflix. I have attached the film’s website right here because it can also be watched online. The website describes the film with this:

The film exposes the collusion and corruption in government and big business that is costing us trillions of healthcare dollars, and keeping us sick.

I was fascinated to learn that there are as many hogs as people in North Carolina… and what that means for the people in North Carolina.

The film questions why the American Cancer Society, American Diabetes Association, The Susan Komen Foundation and the American Heart Association all do not advocate eating to prevent. That includes looking at their websites and trying to interview their CEO’s.

The website discusses meat and dairy. You might not enjoy certain foods after this film. And why isn’t there a cheeseburger protection law? The film holds itself out as trying to “educate people on the impact of processed animal foods on personal health.

Some would watch this film and not be effected by it. It’s called Attrition Bias. “It’s not going to happen to me”. That’s all I’ll say about it. You might even question the Paleo Diet. Just something to think about!


And for our pic o’ day, I relate to this!


What Do Those Signs Mean?

When I saw this picture, I knew I had to start the blog with it. I think I live by this mantra!



We signed up a new client yesterday, who was hit by a truck while leaving a grocery store parking lot. The grocery store has signs hanging on several of their poles that say, “These premises are under closed circuit camera surveillance for your protection“.

Immediately, our investigator walked into the store to ask about the surveillance video, to help us prove our case. The manager just smiled and then admitted that they really didn’t have any cameras, just the signs. I guess it’s a bit like having a “Beware of Dog” sign… without owning a dog.

The “surveillance signs” seem like a good metaphor to lead into a quick discussion of some legislation being debated in Congress. H.R 1215 has been introduced by Representative Steve King (R-Iowa). It is known as the Protecting Access to Care Act of 2017. For the purposes of this blog, I won’t get into an entire discussion of  the pros and cons of Obamacare or providing health care for the entire country. That would put us into a blog of sleepy time. Instead, I am just going to mention a few highlights of this bill.

The title of the bill relates to health care, but amendments also include (H.R. 382) which indicates the bills intent to “provide improved medical care by reducing the excessive burden the liability system places on the health care delivery system”. That has a special meaning to insurance companies.


(Or just meander through)

A. A federal $250,000 non-economic damage cap on lawsuits to override state laws; B. elimination of naming doctors and drug companies in a single lawsuit that involves a claim relating to a prescription; C. establish a statute of limitations federally that restricts filing a lawsuit after 3 years, even if any state has a longer statute of limitation or even if the person injured did not know that they were hurt from something; a restriction of a percentage that a lawyer can charge for representing someone (although, there is no restriction on what can be charged by lawyers to defend the claims), D. and an elimination of joint liability for economic and non-economic damages in the same claim.


This bill would require PLAINTIFF experts in any malpractice case to meet the following requirements: First, an expert would have to sign an affidavit 90 days prior to filing suit to outline the areas of malpractice by the defendant. Second, the expert must be in the same field of expertise as the defendant. And Third…. and the real amazing item to me: Any expert must be from the same state as the doctor who committed malpractice, or else must be in a contiguous state to the state where the malpractice has been supposedly committed.

Why am I focusing on the Third item, out of all the things I have mentioned? For instance, under this bill, a doctor at Duke, who might even be chairman of the department, cannot testify as an expert in a case in Pennsylvania.

Why do they do this? To restrict the ability to prove malpractice. If an insurance company can restrict experts that can be hired and restrict what lawyers can be paid, then they can restrict malpractice claims. They want to make it hard to hire an expert. And, they know how hard it is to get a doctor to testify against another doctor that they know, in the same state.


That’s why I say that those signs hanging in the parking lot are a good metaphor for such legislation.  I just wanted to give you something to think about. No wonder people want to drain the swamp!

And finally; yes I admit it, I do enjoy cake which causes me to post cake pictures:


The Truth Giver

Squirrels cannot find 73% of all nuts that they hide. Apparently they have terrible memories. Do you believe me? (Here is the NY Times article on squirrels. I’m not sure how you ask squirrels these embarrassing questions.)

Dr. Mehmet Oz (Wikipedia) came to prominence because Oprah featured him on her show with health segments. He became so popular that Oprah “spun off” a Dr Oz show through her Harpo Productions.

Soon Dr. Oz began spouting the amazing health benefits of Green Coffee Extract for amazing weight loss, and Raspberry Ketone as “the number one miracle in a bottle to burn your fat”.

Soon these amazing weight loss claims were being called into question by the Federal Trade Commission, and Dr. Oz found himself testifying before a Senate hearing on weight loss scams where Senator Claire McCaskill confronted him with , “The scientific community is almost monolithic against you in terms of the efficacy of the three products you call miracles“.

The makes of Green Coffee Extract ultimately entered into a settlement with the FTC, for the false advertising of their products. They ultimately paid 3.5 million and agreed to stop making such weight loss claims.

Dr. Oz is a professor at the Department of Surgery at Columbia University.  He is listed as directing the Cardiovascular Institute and Complementary Medicine Program at New York-Presbyterian Hospital. He works in the areas of research in heart replacement surgery, minimally invasive cardiac surgery, and health care policy. When people watch his show, they believe that they are getting medical advice from a doctor.

Popular Science, Forbes and The New Yorker have all published critical well-researched articles regarding the unscientific claims that Dr. Oz had made about various health products.

The James Randi Educational Foundation has “awarded” Dr. Oz with three Pigasus awards. The award is “given” as a way to “expose parapsychological, paranormal or psychic frauds that Randi has noted over the previous year.”

The award consists of a silver flying pig and is based on the concept that claims are so doubtful regarding products that such things will only happen “when pigs fly”. Oz is the only person to have received this award on three separate occasions.

If you click on the above indicated Wikipedia page, you will see a long list of Oz criticisms regarding his health claims, but one final study is worth mentioning regarding his claims.

The British Medical Journal analyzed the effectiveness of Oz’s medical advice and were only able to find support for 46% of his recommendations. Conversely, the study showed that 39% had no supporting scientific evidence, while the remaining 15%  actually went directly against scientific evidence.

What is his response to those findings? “It’s called The Dr. Oz Show. We purposely have ‘Oz’ in the middle, and ‘Doctor’ is in the little bar for a reason. I want folks to realize that I am a doctor, but I am coming into their lives to be supportive of them. But it’s not a medical show“. Seriously?

I know I need to wrap this up, or else you will think I am being paid by the word. I just wanted to pose the question, “Do believe anything from Dr. Oz?”. I wouldn’t want him treating me, nor selling me some slick cure.

My law application for the blog is this: When I first started my practice, an old lawyer told me that in every jury trial, there is a truth-giver. The jury will look at both sides and decide to believe one of the two sides.  If you want to be successful for your clients, you need to be viewed as the Truth Giver!

Have a great Monday! It’s Our week!

And for pic o’day, here’s one to cool us down. Plus, a reminder to read the signs!!!


The Real Loser!

This blog news made me laugh because it should really be titled, “Who is the loser now?”.

From comes a story about a recently enacted law in Oklahoma. The newspaper sums it up like this,

A law recently signed by Gov. Mary Fallin will unintentionally make dramatic changes in the payment of attorney fees in civil lawsuits.

House Bill 1470 increases the age to 45 from 20 for victims of child sexual abuse to bring a civil case.

But Sen. Anthony Sykes, R-Moore, amended the original bill to make the loser pay all legal fees in civil cases, a dramatic shift from how those cases are currently handled”.

Here’s why this makes me smile. For years, Big Business has been threatening to fight for loser pays laws. Whenever someone brings a lawsuit and loses, they would also have to pay the attorney fees for the winning side. That was supposed to stop the “frivolous lawsuits” from being filed.

I have always been a supporter of Loser Pays laws. In my world, it’s the insurance companies who have frivolous defenses. And now, losers paying is a reality in Oklahoma. The state where I went to law school. A reality by legislative mistake.

If you fully read the article, you will see that Big Business is scrambling to get the laws changed again. The last thing they really wanted was to pass “Loser Pays” laws. They would rather make it a talking point instead of reality. It’s Biblical to watch David defeat Goliath. And that’s what has them scrambling in Oklahoma.

And for pic o’ day… Are these the legislators in Oklahoma?


I know that our pic o’ day shouldn’t end the blog in a mean way, so here’s Yoga Pup for a more relaxing ending:


A Name With a Face

I stumbled on an article in that tells the story of a man known as Context 958. I realize that his name sounds totally impersonal. It’s true, until you learn that his name is a reason to make it personal.

Context 958 lived in the 1200’s, which doesn’t even seem real when I type that, because it’s so long ago. Should we call him Context or Mr. 958?

Based on Scientific clues, an educated guess is that he was part of the poor, working class. Scientists tells us that he had periods of malnutrition. He broke a rib at one point, and survived a concussion. He suffered from gout and a mouthful of dental diseases. He died in a charity hospital and was ultimately buried face down in a pauper’s grave and forgotten. Until…

Sometime between 2010 and 2012, a team of researchers was excavating an area in Cambridge, England, and found his bones. It told the story of his physical condition.

The reality is that I wasn’t interested in the story. I even stopped reading, until I glanced down in the article. There, I saw these pictures:




Scientists from the University of Cambridge had put together a 3D imaging of Context 958, based on clues from his bones. They had put a face with a name.

Now I was interested in their findings. I kept looking back at the pictures. I couldn’t help myself. I imagined all the details that the Scientists described. Why? Because Context 958 was now a person from the forensic investigation.

Lobbyists and politicians learned a long time ago that persuasion must include making it personal. Every year, when our president gives the state of the union address, they place specific people in the audience to recognize them in story, and then make a point with that story.

During the NCAA Basketball tournament, each team has a mascot. It’s marketing for their schools. And in the Finals tonight, we will see the North Carolina Tar Heel mascot named Rameses. Meanwhile, Gonzaga’s mascot is Spike the Bulldog. And if you order some Little Caesar’s Pizza during the game, you might even think of the little toga-wearing character who would remind us of “Pizza! Pizza!”.

Communication specialists call it the art of personalized persuasion. People tune out when they are not connected.

In the world of jury trials, the same principle is in effect. If the case is about medical bills and medical terms… not so good. Getting involved with the reality of the injury is the means of persuasion.

One final note on that. Long ago, I was introduced to the concept of “Day in the Life” videos. On serious injury cases, have the client’s day shown to the jury. To show the difficulties clients face including just getting ready or just living day-to-day because of injury.  It is much more persuasive than just having someone describe difficulties.

“The mind is no match with the heart, in persuasion; constitutionality is no match with compassion”. Everett Dirksen.

Dirksen was a U.S. Senator who knew a great deal about persuasion. He was known as the Senator who break up deadlocked debate on some serious topic, by regularly introducing an amendment or legislation to name the Marigold the National Flower. It never passed, but it always lightened a tense atmosphere. Perhaps he would have been more successful if it had been the White Lily!

And for pic o’ day, here’s some “funnies” about love:IMG_1031


It’s My 2000th Blog!

This is blog number 2000. My very first blog was posted on January 10, 2006 titled Accept Responsibility in Lawsuits. (Here) And it wasn’t very interesting! A journey not a destination.

When I think about it, I can’t believe we are here. With 2000 postings. It has been a smorgasbord of topics.

This 2000th blog is almost like a birthday, without the gifts! (Honestly, this picture below is one we have all seen, but it still cracks me up. Plus, it wouldn’t really be one of my blogs if it didn’t include some randomness. Right?)



Hopefully it’s not like the old Pennsylvania Dutch saying “Too soon old. Too late shmart“. Instead, hopefully it means my blogging will get better!

First up, since I usually post a pic o’ day, I thought I would post my favorite pic o’ day. I realized that I had lots of favorites, but this one never fails to make me smile:



Instead of just rambling, I thought I would just post one thought that is really a reminder to me. It comes from the Book of Ruth 2:11-13. Boaz tells Ruth that because of how she has shown kindness to others, that the Lord repay your work, and a full reward be given to you. The cause and effect of being kind to others. Boaz telling Ruth that her kindness was being rewarded.

I just thought I would take this 2000th blog to blog on kindness. I am in a profession where being adversarial is rewarded. Being called a Pit Bull is a compliment. And where being feisty is expected. It’s real easy to think that being kind is setting yourself up, so other lawyers can take advantage of you.

That’s why I like this reminder of the importance of kindness. A combination of quotes that includes Mark Twain and Aesop, says it better than I can. “No act of kindness, no matter how small, is ever wasted. Kindness is the language which the deaf can hear and the blind can see. For beautiful eyes, look for the good in others. For beautiful lips, speak only words of kindness. 

And finally, for pic o’ day, the staff said that I should post a picture of me that was taken while I was typing this 2000th blog. So here it is… and on to many more blogging milestones. Still so many topics for future blogs!



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