Farah & Farah E-Newsletter: November 2012
In This Issue
Cell Phones – Search & Seizure
In a recent Federal Appeals Court Ruling the Court held that the police violated the 4th Amendment protection against illegal search and seizure when they failed to obtain a warrant before searching the contents of a drug suspect’s cell phone. When the suspect was arrested, the police found a cell phone in the apartment containing photographs suggesting that the defendant was a drug trafficker. The Court ruled that “a person has the same reasonable expectation of privacy in the concealed digital contents of a cellular telephone as a person has in the concealed physical contents of a container.”
The Court commented “the police were required to obtain a search warrant before searching for photographs concealed within the cellular telephone”. Based on this case, this same reasoning could apply probably any other electronic device that collects data including I-pads, laptops, etc. Under the Constitution any evidence that is illegally or improperly seized cannot be used against the suspect.
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Black Box and Automobiles
We’ve all heard of “black boxes” popularly known as Event Gathering Recorders (EDRs) which have been the key to solve the mysteries of airplane crashes for years. A lot of people are not aware that they have been present in semi-trucks for a long period of time and even in automobiles since the mid-1990s. The problems with these Event Gathering Recorders in automobiles is that different auto makers collect different data and use different systems to retrieve it.
Now the National Highway Traffic Safety Administration as of October 1, 2012, will require that the data collected by these black boxes be standardized. The ruling will also determine who owns the data, how it can be retrieved and who can retrieve it. This is very important because in several of the cases we’ve dealt with where we’ve tried to retrieve the data, we’ve gotten push back from some auto manufacturers because they claim it is their information and that we are not entitled to it. It is very difficult to read the data unless you are the manufacturer of the vehicle. This new government ruling does not require black boxes in vehicles, but the intent is to probably make them mandatory in the future.
Under the new NHTSA ruling the data must include:
- The crash force in forward and side directions;
- The duration of the crash event;
- Indicated vehicle speed;
- Accelerator position;
- Engine rpm;
- Brake application and anti-lock brake activation;
- Steering wheel angle;
- Stability control engagement;
- Vehicle roll angle, in case of a roll over;
- Number of times the vehicle has been started;
- Driver and front-passenger seat belt engagement, and pretensioner or force-limiter engagement;
- Airbag deployment;
- Front seat positions;
- Occupant size; and
- Number of crashes (one or more impacts during the final crash event).
A lot of this information obviously can be used to prove who was at fault or is responsible for the accident. Our perspective is that we are for these new rules because a lot of times insurance companies take an untenable position as to what caused the accident just to try to wear down the plaintiff and drive down the value of the claim. This information will be invaluable so we can prove who is at fault in an accident. We also hope that the government will allow the owners of the cars to own the data. If the data can be collected we will have just that much more information about the causes of accidents and hopefully it will lead to safer vehicles.
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Victims of sexual harassment can recover damages for loss of income, emotional pain and mental anguish, inconvenience, loss of enjoyment of life and other damages. There are two types of sexual harassment:
1) Quid Pro Quo: This type of harassment is based on a proposal “if you so something for me, I’ll do something for you”. It simply means that a supervisor or person in authority demands sexual favors in exchange for getting or keeping a job or job benefits. Companies are liable for damages caused as a result of a supervisor’s actions.
2) Hostile Work Environment: There is no exact definition for a hostile work environment but it typically involves sexual advances, touching, degrading comments, vulgar language, jokes of a sexual nature or questions of a sexual nature. An employer can be responsible for such behavior when it arises to a level that causes the workplace to become hostile or offensive.
When you are a victim of sexual harassment, first read the company policy so that you’ll know what steps to take if it happens to you. Typically, these steps must be followed in order to file a claim. If, after you report the harassment, the conduct continues the next step would be to file a complaint with the Equal Employment Opportunity Commission or in some cases, with a state agency. Any EEOC complaint can be filed in person, on-line, or by mail or telephone.
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50 Million Uninsured in the US equals 50,000+ Avoidable Deaths A Year
Our office subscribes to a monthly publication called Public Citizen Health Letter. A lot of people know Public Citizen is an organization started by Ralph Nader many years ago. Its sole purpose is to make our country a safer place by exposing defective products and defective drugs. They have also filed numerous lawsuits fighting big corporate interests when they try to take advantage of the consumer. In its most recent publications they presented data from a study at Harvard that showed that according to the U.S. Census Bureau, there are about 50 million people in the country lacking health insurance and that among the uninsured, there is an excess mortality of 40% – compared to people who have health insurance – because they don’t have health insurance. The researchers estimated that almost 45,000 people died each year from causes attributable to their uninsured status.
They suggest that a way to provide insurance to these 50 million would be to cut out all the administrative waste of the health insurance industry which is set at approximately $400 billion a year. This money would be more than sufficient to provide health insurance to the 50 million uninsured. A lot of the 400 billion dollars is spent on employees of the health insurance industries who are being paid for their expertise in denying health care.
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