Saturday, December 19, 2009

News you should not miss

Here are some items that recently hit the news, but only lightly, and only somewhere buried deep inside the paper (and probably not at all in your local rag), which you might have missed:

The North Face has brought suit against The South Butt, a company started by a teenager to help pay for college, for trademark infringement on the ground that the names are so similar that it amounts to piracy of North Face’s “famous” trademark. Furthermore North Face complains about the similarity of the South Butt tag line of “Never Stop Relaxing” to North Face’s “Never Stop Exploring”. South Butt’s retort: “If you are unable to discern the difference between a face and butt, we encourage you to buy North Face products.” No comment on my part required here.

The federal government has agreed to pay $3.4 billion to settle claims that it mismanaged funds held in trust for certain Native American tribes. The Interior Department manages about 56 million acres of Indian trust land scattered across the country and handles leasing rights for mining, livestock grazing, timber harvesting and drilling for gas and oil. It then distributes the revenues to American Indians. In the 2009 fiscal year it collected about $298 million for more than 384,000 individual Indian accounts. The lawsuit accuses the department of mismanaging that money. I had no idea that there were that many Indians in the USA, but if you divide the annual amount collected by the number of accounts, it looks like each Indian will get about 78 cents, and about $88.54 each out of the settlement. You have to wonder just who qualifies as an “Indian”, and even then this settlement applies only to designated tribes, not all Indians.

On a matter which is not really at all related, The University of North Dakota is fighting to keep using the “Fighting Sioux” as its mascot in the face of an NCAA directive that member schools stop using Native Americans as mascots. One of the two Sioux tribal councils in the state agreed to continued use of the name by the university and brought suit to stop the other tribal council from scuttling the deal, asserting that many of the American Indians opposed to the Fighting Sioux nickname are simply from tribes other than Sioux and are jealous of the recognition. As one member of the tribe said, “I am full blood and I grew up on the reservation. I have to tell you, I am very, very honored that they would use the name.” See there, not all law suits are totally serious, some are just for fun.

Friday, November 27, 2009

Stats show that thousands of people die or are seriously impaired each year as a result of mistakes by doctors and hospitals. Isn't it fair that the victims of these errors, or their surviving family members, should be compensated? Presumably this system of medical malpractice claims not only provides fair compensation to people who have suffered, but it also makes health care providers take more care to avoid these tragic mistakes. On the other hand opponents of this system claim that the system increases health care costs for all of us by causing docs and hospitals to go overboard by ordering excessive and unnecessary tests. I was somewhat shocked while watching a panel on ESPN last night to see Howard Dean, the Democratic party leader, say that the only reason that Democrats oppose tort reform (laws to limit recovery by accident or malpractice victims) is that they are dependent on large political donations by trial lawyers. I am not sure of what the real answer is to this question, but I do know that in Texas, where there are severe limitations on medical malpractice claims, the insurance industry has not seen fit to offer lower premiums for malpractice insurance. I have also seen conflicting claims that studies have shown that the threat of malpractice claims either do, or do not, motivate health care providers to order excessive expensive testing. Which side of this debate is correct, I am not sure, but it is important that more surveys and studies be done to find out which is right. I suspect that an honest evaluation will reveal that the cost of compensating malpractice victims is a minor burden on the overall cost of health care.

Okay, so I don't really think that considering this question is a waste of your time, but I can't be held to be wasting your time all of the time!

Monday, November 23, 2009

I hope that you saw the 60 Minutes program last night (11/21) concerning the billions of dollars that Medicare (that's our tax dollars) is spending on the last month of life for thousands, perhaps millions, of dying elderly patients. In many cases these people are kept on life support in a hospital or nursing home and are subjected to numerous tests and procedures. The result is that they may live an extra month, but with a quality of life that no one would want. When will we wake up to the fact that our health care system is outrageously expensive, is not particularly effective and continues to rise at an unsustainable rate? We simply cannot afford, nor do we need, many of the tests and procedures to which patients, especially the elderly, are routinely subjected. In our service to accident victims at Lowry & Associates we see medical and hospital bills every day, and it never ceases to alarm me when I see the astounding amounts that are being charged. I think that the 60 Minutes program said that Medicare spends an average of $55,000 during the last month of life of Medicare recipients. Of course treatment of the elderly is not the only place where excessive amounts are being spent on patient care, but getting a handle on just that one aspect of health care could result in billions of savings to provide basic health care to people who can't afford it now.

Monday, July 20, 2009

Memories of my Dad

This is a eulogy I gave at a memorial service for my Dad in Boston on Thursday, July 16, 2009

I have heard stories all of my life about the special attention that my Dad paid to patients in the hospital who were facing difficult personal issues. He went out of his way to help all sorts of people – from a gypsy king to a famous folk singer to a teenager with a broken family. We sometimes kidded him that he had a special soft spot for damsels in distress, but his capacity for caring was legendary.

These are stories I only heard about from various sources however, not things that I personally observed.

Today I would like to share with you some of my own recollections of events which may give you an insight into the warmth and generosity that defined my Dad’s character.

Dad was always an ardent photographer. I remember one time in early 1942 when I was seven and my brother Dave was five, just before Dad left to fight the war in the Pacific. Davy and I were horsing around on the lawn of our aunt’s house in Pasadena, and Dad was snapping photos. I was particularly proud to show how I could stand on my head, and this feat was greatly admired by Dad whose photos are the reason I remember it.

Throughout my junior high and high school days Dad was always there taking a keen interest and lending support and encouragement. He was at my football games and my scout meetings, my choral concerts and high school plays. He and my Mom were chaperones at dances and for our senior class outing at the beach.

Dad was not a very strict disciplinarian, but he would never hesitate to set us straight when the situation required it. I remember when we moved into a new house in Westwood when I was about 13 years old. The front yard was just dirt with lots of rocks which had to be removed in preparation for putting in a new lawn. This seemed to me to be an ideal opportunity to practice my pitching, so I was picking up each rock and, after a full windup, tossing it onto the vacant lot next door. Dad saw this and pointed out to me that this would not do, as it would take weeks at the rate I was going to clear the rocks from the yard.

Some of my most cherished memories of Dad are from a week we spent together exploring the islands and harbors of Casco Bay in Maine on his boat, Sequester. I doubt that there is any body of water in the world that has more interesting places, and Dad and I had a wonderful time exploring many of them. I will never forget those evenings anchored in the calm of an inlet or river estuary with a steak on the barbeque at the stern and a martini in hand. It was just the two of us, and I could not think of any place I would rather be or anyone I would rather be with.

He was always ready to lend a hand with whatever projects we had. When I ran for Congress in 1976 shortly after his retirement from the hospital he came to Maine and helped me with my campaign (which fortunately for me and for the country, was not successful).

The gifts he gave at Christmas were never perfunctory, but always given after careful thought. He discovered that I had an interest in recorders, so for one Christmas he gave me a beautiful tenor recorder. Although I have fallen far short of mastering the instrument, it has given me many hours of great pleasure—and still does to this day.

But for all of the wonderful times and for all of the ways that he helped me throughout my life, I am most grateful to him for the values he instilled in me by his example. There was never a hint of arrogance in anything he did, and he treated all people, of whatever station in life, with dignity and respect. He never refused to help anyone when that help was within his reach. He was a shining example in my life, and although I have often fallen short, I will be forever thankful for the life compass that was the greatest gift from my Dad.

Robert D. Lowry passed away on June 22, 2009, at age 95

Thursday, July 16, 2009

Can someone tell me how the big auto makers, Chrysler and GM, are going to save money by dumping hundreds of associated dealers?

These dealer are all independent businessmen and women who only make money when they sell or service cars. So presumably the dealers selling cars are making money not only for themselves, but also for the manufacturers of the cars. And if a dealer is not selling any cars, or buying any parts to service cars, then that dealer will go out of business without any help from the manufacturer. How does the auto maker lose either way? I would say the more dealers the merrier, because the more people who are out there trying to sell your product, the better the chance that more will be sold.

The fly in the ointment, I suppose, is that these dealers carry a large inventory of cars and car parts, but they don’t pay for them until they sell them, so that they are undoubtedly being heavily financed by Chrysler or GM (actually the finance companies owned by Chrysler and GM, Chrysler Financial and GMAC). I don’t think, though, that just dumping profitable dealerships is going to save either Chrysler Financial or GMAC from any significant losses. Doesn’t this just make it more likely that the dealer will default on the borrowed money? Wouldn’t it make more sense to simply tighten up their credit standards? If a dealer ship is shaky, don’t extend it so much credit. This may result in that dealership going out of business, but doesn’t this make more sense than just dumping a bunch of dealers, many of whom, as I understand it, are profitable?
There you go again, wasting another few minutes perusing my drivel. See you next time.

Friday, July 3, 2009

Independence Day and the Declaration

We have always been told that Thomas Jefferson was the author of the Declaration of Independence, but it turns out that we may be giving Jefferson a bit too much credit. According to the first draft of the document was done in the handwriting of John Adams. The committee appointed by the Continental Congress to prepare the declaration was made up of Jefferson, Adams and Benjamin Franklin. After the first draft had been written by Adams the committee turned it over to Jefferson to do the editing. On the website you can see Adams' draft and compare it to the next draft which was done by Jefferson. There was quite a bit of editing done, but most of the language and certainly the main points covered (mostly complaints about the conduct of King George III) were contained in the first draft by Adams. Even after the Jefferson version was adopted by the committee and presented to the Congress, a few more changes were made in the language of this historic document. So when we are told that Jefferson is the author of the Declaration of Independence, this is true---sort of.

Another interesting tidbit about Independence Day is that it was not until 1941 that the day became a paid holiday for federal employees. Happy 4th, everyone!

Monday, June 29, 2009

Murder She Wrote

I attended the Maine Bar Association summer meeting in Bar Harbor this weekend, and while there I attended a lecture by the noted trial lawyer, Dan Lilley. The subject was the trial of a case in defense of a person accused of murder. Dan had a number of suggestions which would be helpful to any attorney who tries cases to a jury. One of these is that a lawyer should stop reading books and instead spend his or her time watching popular TV shows, especially the crime shows such as CSI. This is what the members of the jury watch, and the lawyer needs to do this is order to have a feel for where the jury is coming from or how they will be approaching a legal case in their thinking. Something to think about, but if you are not a trial lawyer, you have just wasted another few minutes reading my scribblings. Don

Wednesday, June 17, 2009

I am pretty new to blogging, so I am not sure that just venting on a personal gripe is really the way to go, but this thing is just sticking in my craw, so maybe writing it down will help.

I pay most of my bills online by logging into my bank’s website, where I can view the balance, activity, etc. in my checking account, and I can direct the bank to pay whichever bills I indicate. In some cases, when the payment is going to a large established company, I believe that the funds are transferred electronically, but in many cases the bank simply creates a check and mails it to the creditor.

In early April I directed the bank to pay a premium on my, and my wife’s, long term care insurance in the amount of approximately $2,500. In late May I received a notice from the insurance company that my payment was overdue. I looked at the record of my account online and saw that the check had been paid, or at least the amount of the payment had been deducted from my account. I called my agent who then checked with the insurance company and found that it had no record of receiving the payment and would need a copy of the front and back of the check to show that the payment was made. When I asked the bank for copies of the check, they responded that the check had never cleared.

Now, it is not the fact that the insurance company lost the check which is irking me. What makes me ticked off is that the bank deducted this amount from my account without ever having made any payment, and furthermore, now insists that in order to get that money put back in my account, I will have to submit a ‘stop order’ request and pay $25. Go figure.

I have written a strongly worded letter to the bank and have threatened to take this up with our state banking officials if they won’t put the money back into my account without charging the $25 fee. It is unlikely that I’ll actually do this, but just making the threat and blowing off some steam seemed worth it.

Thursday, June 4, 2009

The 1908 Woman: An Object of Public Interest

Here is an interesting item that I came across recently in a publication by the Supreme Court Historical Society.

In 1908 the Supreme Court decided a case that upheld an Oregon law which prohibited an employer from requiring a woman to work more than 10 hours in a day. The fact that the court would allow the government to interfere with a private employer and an employee was pretty radical for that time, but even more amazing was the reasoning which the court adopted.
The court found that, “women’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity, continued standing for a long time on her feet at work, repeating this from day to day, lends itself to injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.”

What a difference a century can make! Not withstanding that the ruling was in favor of women, the paternalistic approach which the court took at that time is just the opposite of the equality sought by women of today.

Monday, June 1, 2009

At the Height of Their Generation

Here we go a-blogging again. This time I’d like to mention a phenomenon that I have been noticing more and more lately. It seems to strike me particularly when I am traveling by air, but that is probably just because I don’t have occasion to meet up with many young men on a day-to-day basis. The observation that I am referring to is this: It appears to me that 90% of the men I see in airports under the age of 30 are at least six feet four inches tall. When did this happen that everybody got so big? And how? I was very near to six feet tall when I was a bit younger (I am sure that I have lost an inch or so in my “old age”), but I find myself looking up at almost every young man and teenaged boy that I meet. It used to be that anyone that big would be ticketed for a career in professional sports.

Fortunately for me no points are awarded in court for tallness, but for anyone interested in having Lowry & Associates handle a personal injury claim, you don’t have to worry, because my associate, James, is a young man who is fully up to the standards of his generation.

So there is something to think about, but mainly you have wasted another perfectly good few minutes reading my ramblings.

Thursday, May 28, 2009

Swimming For Longevity

We all know that regular exercise is good for a healthy heart, but did you know that swimming is even better for you than walking or jogging?

Not much research has been done on the health benefits of swimming, but two recently published studies show that this form of exercise may be the best.

One study involving nearly 46,000 people measured blood pressure, cholesterol levels and energy output. Not surprisingly swimmers and runners had the best numbers for cardiovascular health.

The other study measured death rates among 40,547 men, ages 20 to 90 over a 13 year period. Only 2% of swimmers died, compared with 8% of runners, 9% of walkers and 11% of non-exercisers. Pretty impressive, wouldn’t you say?

It’s something to think about in case you are interested in a long, healthy life.

Tuesday, May 26, 2009

The Mighty Mandatory Arbitration Clause

Many commercial and consumer contracts these days include a provision waiving the right to a jury trial and many even waive the right to bring a lawsuit and require that any disagreement be decided by arbitration.

When I bought my condo five years ago one of the provisions in the contract was that I could never ask for a jury if I got into a dispute with the developer. It wasn’t that the developer was a mean guy; in fact he is very nice and I have not had any reason to have a disagreement with him. It’s just that he hired a business-oriented law firm to draw up his papers, and the lawyers do what lawyers always do: they think up every conceivable way to give maximum protection to their clients. Juries can be unpredictable, and judges’ decisions are considered more reliable for business.

Arbitration is a process by which people (or companies) resolve disputes by referral to a neutral person, often a retired judge or a lawyer or someone with particular expertise in the field, who takes the evidence presented by both sides and decides what the resolution will be. This procedure is much quicker and much less expensive than going through a trial in the courts.

The trouble is that the arbitrator must be agreed upon by both sides. This is bad news for consumers, because any arbitrator who decides in favor of a consumer and against a company will be unlikely to be hired to decide any cases involving that company in the future. The consumer will generally not be in a position to find out about an arbitrator’s previous rulings, so the company has the advantage, and arbitrators generally tend to favor companies.

An even worse evil of these mandatory arbitration clauses, though, is that consumers are barred from being a part of a class action. This means that the consumer with a legitimate gripe against a big company will have no way to get any relief unless the value of the claim is enough to warrant hiring a lawyer and pressing the claim through an arbitration process. In other words, if a person gets cheated out of ten dollars (or $50 or $100 for that matter), it would make no sense to press this complaint, because the cost of pursuing it would be greater than the amount of the claim. It is only through class actions that companies can be held responsible for wrongs which amount to only a small amount for the individual claimant, but may amount to millions of dollars of illegal profit if there are many people who are affected.

Courts have generally upheld the validity of mandatory arbitration clauses, but some have found them unenforceable, and there is a move to try to enact legislation to make them invalid.

This is getting a little bit on the techy side of the law, but I thought you might like to know about this. It’s something to look out for, although you usually don’t have much choice when asked to sign a document with a bank or a big company.

Wednesday, May 6, 2009


Blogging? We’ll give it a try. Yesterday I read about a case which was decided in the First Circuit Court of Appeals in Boston in which the court decided that a woman has a case for a discrimination claim. I thought that this was really a big stretch to see anything that the employer had done wrong, but it seems that the federal courts lately have been just bending over backward to find some reason, any reason or just imaginary reasons, for finding that an employer is liable to pay money damages to any employee or former employee who brings a claim after being fired or having been passed over for a promotion.

Here are the facts, so see if you don’t agree that the court went a bit overboard on this one: two women who held jobs at the same level in a company both applied for a promotion to fill a vacant position. The person who later claimed discrimination had been with the company longer and had higher performance ratings than the other woman. Each had children at home, the claimant four including triplets who were six years old, and the other applicant two children aged 9 and 14. The two applicants were interviewed by three supervisors, all women, who decided that the other woman interviewed better and gave her the job. Later, the supervisor who had made the final decision and did not even know at the time of the decision that the claimant had triplets, told the claimant that, “It was nothing that you did or did or didn’t do. It was just that you’re going to school, you have the kids and you just have a lot on your plate right now.” Based on these facts the court found that the claimant had a valid case of discrimination based on sex-based stereotypes about the child care responsibilities of working mothers.

Am I crazy or what? It is getting just about impossible for an employer (and these rules apply to small businesses as well as large corporations) to let anyone go or to deny a promotion without facing the prospect of being sued.

So there you go. Another few minutes wasted. Stay loose, and I will get back to you as soon as I think of another frivolous topic for you to waste your time on.