How Forced Arbitration Can Ruin your PI Claim

It wasn’t very long ago that General Mills — manufacturer of dozens of familiar food brands such as Cheerios, Betty Crocker and Pillsbury — raised hell when it changed the legal terms on its website requiring all disputes related to the purchase or use of any of its products to go through mandatory arbitration for resolutions. Consumers were outraged that engaging with the company online– whether by using their website, joining their online community, subscribing to email newsletters, or even downloading a coupon– could make them lose their right to sue General Mills for any future wrongdoing.

After copious pressure, General Mills caved. They reversed their position, but still hundreds of large corporations are subjecting consumers to forced arbitration in their terms and conditions. Clauses are even present in employment contracts.

What is Forced Arbitration?

Arbitration is an alternative method of resolving legal disputes in which two or more parties present their sides of a complaint to a “neutral third party” or “neutral panel” outside of a courtroom. There is no judge or jury; it is this “neutral” party who then decides, after hearing both sides, what the proper course of action should be. There is also no way to appeal the decision reached.

Many cases of arbitration involve parties that all mutually agreed to the arbitration. It is increasingly common for personal injury complaints to be resolved this way; it is just one of several avenues you can take to resolve your case, provided you are given the option.

Forced arbitration clauses are present in the fine print of contracts for everything from car loans and student loans to leases, credit cards, checking accounts, insurance contracts, and even nursing home agreements. If you have ever purchased on Amazon, Groupon, paid a Netflix subscription or obtained cell phone service through any of the big providers, you have signed an arbitration clause and may not even know it.

Effects on Consumers

Proponents of arbitration always try to spin it as a low-cost, informal alternative to lawsuits. They purposely mislead consumers by emphasizing there is no requirement for their representation by an attorney. Surely, a company like General Mills could afford to and would bring their own attorneys to arbitration had they

By |April 28th, 2017|Elder Abuse, Personal Injury, Protecting Oregonians|

The Good, The Bad, The Ugly: Portland’s Bike-share Program

By now, you may be familiar with the ubiquitous red-orange bikes around town. They are the meat of Portland’s Nike-sponsored bike-share program, Biketown. The program officially launched nearly a year ago in June 2016 after several years of development and logistical setbacks.

Portland’s Struggle to Acquire Biketown

Portland has long held the reputation of being a bike-friendly city. In fact, it was one of the first cities in the U.S. to brainstorm of some type of bike-share program. Way back in 1994, the city launched the Yellow Bike Project in an attempt to model Amsterdam’s free community bike program. This ended up in disaster. The city teamed up with a nonprofit organization to release free bikes to whoever could use one, with only the honor system to protect them. Bikes were quickly vandalized or stolen.

In 2006, the city requested a municipal bike-share program proposal. This request was canceled two years later to dedicate more time to analyzing logistics. In 2011, activists from Bicycle Transportation Alliance encouraged the project’s revival. Further unfortunate events ensued. It took another two years for federal funds to disperse as financial obstacles struck the bike-share industry.

In 2014, Bikeshare Holdings purchased Alta Bicycle Share, the company the city had selected to operate its program. Later that year, the company’s major bike supplier filed for bankruptcy.

Alas, some light appeared at the end of the tunnel when in 2015, PBOT’s new director, who had worked on launching bike-shares in DC and Chicago, was determined to launch whether or not a sponsor was involved. By 2016, Portland struck a deal with Nike, allowing the program they were developing with Motivate, the updated Alta Bicycle Share operator, to expand it.

For all the setbacks, the program has seen a significant amount of use since it finally launched last year. Let’s take a closer look.

The Good

Biketown Portland is a relatively cost-effective bike-share program that contains more smart bikes than any other city bike-share. The technology to manage the program is less expensive than traditional systems that Motivate has employed in other cities. This is good news for taxpayers considering the program is publicly funded.

They aren’t called “smart bikes” for nothing. Each Biketown bike is equipped with GPS tracking and the

By |April 24th, 2017|Bicycle Accidents|

Can Microwaves Be Used to Diagnose Bleeding from TBI?

Stroke-detecting technology using microwaves shows promise in detecting intracranial bleeding from traumatic brain injury. 

Treatment for severe traumatic brain injuries (TBIs) characterized by bleeding in the brain (intracranial) requires opening the skull to release pressure and remove clotted blood, called a hematoma. The survival rate is only ten percent if the hematoma is not removed within four hours. Getting a patient with an intracranial hematoma to a neurosurgical center with radiology facilities for a CT scan in the shortest amount of time then becomes a matter of life and death.

“It’s not so much an issue of being able to do more for them (TBI patients) pre-hospital wise, it’s a question of triage, of transporting them to the right hospital, and that’s a huge problem,” said Mikal Elam, chair of clinical neurophysiology at the University of Gothenburg.

Stroke Detecting Device May Detect Hematoma from TBI

The goal has been to find a portable device to detect bleeding from TBI at low cost to convey diagnostic information in a fast, non-invasive, and safe manner. Researchers at Chalmers University of Technology in Sweden are now considering applying an already existing, light-weight (under 10 pounds), portable stroke-detecting device called a Strokefinder to quickly diagnose intracranial bleeding at the site of a traumatic brain injury.

Built by Medfield Diagnostics, the Strokefinder is a tool already used to differentiate between strokes without a clot blocking blood flow and those that involve bleeding. Medfield is collaborating with Chalmers’ and Gothenburg’s Sahlgrenska University Hospital on projects featuring the Strokefinder, believing doctors there would have a better idea of what they need than engineers at the company.

Here’s How It Works

The Strokefinder device a patient’s head is placed inside has eight microwave antennas on it, each one firing a small amount of microwave radiation through the brain (between 1/100th and 1/10th what you receive from a cell phone conversation), while the other antennas pick it up. The process is repeated at several different frequencies. The microwaves quietly progress through the tissue in different ways, depending on the consistency of the tissue, and are then filtered via an algorithm instead of an image, to enable the hematoma to stand out as either a stroke or a TBI. The patient can’t feel it working, and the entire process takes only 45 seconds. Once a hematoma is detected, the patient can be quickly transported to the correct hospital with a neurosurgical center.

By |April 21st, 2017|Brain Injury|

EPA Refuses to Ban Toxic Pesticide Chlorpyrifos

Dangers of Pesticide Chlorpyrifos

On March 29, 2017, the U.S. Environmental Protection Agency (EPA) issued a statement refusing to ban chlorpyrifos used in agriculture. For decades, corn, wheat, apples and citrus have been sprayed with chlorpyrifos, shown to cause permanent brain and nerve damage in children. The EPA even admits this, but under chemical industry pressure still refuses to remove the product.

Environmental groups have repeatedly pushed the EPA to ban the organophosphate pesticide chlorpyrifos, known to harm health, water and wildlife. Following the EPA’s March refusal to ban this hazardous chemical, on April 5, 2017 the environmental group Earthjustice, representing Pesticide Action Network North America (PANNA) and the Natural Resources Defense Council (NRDC), asked the U.S. Court of Appeals for the Ninth Circuit to direct the EPA to act within 30 days to ban all uses of chlorpyrifos, based on the agency’s repeated findings that the pesticide is unsafe.

Organophosphates were developed by the Nazis during World War II as nerve gas agents. Chlorpyrifos is an organophosphate that in 1965 was registered as an insecticide in the U.S. by Dow Chemical Company for both agricultural and residential use to damage the nervous system of insects. Unfortunately, it has the same effect on humans exposed to it.  

The 1996 Food Quality Protection Act (FQPA), passed unanimously in Congress, is a health-based standard that requires the EPA to protect children from unsafe exposures to pesticides. The FQPA requires the EPA to ensure with reasonable certainty that “no harm will result to infants and children from aggregate exposure” to pesticides. If the EPA cannot ensure that a pesticide won’t harm children, the law requires the EPA to ban uses of the pesticide.

Chlorpyrifos, due to its toxicity was banned for home use in the U.S. in 2000. Before that, it was used to treat carpets and in flea bombs and termiticides. Chlorpyrifos is harmful if it is touched, inhaled, or eaten. Even low-dose exposure to organophosphates has been found to harm brain development in children, leading to higher risk of disorders like autism. Prenatal exposures to chlorpyrifos are associated with lower birth weight, reduced IQ, loss of working memory, attention disorders, and delayed motor development.

Chlorpyrifos exposure may lead to acute toxicity at higher doses. Persistent health effects follow acute poisoning or from long-term exposure to low doses, and developmental effects appear in fetuses and children even at very small doses.

In 2007, Pesticide Action Network of North America (PANNA) and Natural Resources Defense Council (NRDC) filed a petition with the EPA seeking a chlorpyrifos agricultural ban based on growing evidence of risks and harm that would eliminate all uses of the pesticide. Seven years and several lawsuits and delays later, the EPA had still not taken action on the petition. In September, 2014 on behalf of PANNA and NRDC, Earthjustice filed a petition in the Ninth Circuit Court of Appeals compelling the EPA to act on the petition. Finally, on October 31, 2015, the court ordered the EPA to issue a final response to the petition. Under pressure from chemical lobbyists, the deadline was not met, causing the court in August, 2016 to tell the EPA to take final action on the petition by March 31, 2017, which on March 29, 2017 it refused to do.

By |April 16th, 2017|Brain Injury|

Portland Bike-Share Bars Lawsuits

Nike-sponsored Biketown is Portland’s premier bike-share program. A thousand bright red-orange bikes eagerly await commuters at one hundred stations across downtown and local neighborhoods. At $2.50/ hour or $12 for a full day, these bikes are attractive and convenient options for city transportation. The program launched in July 2016 with extremely promising results. A total of 136,000 miles were traveled over 59,000 trips in its very first month. Biketown allows locals and tourists alike to traverse our bike-friendly city easily and relatively cheaply; yet what consumers may not know is that with each Biketown agreement they sign, they waive their constitutional right to a civil jury trial in court if something goes awry.

How Forced Arbitration Impacts Consumers

Arbitration clauses were developed as an informal, expedited method of resolving common disputes among businesses. The model does not work well when a consumer is pitted against a corporation, for these two entities are not equal.

Companies that include forced arbitration clauses in their user agreements try to paint them as user-friendly alternatives to complicated and unpleasant court proceedings. Little do most people know that arbitration is heavily biased toward the corporation. It is also generally not a more cost-effective approach to dispute resolution than taking someone to court.

Portland’s Biketown yet Another Peddler of Forced Arbitration

The program boasts it is the perfect solution for one-way trips around town. Its own website states it is “fun, affordable, and convenient;” yet, in the depths of the Biketown User Agreement there is a forced arbitration clause buried in the section titled “Binding Arbitration; Class Action Waiver” that prevents users of the popular bike-share program from pursuing their claims in court or as part of a class action settlement. The only solution the contract provides is to pursue mandatory arbitration to resolve disputes.

A portion of the clause reads:

“You agree that any dispute or Claim relating in any way to Your use of the Services will be resolved by binding arbitration, rather than in court.”

Forced arbitration clauses have long stripped away the rights of consumers to stand up to corporations for wrongdoing. Over the past 30-odd years, companies have used these clauses as shields against taking responsibility for violating a myriad of consumer protections. These clauses are everywhere —

By |April 14th, 2017|Bicycle Accidents|

Top 7 Ways Forced Arbitration Harms Consumers

Arbitration is a dispute resolution alternative that aims to keep court costs down and quicken the time it takes to reach an agreement between two parties. Originally, arbitration was used to settle matters between two companies on equal footing. Today, arbitration is used by large corporations against consumers who are at a blatant disadvantage, having few resources and no power in the industry. While arbitration was first intended as an alternative for parties in mutual agreement of using arbitration instead of taking matters to court, these days millions of consumers are forced into it without even realizing it. Talk to an attorney if you believe you are bound by an arbitration clause in your personal injury case.

Where Can I Find Arbitration Clauses?

Arbitration clauses are hidden in contracts of everything from the terms and conditions of your credit or debit card to your cable, internet, or Netflix subscription. If you are a fan of shopping online, you may be surprised to know that Amazon’s Conditions of Use subjects shoppers to binding arbitration to resolve disputes. Even some healthcare providers hide these in the paperwork you have to fill out before a doctor will see you. Nursing homes and adult care facilities may also include arbitration clauses in their contracts, although changes to the laws allowing this are currently in progress.

How does Arbitration Hurt?

When a powerful entity such as a hospital is pitted against a single consumer, it rarely works out well for the consumer in the end. Arbitration is cheap for the company that mandates arbitration, and it is a high-cost pursuit for the claimant who wishes to proceed with the complaint. The “neutral third party” who is in charge of deciding an appropriate course of action is usually a retired judge, a judge who does arbitration as a source of extra income, or a lawyer trained in arbitration. These arbitrators have usually been hired several times by the same company and have a chummy relationship with the company, automatically inserting bias into the supposedly “neutral” nature of their position. Ultimately, forced arbitration is currently an accepted way for companies to strip consumers of their legal right to sue.

High Costs to Pursue Claim

To begin the arbitration process, claimants

By |April 12th, 2017|Protecting Oregonians|

Death and Serious Automobile Injury Claims against Drunk Driver

It happens in different ways.

Jim should be alive. He waited for the crosswalk light and began walking across. About half way through a drunk driver ran him down, sped off and left him for dead.

Sally just finished tuning her road bike. Excited to meet friends later on, Sally happily pedaled in a bike lane she knew well. Seconds later, a taxi cab ran her off the road and into a guard rail. The taxi gunned it and disappeared. Sally also died.

Because of severe penalties, it is not uncommon for intoxicated drivers to leave the scene. A former insurance company attorney, Richard Rizk knows how to investigate hit and run and drunk driving cases.

Many cases involving drunk drivers, hit and run or reckless driving can yield very significant damages and even a punitive damages award. Insurers know this so they try to settle such claims quickly for “pennies on the dollar”. If an insurer contacts you to settle such a claim, don’t take the bait.

Even when it is impossible to identify a drunken driver who left the scene, you may have a claim against your own insurer under your uninsured or underinsured coverage. These coverages were intended to protect from incidents caused by persons who had no insurance, did not have enough insurance or fled the scene and could not be identified.

Another option you may not have considered would be to file a claim against the bar, store or host who served the alcohol while he or she was already drunk. Be aware that special rules and limits apply to claims against servers. Do not delay.

By |November 25th, 2009|Auto Accidents, Drunk Driving and DUII|

Oregon Auto Insurance PIP Law: Whole New World?

"PIP" is an acronym for Personal Injury Protection. In Oregon, most all auto insurers (exceptions exist for some commercial drivers, for example) must provide medical coverage known as "PIP" in auto policies issued in Oregon. PIP is required no fault insurance provided by your......

By |March 19th, 2009|Insurance Law|

Recommending Richard Rizk

To say that by having Richard Rizk adjudicate an insurance claim was a serendipitous event is an understatement. My wife, a registered nurse, was seriously injured. Three attorneys, upon separate accounts over several years, failed to achieve monetary compensation. One attorney, who knows Richard......

By |November 5th, 2008|Misc|