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A comment on Maclaren Stroller Recall: Free Repair Kit Costs More Than Its Worth

Steven Schafer — Mon, 16 Nov 2009 16:52:02 GMT

Reply to Mr. Rainey,

I certainly agree that parents must supervise their children and take precautions for their safety. Nothing that I have written here minimizes parental responsibility. I doubt, however, that the parents of the children who have been injured on these strollers appreciated the hazard posed by the hinge mechanisms. Maclaren, on the other hand, appears to have had mounting evidence that children were being hurt and therefore had a responsibility to inform their customers who relied on the Maclaren brand. To the extent that proper testing of the strollers would have revealed this hazard before the strollers were sold, the hazard should have been eliminated or minimized.

A comment on Maclaren Stroller Recall: Free Repair Kit Costs More Than Its Worth

Kevin Rainey — Mon, 16 Nov 2009 07:41:37 GMT

Give me a break. You need to promote responsibility by parents, not promote lawsuits that raise our insurance and products.

A comment on Maclaren's "Voluntary" Recall of Strollers May Not Be So Voluntary

Mike Bryant — Sun, 15 Nov 2009 15:10:24 GMT

You have some very good information here. Your explanation of the information they don't gather or ask about is telling. It is important that companies step up and take dangerous products off the market, because it's the right thing to do.

A comment on Bedrails can kill patients

KJ,PT — Wed, 22 Apr 2009 19:31:58 GMT

I am a physical therapist in a small skilled nursing facility. I agree with the above article that bedside rails are dangerous. We are involved with Medicare's 9th Scope of Work and one of the focuses is reducing restraints. We had a restraint meeting yesterday and have 6 individuals in our facility (out of 36) that have half bedside rails. Five of them use them for repositioning themselves in bed. The 6th resident's family just threatened to sue us if we didn't put a half rail on her bed. She fell out of her bed a month ago because she got her legs tangled in her bedding. I feel the bed rail just increases the risk for a worse injury if this happens again. Our restraint committee decided yesterday that we are going to get rid of all of our half rails. We plan to replace some of them with 1/4 rails which are safer and still allow the resident to use it for repositioning in bed or getting in and out of bed. One of our CNA's told us that she plans to encourage the above resident's family and another one's family to sue us if we remove the half rails. I would like to see what grounds they have for this. CMS and the FDA are strictly enforcing nursing homes to get rid of half rails. They claim their regulations rule over a family's choice. I feel their mother would be fine with a 1/4 rail plus we would like to decrease the clutter in her room but they are also against that. Anyway, that's my two cents. Not all nursing homes are supporting the use of half rails and we sure don't. I actually present restraint inservices for several nursing homes and usually the staff gets angry with the new regs and want to throw rotten tomatoes at me. I get a kick out it actually. KJ,PT

A comment on Bedrails can kill patients

Mike Bryant — Sat, 28 Feb 2009 15:51:30 GMT

I am dealing with one of these cases right now, they are human tragedies. Thanks for the very important information.

A comment on Elevator Accidents

Chris — Fri, 10 Aug 2007 06:57:25 GMT

I fell four stories on a elevator and this story helped me greatly, I am sending a copy of it to my att.

A comment on Protecting Consumers from Binding Arbitration Clauses

CS — Fri, 27 Jul 2007 16:14:48 GMT

I attribute getting OUT of arbitration with a home warranty company for success of settling the construction defect case for enough to cover most of our damages. Had I been forced to arbitrate with the warranty company, I'd have had to go through their private procedure, with an arbitration company run by a disbarred lawyer and with a history of making decisions in favor of builders and warranty co's. My damages were over $100,000, due to a builder's deliberate shortcuts and/or incompetence. Staying out of arbitration kept me out of bankruptcy or foreclosure.

I doubt many home buyers could've gotten out of it. Fighting the case took 5 years, a LOT of legwork and research and hard work, and I found no lawyer who knew any way out. The laws may be there for a handful of people in very specific circumstances to find a way out, but no one but the homeowner will usually have any incentive to fight it and enforce it. There is not enough money in these cases for law firms to take an interest as they are not class actions and not worth the amounts of bigger cases. Anyone who's not online has even less chance of fighting it as so much of the info I used, was found online.

We've all got family members who are older and not online. I imagine my 80 yr old mom trying to fight this and I know she could not. Nor could all the other seniors out there who are now buying newly constructed senior-living homes, or going into assisted living, nursing homes, etc, WITH ARBITRATION CLAUSES in the contracts.

Arbitration has no place in business-to-consumer contracts, period!

A comment on Protecting Consumers from Binding Arbitration Clauses

Jordan Fogal — Thu, 26 Jul 2007 23:03:13 GMT

Christian Science monitor investigated the 10 top arbitration companies and found that only in 1.6% of the cases did they rule in favor of the consumer....

Long but the truth:

#1 Some businesses offer a hardship to consumers to assist them in paying the fees associated with arbitration. Does his not provide a solution to those consumers who argue they cannot pay the fees?

In my experience with AAA, the American Arbitration Association, there is a spin on just about everything to do with the process. Hardship is a prime example. When we were filed on the first time we were supporting two houses, one we could not live in and an apartment. We were paying for testing of all kinds on our house, moving, storage expenses and legal fees. We could not afford arbitration. During the process our credit was ruined and we could not borrow the money since we had been posted for foreclosure. Some of our credit cards automatically raised their interest rates because of that one adverse credit reporting. Discover Card was the first. We were told we could pay them off or assume a ridiculous interest rate. We had never been late with a payment or a house payment until all of this happened.

We ask for hardship, as we too had read their slick brochures. We had to fill out a raft of papers and give this omnipotent agency every shed of information about our financial crisis. It was demeaning.

After I filed for hardship, they would not tell me if it had been granted. Every time I asked I received blank credit card authorizations wanting my credit card information so they could charge their costs to me. After some time they finally admitted I had qualified. They said I could pay $750.00 up front, before arbitration began and the exact same amount, win or lose that I would have paid up front, as a balloon note at the end of arbitration just as if we had never had this exercise for hardship.

When we saw they could provide an arbitrator pro bono we applied for one. The builder was not participating in the process yet AAA had us jumping though hoops. We were afraid not too comply with everything AAA told us to do since this was supposed to take the place of court. We thought it was like being in contempt if we did not do everything they said. We thought they could put us in jail or rule against us because of something we did wrong. They sent out a list of arbitrators one of them, Marsha Higbee, had three on going cases with our builder. One case had been taken back to court from AAA for a ruling because the builder's lawyer was unhappy with her ruling during the process. It had not been ruled on so we chose her. All this was in her disclosure. We thought at least she would know what they were really like. We sent in our list on the appointed day. There was always a deadline for everything. We met every deadline. We chose Ms. Higbee. She was assigned and said she would give us one free day of arbitration, this was after our builders' lawyers said to AAA and to us that they could dispose of us in one day. A conference call was scheduled. Then a couple of days later, the builder's lawyers said, they did not want Ms. Higbee. They had changed their mind, now it might take three to five days and they wanted not one, but 3 arbitrators. So AAA thanked Ms.Higbee for her offer and released her.

We were sent out notices again. This time the fees were so high per hour that I told them we could not pay $475 an hour for 6 to 8 hour for 3 to 5 days and for pre and post study for what ever length of time the arbitrator chose. I told them I could not in good conscious hire someone that I could not pay because it was dishonest. AAA knew we had no money so for the first time they denied the builders' lawyer's request for 3 arbitrators. AAA is a "non profit" agency. They are careful if they think they are not going to get their money. So they said only one arbitrator. They knew they could probably squeeze that much more out of what was left of us.

So the builders' lawyer, with our AAA solutions manager and myself on the phone told me I would chose or he would go to court and have an arbitrator appointed by the court, outside of AAA. He said that he had done it many times before and he could assure me it would not be free. I chose an arbitrator. Then I wrote the arbitrator and told him I could not pay him. I no longer owned the house by then. I did not pay the arbitrators fees but then neither did the builder. I was puzzled; the builders' lawyers told me if I did not pay they could go to arbitration without us and get a ruling in abstensia. I thought that was what was going to happen.

In the AAA rules, the more affluent party can pay both of the parties fees to force the process. The builders lawyer said he was not paying my fees. So the arbitrator dismissed the case for non payment of fees by both parties.

We had gone though the process and been dismissed. So we mistakenly thought we had earned our right to a trial by jury finally and filed charges of fraud against the builder. After 8 hearings we were ordered back into arbitration. There are so many ins and outs in arbitration agencies. They do not give a direct answer they intimidate and harass and frighten you to death. This time they made us pay. And pay we did. We paid $9,300.00 up front and then $1,687.00 for post study.

What no one seems to understand about this entire process is that you pay this out stretched handed agency, this third party, and then pay to prepare to go to arbitration. You incur all the costs of a trial. Plus, AAA got their money.

#2 From a consumers perspective and someone who has lived though the process how would you change arbitration to make it fair to all parties to a dispute?
After what we went though and what I have been appalled to know after meeting and talking to not only the victims of my builder, but hundreds of others, I have seen nothing but flaws.

How can anything be upheld by the courts, if the rules of laws do not apply? How can we be taken behind closed doors and allowed to be humiliated and lied about and the evidence be ignored and this be called justice? How can it be fair when the builders already are in a contractual agreement with the arbitration company? How can it be fair when the arbitrators are dependent on the builders to chose them again so they will have a constant stream of income? How can it be fair if there is no appeal? How can it be fair when people are frightened under gag orders and cannot even talk about what happened to them? I have been to people's houses who had repeated the mantra "we reached an amicable settlement with our builder." If that were true why is the house still falling apart, why is the owner sick and moving out of the state, why does his dog have no hair and why is his wife crying. This is amicable?

It is not more fair or cheaper and it is not in the consumers' best interest. We have all been sold a bill of goods. Many people just walk away from arbitration and their homes and move in with family members. Many are forced to live in deplorable conditions. The red tape and complicated procedure is something I have studied for 4 years and been a victim in arbitration twice. I have talked to people who actually came out of arbitration owing their builder. It is so unfair we feared that prospect. The arbitrator ruled that we should pay our builder's lawyers for breach of contract for trying to sue him in court for fraud. How can the perpetrator file on the victim? This is so backwards, it is upside down. A consumer has the right for small claims to go to small claims court. We do not need to pay an arbitrator. We have paid for a judge with our taxes. There is nothing redeeming about a middle man's cut as we seek truth and justice.

#3 In your testimony during June 12, 2007 hearing, you indicated that in Texas you can sue someone selling you an existing house. But you cannot sue someone selling you a new house, Please explain how you have come to understand this, including any research of the laws and regulations in Texas, and whether you have determined that persons in other states are similarly prohibited from suing new home builders?

In new home contracts the builders include mandatory arbitration clauses and will generally refuse to sell a home to a consumer who objects to such arbitration clauses. Moreover, builders typically select American Arbitration Association which requires very high financial burdens just to participate. In either case, the consumer will never have a true measure of justice.

With respect to homes purchased from subsequent owners, not builders- using standard TREC forms, an arbitration clause is completely optional.

In fact you can actually sue a builder in Texas, but the laws purchased by the builders from our Legislature make it so difficult and expensive that it is out of reach of all but the wealthy who have a standing relation with an attorney from the start of the transaction due to short time deadlines and intricate traps that a layman could not be expected to negotiate.

For comparison, let's first consider what a buyer can do if there are severe problems with a house he buys from an individual. Most individual home sales involve at least one licensed real estate broker/sales person and often two. The substantial majority of licensed real estate brokers/sales people are knowledgeable, well-trained and want to do a good job for their client, be it the seller or the buyer. Even if a person sells their home without a broker/sales person, the seller must provide the buyer with a rather detailed Property Condition Disclosure promulgated by the Texas Real Estate Commission. It requires disclosure of a wide range of details with attention to past problems that have been remedied, current problems that need attention a number of specific representations. You can find the form at More ...

Most lawsuits against sellers involve allegations of misrepresentations in the Disclosure or failure to disclose material facts. The suit can be brought in the Justice of the Peace Court if for not more than $5,000; the County Civil Court at Law if for not more than $100,000; or in the District Court where there is no dollar limit on claims.

The cost is no more than any other lawsuit and a JP claim can be handled without a lawyer with reasonable success--providing that the other party doesn't have a lawyer.

To file a suit on a builder:

1. Make a warranty claim to your builder within the applicable warranty period (1 year for workmanship/materials is what most claims fall under. More serious claims have a two year warranty and the foundation has a ten year warranty). I will use a one year warranty claim in explaining this below.

2. If they don't respond/fix, send them a certified letter demanding repair in 30 days.

3. If they don't respond/fix, make a claim with TRCC (Texas Residential Construction Commission) within 30 days after the conclusion of your warranty period. The cost to file the complaint is $250. (As you can see, logistically you have to start this process WELL before the end of your 1 year warranty period. If your problem doesn't show up until close to the end of your warranty period you have a problem. The TRCC complaint form must be filled out extremely carefully. If the problem is not described with adequate precision or you can lose that item since you cannot amend your complaint.

4. TRCC "claims" that you'll have your inspector and inspection completed within about 30 days. In reality it takes months. Remember, the inspector you get could be a builder or have no real inspection qualifications, and you have to go through a lengthy process to object and get a new inspector. However, I have met at least one TRCC inspector who was first class--but he is the only really good one I have seen.

5. If the inspector says in his report that there is a problem with any item (the report is done item by item) there is a problem then the builder can---- 1) offer to repair or 2) give you $ to repair. The builder gets to choose whether to repair or pay, not the homeowner. The builder has 15 days to make this determination after he receives the inspector's report and you have 25 days to accept whichever alternative the builder chooses. (This is assuming no one appeals the inspectors report). If the owner rejects a reasonable offer (reasonableness is determined later), then the owner's remedies are significantly curtailed. Should the case finally make it to trial (or arbitration), the inspector's report has a presumption of correctness with the burden on the owner to rebut/disprove the inspector's findings. (This is called a rebuttable presumption.)

6. Builder has 45 days to complete repairs. (Remember the same idiot who screwed it up the first time is coming in to fix his own mistakes. This is like having the doctor who left a pair of forceps inside of you during surgery have the opportunity to do the removal and repair.) The builder almost always chooses to repair it himself rather than offer a dollar sum to the owner so the owner can go hire another builder of his choice.
7. If the builder doesn't fix the problem (to the satisfaction of the original inspector) or doesn't offer to repair at all (or makes an unreasonable offer of repair) or give you money, only then you can sue.

8. If you DON'T do steps 1-6 then you are FOREVER BARRED from suing. If you file suit, your claim is dismissed with prejudice and there is a good chance the builder will seek sanctions against the owner and his attorney for filing a suit in bad faith. (if the statute of limitations is an issue then you can file suit and make your TRCC demand at the same time. The suit will be abated until the TRCC process is completed). Also remember that any photos. documents, expert reports, inspection reports and the like not handed over by the owner during the TRCC inspection may not be used at trial. The builder is not required to turn over his evidence.

8. BUT HERE IS THE NEXT CATCH 22. If the Purchase Contract has a mandatory arbitration clause in it, and they almost always do, you still don't get to sue. You have to arbitrate or just go away and drop your claim. IS THE OWNER TIRED AND BROKE YET? NO? THEN COMES--

9. File your arbitration demand with the American Arbitration Association (AAA) and pay their fee, which usually starts at $1200+ or so. MOST builders include a provision that the Federal Arbitration Act applies so as to preempt any state arbitration laws that might be kinder to the owner. There are other arbitration groups, but the AAA is almost always the one the builder names in his contract. Remember, most builders are dues paying members of the AAA, but the AAA doesn't consider this a conflict of interest.

10. Go through arbitration. That is a separate nightmare that routinely costs more than litigation. And arbitration is routinely a secret procedure and the arbitrator is free not to follow the law, as a judge would have to do, but may substitute his judgment as to "what is right."
11. If you don't like the arbitrator's decision there is no right of appeal like there is in court.

12. You may have a shot at vacating the arbitrator's decision (called an "arbitrator's award") if you can prove that your arbitrator failed to disclose information regarding bias (e.g.--the arbitrator has represented the builder; is his brother in law; or perhaps is the builder's golf partner). But, you have to file you Motion to Vacate within 90 days of the award. If you don't discover that the arbitrator didn't disclose what he should have until after the 90 days, there is NOTHING you can do. If your arbitrator failed to follow the law there is NOTHING you can do.

13. If your arbitrator acted "fraudulently", you can move to vacate the award. But you must do so within 90 days of discovery of the fraud. However, the cases reveal that NOTHING is fraud (not even ex parte communications--the other party talking to the arbitrator about the case without your presence or knowledge). Arbitrators are immune from suit and on a recent case from the 6th Court of Appeals in Texas, arbitrators have been given greater immunity that that of a judge. Remember, a judge can be appealed, grieved against to a state's judicial ethics commission or, if elected, voted out of office. The AAA is also immune from suit and has greater immunity than that of a judge, even though they perform no judicial function such as exercising discretion or interpreting the law. The AAA's only job is administrative, yet they are immune from suit for such acts. Even an arbitrator's administrative acts are immune. However, a judge is not immune from suit for administrative acts that are not considered judicial in nature.

So, can you sue a builder? Only maybe and it is going to be expensive. But if you do get the chance, you will already have spent months and countless amounts of money. And then you start with the same costs you would have if you had been allowed to sue in the first place.

The laws in other states are often just as oppressive, although California has enacted a new law that makes arbitration much closer to fair. And a boondoggle like the TRCC appears to be something that is "only in Texas".

In Texas an existing homeowner is required to fill out a "Seller's Disclosure" promulgated by the state which inquires about a number of aspects of the home, its current condition and any defects. You may sue on the disclosure or get out of the transaction if it contains false statements or material omissions. By contrast when suing the original builder or anyone repairing or performing work on your home you are subject to the Residential Construction Liability Act which preempts the Texas consumer protection law (Deceptive Trade Practices Act) and any common law claims. The act purports to apply only to "defects" in construction but as the builder can rarely be shown to have absolute knowledge of the problem, fraud, misrepresentation and breach of warranty are often subsumed under the heading "defect." The Legislature recently amended this statute so that it requires, as a prerequisite to litigation that a party must go through the newly formed residential construction commission (a state agency made up entirely of builders) before bringing any claim in state court or arbitration. In this process the state agency appoints a "third party inspector" who issues a finding about the alleged defect. If the finding is adverse to the builder, the builder can repair the defect and the existence of the defect remains confidential with the agency. If the builder does not make the appropriate repairs the agency can then decide if the inspectors finding are correct and issue a ruling with accompanying findings of fact and conclusions of law. Whatever the ruling either side may appeal the judgment of the agency to a state Court (" or arbitrator if so agreed in the original contract") which must generally defer to the agency and the inspector on factual matters and which has the power to reverse the application of law to facts only if no legal theory supports the finding. Technically therefore a home purchaser does have resort to an arbitrator or court for the final appeal of any finding of the state agency but must overcome the ruling and factual findings of the board as found by the "third party inspector". As a practical matter therefore there are at least two levels of litigation through which a homeowner is required to proceed with limited opportunity to recover damages even in the face of facts which would otherwise support the award of additional damages for breach of warranty, deceptive trade practices or fraud.
Also, the National Association of Homebuilders, as set forth in their own mission statement, wants arbitration in all clauses in every state and the "right to cure" or "right to repair" in all states and there are 31 so far. The NAHB Research Center is a subsidiary of the National Association of Home Builders (NAHB). In their report titled: "Making the Quality Connection: Improving the Building Industry Insurance Situation Through Quality Assurance Programs" the Research Center lists one of their objectives as: To reform limits of liability, to limit the frequency of litigation, and reduce excessive punitive damage judgments while still providing consumer protection. Action steps recommended:

o Establish laws providing for the right to repair, or the right to cure construction defect claims in each state.

o Include binding arbitration clauses in all builder / trade contractor contracts.

o Provide written warranty that waives implied warranty laws (where allowed) in lieu of building industry adherence to strong performance standards."

This assures one more hoop for homeowners to jump though. It is a farce in Texas. You have to pay $360 to $650 and they say they give it back so I guess you could just say the homeowner has to lend them the money. My builder was not allowed by state law to do anything to us like court or arbitration it was against the law. They did it anyway by circumventing state law and our Texas residential Construction did not do anything about it. The builder said we did not qualify so even though the state said I did, the builder proceeded with arbitration not only at the American Arbitration Association but at the Better Business Bureau too all these things they did at once to confuse and frustrate us into silence. They were expelled from the Better Business Bureau for unethical practices and shadow companies.

I am not a lawyer nor do I give legal advice but I have done nothing but this for over 4 years. Since my name pops up often on the Internet and I have been written about in national magazines, I get calls from all across this nation from people who have suffered or are suffering unbelievable harm because of bad builders and arbitration clauses. That is how I know they exist.

I have personally had conversations with: Texas, Florida, Tennessee, Kentucky, Pennsylvania, Georgia, Alabama, Nevada, New Jersey, these are just the latest. When people first started calling me I did not keep a record. I was just someone they could call that understood what they were talking about. I never gave advice other than to be very careful. I also told them if they could afford to pay to have the repairs done without abandoning their homes they needed to look at the road blocks ahead: its unbelievable cost, in money, time, energy and stress on their families. Then they would have a frightening choice to make. I keep in touch with many of them just because I know what they are feeling and I am so sorry I could not help them or send them somewhere that someone would or could. I always tell them to write their Representatives. Most do not feel they would matter. They are so upset. They think they are just one person and since they are ordinary people without war chests of money no one will listen. And we have seen money does talk and watched who listened.

No one seemed to hear us until now. There are so many more of us than you can imagine. My prayer is that soon someone will admit the housing bust was bought on by the greed of the boom and check on these foreclosures and how many were actually caused by arbitration and defective homes. We need a big change and I know it is going to be very difficult to meet the opposition of big business. Every day that passes more peoples homes are taken and their lives are destroyed. Most will never recover from what is done to them. But even if they do something has been taken away: their belief in this county, our laws and that we are a democratic society. We waver in our belief that tyranny has not over powered, we the people.

My father was on Pearl Harbor when it was bombed and wounded at Guadalcanal. He was one of the most patriot men I have ever known. My earliest recollections are singing "from the halls of Montezuma to the shores of Tripoli..." as we rode in the car. I was proud of his service to his country. Now we are at war in this county and the working class is losing. Give us our right to a trial by a jury. Like my father so many have given so much so we could live in a county founded on the principles of democracy. Arbitration is not a democratic process. It is promoted by big business out of pure unadulterated greed and it should be outlawed.

When I came to Washington to speak before the congressional committee, I was awe struck. I crossed the Potomac. I drove by the Lincoln memorial. I was there at the seat of our government. Maybe I am just a naive woman from Taylorville Alabama, but I believe in this county and most of all I believe in the constitution. And I believe...we the people were granted the right to a trial by jury.

Jordan Fogal

A comment on Fake Studies for Medical Malpractice Defense

Kenneth N. Margolin — Tue, 10 Apr 2007 10:57:30 GMT

Dr. Patton: Your thoughtful comment highlights a difficult reality of medical malpractice litigation - the human body is complicated, and determining cause and effect is not always straightforward. The justice system accommodates the reality of medicine's complexity by allowing an expert to testify on causation "to a reasonable degree of medical certainty" rather than "absolute certainty" or the criminal standard of "beyond a reasonable doubt." The compromise is imperfect, but preferable, in my opinion, to allowing no redress to victims of medical negligence. As for CP and Brachial Plexus injuries, no responsible plaintiff's attorney would claim that they can occur only due to negligence.

A comment on Fake Studies for Medical Malpractice Defense

Robert Patton, Jr MD, JD — Tue, 10 Apr 2007 09:54:35 GMT

While your comments may generally be true, I know of no "respected" medical journal that publishes purposefully the type of article you describe. As far as bed-sores, remember that Christoper Reeve died of one and he had access to all the care he needed.

Unfortunately, your examples of CP and shoulder dystocia don't wash. The majority of cases of CP have nothing to do with birth injury, which is now well described. Interesting that while the incidence of C-Sections has risen dramatically, the incidence of CP has remained the same.

Moreover, there are well documented cases of Brachial Plexus injuries occurring even when there is NO intervention from a doctor/mid-wife during delivery.

In both cases, there is more than meets the eye. The plaintiff's position that CP and Brachial Plexus injuries can only occur due to negligence is simply not true.

Robert Patton, Jr MD JD