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Uber Self-Driving Car Kills Pedestrian

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The first case of a pedestrian killed by a self-driving car occurred in Tempe, Arizona. This technology is still in the experimental phase, however Uber self-driving cars are on the roads in Pittsburgh, San Francisco, and Toronto – as well as Tempe.

Are self-driving cars safer?

Increased safety was the initial premise for the existence of unmanned self-driving cars. One of the primary causes of automobile accidents is distracted driving. In a robotic car, that should not be a problem, but obviously there are issues to be addressed. Building systems to automatically react appropriately in unexpected situations is a difficult task.

What happened in Tempe?

In this case, the car did have a human in the car as a backup. It appears the car, a Volvo XC90, was going about 40 MPH on dry streets with clear weather at 10 p.m. on a Sunday. An investigation is ongoing since the safety driver did not appear impaired. The victim, a 49 year-old woman, was walking her bicycle in the street. Though this was the first accident involving a pedestrian, one of these autonomous vehicles collided with another car in March of 2017.

Safety measures in place

Because states are eager to encourage testing, there are few regulations in place – not only with Uber, but Waymo, Lyft and Cruise, owned by General Motors. Doug Ducey, governor of Arizona, said in 2017, “We needed our message to Uber, Lyft and other entrepreneurs in Silicon Valley to be that Arizona was open to new ideas.” Originally Arizona mandated a backup driver in the car, but recently that was changed to allow testing of unmanned self-driving cars. This leniency is to boost the economy by allowing a low regulatory environment.

California is on the cusp of allowing unmanned vehicles, but is still investigating the proposition. In its testing of manned self-driving cars, Waymo has produced statistics required by California. When a human has to take control, it’s called a disengagement. In just over a year, Waymo’s cars drove 350,000 miles with 63 disengagements. This averages approximately 5,600 miles between disengagement events, clearly demonstrating the need for more testing before widespread use of unmanned vehicles.

Michael Bennett, an associate research professor at Arizona State University, has been studying the reaction of the public to driverless cars and their artificial intelligence. His comment on the aftermath of the Tempe pedestrian incident reveal his conclusion, “We’ve imagined an event like this as a huge inflection point for the technology and the companies advocating for it. They’re going to have to do a lot to prove that the technology is safe.”

Who’s Fault is Injury from Self-Driving Car?

“Look for insurance companies to lobby for profound changes in state insurance requirements and state laws”, says Dallas lawyer, Ben DuBose. “However, in the Arizona Uber incident, there was a back-up driver in the car. So, there’s still a question of why the back-up driver didn’t disengage and potential liability for her. People will still need car auto insurance and will still have potential liability.”

At the same time, as we head into the self-driving car era, DuBose says to look for additional new legal theories to address the autonomous car features. Automobile manufacturers and software designers will face new product liability claims. As even Volvo Car Corp. Vice President, Anders Karrberg recently testified before Congress “[c]armakers should take liability for any system in the car. So we have declared that if there is a malfunction to the [autonomous driving] system when operating autonomously, we would take the product liability.”

Should Nursing Home Patients Have the Right to Sue?

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Imagine being admitted as a nursing home patient for rehab from an accident. While there you contract a potentially fatal disease solely the fault of inadequate care.

Maybe you have an elderly parent in another state. You determine that a nursing home close to their friends is the only option for your parent to get the care needed. Then you hear from a visitor that your parent is being neglected, or maybe physically, mentally, or emotionally abused.

In these, and other serious personal injury cases like them, you would generally want to sue – not only for the patient, but to let others know there’s a problem.

The arbitration clause

During the Obama presidency, a ruling from the Centers for Medicare and Medicaid Services (CMS) banned facilities that accept Medicare and Medicaid funds from requiring residents to sign pre-dispute arbitration clauses. This ban gave them the option to sue – a positive step for patients already stressed.

This ruling never took place due to a preliminary injunction by the American Health Care Association, the nursing home industry trade group. Now it’s possible there will be no option to go to trial due to a new rule by the Trump administration. Nursing homes would be able to continue the requirement for new residents to sign an arbitration clause. Refusal could mean no admittance.

The proposed new rule would require the agreement to be written in plain language, not legalese, with verification that the person understands. Kelly Bagby, a senior counsel with the AARP Foundation, does not think this makes it fair. “The ‘plain language’ requirement ‘gives with one hand the idea that it’s transparent, and takes away with another by saying ‘you don’t have a choice but to sign this.’”

The pros and cons of arbitration

Signing an arbitration clause in a contract – a common procedure at admittance – takes away the patient’s right to a trial. All conflicts must go through a third-party arbitration, generally more secretive than through a civil court, and awards to the plaintiff are up to 35 percent lower. To a population already in a stressful situation, signing this is often misunderstood or perceived as just one more piece of paper to sign.

There are supporters of arbitration. As Matt Webb, senior vice president of the U.S. Chamber of Commerce’s Institute for Legal Reform says, “arbitration is a system that is simpler, fairer, and faster for all parties concerned.” He goes further to say that “Studies basically show that if the arbitration agreement’s not done prior to a dispute arising, very few if anyone ever really agrees to go into arbitration at that point.”

This statement says a lot about the fairness of arbitration. If it’s so fair and simple, why wouldn’t a person agree without coercion?

What you can do

This is not a ruling – yet. If this concerns you, contact your U.S. representatives and senators and give them your opinion. “We the people” still have a voice.

Microsoft No Longer Forces Secrecy in Sexual Harassment Claims

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In December, Microsoft announced it will no longer force secrecy in sexual harassment claims through the contract clause called forced arbitration. Going forward, Microsoft’s contracts will have this section removed.

What is forced arbitration?

For too long women, and men, subjected to sexual harassment in the workplace have been unable to take the matter to trial due to this clause. This results in fewer public trials and smaller settlements for the victims as claims are mediated through a third party without the ability to go to court. Just as troubling, forced arbitration hides what may be a widespread or ongoing problem within an organization from public knowledge.

Emily Martin, general counsel and vice president for workplace justice at the National Women’s Law Center, said, “By doing this, Microsoft is saying that it’s going to take concrete steps to make its workplace culture more conducive to addressing and preventing harassment. That message is important above and beyond the impact on individuals whose contracts are about to change.”

Martin further stated, “While Microsoft apparently didn’t use these provisions across its workforce, some companies use them more indiscriminately across their workforces to bind lower-wage workers as well as higher-wage workers. By standing up and saying that it believes that these provisions aren’t fair to employees, Microsoft helps change the conversation in a way that has the potential to help a lot of people by increasing the pressure on companies to do the same.”

Will this change sexual harassment claims?

This is a step in the right direction, however approximately 60 million American workers have these arbitration clauses in their contracts, and according to a study by the Employment Rights Advocacy Institute for Law & Policy, 80% of America’s 100 largest companies use them.

While changing the clauses and culture in the large companies would make a huge impact, working in a small company may still bind employees to forced arbitration in the event of sexual harassment. These companies could be fearful of lawsuits that would put them out of business and are not nearly as visible as a company such as Microsoft. Therefore, they will probably not face media disapproval in the same way and are not willing to take their chances in a court of law just to avoid negative publicity. For them, the forced arbitration clause is an insurance policy.

Legislators see need for reform

In December 2017, a bipartisan group of lawmakers called for legislation to end forced arbitration for sexual harassment claims in the workplace. Rep. Cheri Bustos, a Democrat from Illinois sponsored two pieces of legislation: H.R.4734 and H.R.4570. Sen. Kirsten Gillibrand, Democrat from New York, also backs the bill. Sen. Lindsey Graham, Republican from South Carolina, called on the U.S. Chamber of Commerce to support the bill. Both bills were referred to the subcommittee on Regulatory Reform, Commercial and Antitrust Law.

 

Other blog post from DuBose Law Firm

Arbitration Agreements Change for Nursing Homes and Long Term Care Facilities

Texas Texting & Driving Law Takes Effect September 1!

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Sen. Judith Zaffirini, D- Laredo, fought for this day through five legislative sessions comprising ten years. The bill, with her sponsorship, finally passed both House and Senate and was signed into law by Gov. Greg Abbott on June 6, 2017. Now there are only three states remaining without a texting while driving ban – Arizona, Missouri, and Montana. This issue’s long journey included passage of a bill by both the House and Senate in 2011, but a veto by former Gov. Rick Perry. In 2015 it passed the House, but fell short in the Senate.

Even before this law, there were restrictions on phone use in Texas, such as a ban in school zones, drivers under 18, and bus drivers with minor children on board. While waiting for a comprehensive Texas ban, more that 95 cities passed their own local ordinances banning some uses of phones while driving.

Texting ban too limited

Some say the law, as written, doesn’t cover enough distracted driving actions, such as applying makeup, eating, or using GPS. Even when the limited law is broken, the fine of $99 for a first offense and up to $200 for subsequent offenses may not be enough of a deterrent. Critics say the law may be hard to enforce and even confusing to law enforcement as they are only allowed to ticket a violator for texting, not other phone uses. Since using GPS on a phone is still legal, it may enable officers to stop motorists when they are legally using their phones. Even if texting, drivers could easily switch to a GPS app to avoid a ticket.

Sen. Larry Taylor, R-Friendswood, pushed to amend the bill requiring police to actually witness a texting offense before initiating a traffic stop. Taylor stated, “I don’t think that makes me more less safe than someone eating a hamburger, putting makeup on, reading their newspaper on the steering wheel or reading a novel as they drive down the road. I’m much safer than those people.” Taylor’s amendment did not pass, however.

The ban will save lives

Zaffirini read to other senators the names of people injured or killed because of texting while driving, also noting police did not witness the accidents thus countering aspects of Taylor’s amendment. Sen. Joan Huffman, R-Houston, agreed that, though the law may not stop texting while driving, it may cause hesitation. “If this saves the life of one teenager who decides ‘I’ll wait til I’m at the stoplight’ or, ‘I’ll wait until I pull into Sonic and then I’ll text,‘ then we’ve accomplished what we set to accomplish,” she said.

For Dallas attorney Ben DuBose, the law’s passage is a significant step in the right direction. “I’ve represented clients whose lives were nearly destroyed by distracted driving. “No law is perfect,” says DuBose, “but lives will be saved now that texting and driving is against the law in Texas.”

DuBose Law Firm, PLLC
principal office address:
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Dallas, Texas 75206
Phone: 214.389.8199
Fax: 214.389.8399
Sponsored by Attorney Ben K. DuBose, licensed in TX, OK, PA

Effects of Cosmetics are More than Skin Deep

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In the 16th century, a Swiss physician and philosopher, Paracelsus, stated that any substance applied to or in the body can cause harm, given the right circumstances. In other words, “the dose makes the poison.” This is true especially with the wide range of chemicals, nano particles, asbestos contaminated talc, and other substances used in the manufacture of cosmetics.

Revenue from cosmetics is projected at $265 billion worldwide in 2017 for an industry that has potential for harm, but very little oversight. The FDA has an office of Cosmetics and Colors within their Center for Food Safety and Applied Nutrition. Yet, that group is seriously underfunded with a $13 million budget for fiscal year 2017 and has a very limited scope of authority.

Except for color additives, there is no legal requirement for pre-market approval of new products. There is no regulatory group that checks the safety or effectiveness of cosmetic products. In addition, there is no legal requirement for the cosmetic industry to collect or report adverse issues.

What ingredients could be harmful?

Dr. Robert M. Califf, former commissioner of the FDA, along with two other experts said, “For products that are used routinely, small effects over time within large populations can be almost impossible to detect without active surveillance. Even when health risks are substantial, as with tobacco products, the path to identifying and interpreting those safety signals clearly enough to justify regulatory action is often long and tortuous.”

However, that long scientific road has already been traveled with respect to asbestos – still an ingredient in some modern cosmetics. Decades of medical and scientific research long ago reached a consensus that asbestos is a human carcinogen. Yet, a recent investigation revealed asbestos contaminated cosmetics still being sold at a national retail chain that markets to teens. The retailer has since pulled the contaminated product from stores after one third-party found asbestos. A third-party lab hired by the retailer found none – possibly because various batches can contain different constituents. The message is that some asbestos, and other harmful ingredients, can find their way into these non-regulated cosmetics.

More about talc

Talc, a common cosmetics ingredient, is a mineral often mined in close proximity with asbestos and can be contaminated with asbestos. However, due in part to heavy lobbying in the 1970s and 80s, lax regulations allowed asbestos contaminated talc to still be utilized in cosmetics.

Are your cosmetics safe?

If you believe you have been harmed by a cosmetic, report the problem to the Center for Food Safety and Applied Nutrition’s Adverse Event Reporting System (CFSAN) an FDA database for foods, dietary supplements, and cosmetics. When they notice a number of similar reports, they can investigate. This database is also open to the public, so is available to search for adverse health events from your current cosmetics. Unlike foods, there is little ingredient information on cosmetic packaging. Even when there is, dangerous chemicals can be disguised by using scientific names. This makes knowing exactly what you’re using difficult, but there are a few sites such as www.ewg.org with information on a limited number of products.

New legislation

Sens. Dianne Feinstein, D-Calif., and Susan Collins, R-Maine recently introduced legislation creating a mandatory registration of products and facilities. The bill would also increase FDA funding using industry fees, and give other tools to the FDA as protection from risks of personal care products. Making your congressional representatives aware of your support of this bill could help give consumers visibility to dangers.

Meanwhile, check websites for your cosmetics for possible ingredient lists. If no ingredients are shown, email or call the company for more information. If enough people let these companies know that we care about what is put on our bodies, perhaps there will be more effort to using clean ingredients in their products.