Author Archive for Jen Petersen

Death with Dignity for a Retired Falmouth Physician


Who would understand the implications of a “Death with Dignity,” or physician-assisted death, option more thoroughly than physicians? Dr. Roger M. Kligler and Dr. Alan Steinbach have long believed in and advocated for a patient’s right to obtain medication from their doctor in order to avoid extreme suffering due to terminal illness. As a physician, Dr. Kligler has has witnessed his own patients’ quality of life deteriorate during the final stages of cancer. Now that he is dealing with stage 4 metastatic prostate cancer, the fight is personal. He has expressed the desire to simply have the option to self-administer the lethal medication if his pain and suffering become unbearable without it resulting in the prosecution of his doctors.

Is a lawsuit the best way to move forward?

Unfortunately, Dr. Kligler may not have the time to wait for the next legislative session before receiving an answer. Ideally, a bill would pass successfully through the state house and senate in order to become a state law. Representative Louis Kafka (D-Stoughton) has filed at least four previous versions of an assisted death bill, beginning in 2011. He notes that each bill has garnered more support than the prior version even though the bills have not yet made it out of committee. The latest Compassionate Care for the Terminally Ill Act was co-sponsored by 39 Massachusetts lawmakers was filed in January 2015. The Joint Committee on Public Health essentially shut the bill down in June of 2016 by suggesting it be massachusetts-falmouth-physician-kliglerreviewed further.

Another option that would allow such a law to take effect would be a ballot initiative. The problem for Dr. Kligler is once again time. Because of Massachusetts ballot initiative rules, the next time a Death with Dignity bill can be presented to the public for a vote is in 2018. Although nearly 60% of the Commonwealth was in favor of a patient’s right to choose physician-assisted death, the 2012 ballot initiative was defeated 51% to 49%.

At this point, Dr. Kligler’s only hope at gaining the dignity to choose when and how he dies is if the court steps in to clarify the issue. On a positive note, there is not a law in Massachusetts that prohibits doctors from providing assistance to terminally ill patients who are ready to end their own lives. Compassion & Choices is a national organization that helped file the lawsuit on behalf of Kligler and Steinbach. The lawsuit seeks to determine what is actually allowed and what is explicitly forbidden according to current laws. After a statement made in a separate case in which justices seemed to acknowledge that a mature adult suffering from a terminal illness who may seek support, comfort and eventually assistance in ending their own life is a unique situation worthy of consideration.



Lawsuit Around 2011 Lake Death Settled

Tony and Paulette Bieker only desired to have a relaxing weekend in the outdoors on Antelope Lake. Unfortunately, the camping and lake weekend the couple had planned out quickly turned into a disaster during mid-July of 2011.

Antelope lake is located slightly northwest of Hays and is controlled by the Parks and Tourism division of the Kansas Department of Wildlife. On July 16 and 17, 2011, Bieker’s boat had somehow become pinned to slightly concealed obstacles that were hidden by the water. Although the boat was around 150 feet from shore, the boat was completely stuck. Bieker tried desperately to dislodge his boat from the obstacles but was unable to. He settled in and waited for sunlight to return when he intended to shout for help. His wife remained on land at their camping site.

As darkness arrived, an officer of the Kansas Department of Wildlife named Michael McGinnis saw that the boat remained on the water despite darkness setting in. The boat turned its emergency lights on and bieker-last-words-quotedirected them at Bieker. While Bieker may have thought this was help arriving, the officer instead ordered Bieker and his boat to get off of the water.

Bieker obeyed orders and donned a lifejacket. He entered the water and attempted to knock the boat free from its captors. Bieker’s wife saw that he had entered the water and shouted that is wasn’t safe to swim at night. Bieker was again unable to free the boat but was unable to climb back into the boat. He realized he was in trouble and shouted the words “I love you” to his wife.

Bieker slipped under the water. McGinnis tried three times to throw a rescue device to Bieker. He did not allow Bieker’s wife to swim to her husband’s assistance. McGinnis never called for backup. McGinnis dragged Bieker to shore and attempted emergency treatment unsuccessfully. He was pronounced dead at Hays Medical Center.

The lawsuit against the state was settled in the amount of $33,000. The state argued for dismissal of the lawsuit on the grounds that a law enforcement officer does not have any duty to provide extraordinary medical care. The plaintiff had sought over $75,000 in damages. $15,000 of the amount will come from the state’s treasury fund with the rest coming directly from the Kansas Wildlife Department.

The Flint Water Crisis – Parents Fight for their Children’s Education with Class-Action Lawsuit

The water in Flint, Michigan, has been extremely unsafe to consume since the city switched its water supply in 2014 from their Detroit source to the Flint River. Months after the switch, local residents were complaining about the color and quality of the water, fearing it was unsafe to drink.

It was determined through testing that the water supply in Flint was contaminated with dangerous levels of lead. Professionals claimed that the reason for the lead contamination was due to the lack of corrosion controls of the city’s water supply.

In January 2016, President Barack Obama issued a federal state of emergency in Flint due to the water crisis. However, despite the efforts of the city’s government to fix the water contamination issue, the community feels that the situation is being handled extremely poorly in schools.

On October 18th, 2016, fifteen families filed a class-action lawsuit against the Flint School District and the state of Michigan to seek help for their children at school. In the Flint School District alone, over 30,000 children have been exposed to lead and over 4% of children have dangerous levels of lead in their blood.

flint-parents-stories-lead-exposureLead exposure in children can lead to irreversible brain damage, including learning disabilities and behavioral problems. The parents behind the law suit claim that the school is lacking resources to deal with children with special needs, and fear that the dangerous exposure to lead over the past few years has increased the number of children in need of special education.

Local parents share frightening stories about their children being suspended up to 50 times from school due to their behavior, which they believe is due to developmental issues. When parents requested screening for their children to determine if special education was needed, nothing was done. In fact, some parents claimed that their children were physical restrained by staff and punished rather than evaluated for help.

The lawsuit seeks that the Flint School District implement regular and frequent testing for learning disabilities in children, and increase their programs and resources for special needs education. The parents of Flint, Michigan, want their children to have a fair chance at a quality education and feel it’s the state’s responsibility to take care of this issue, that more than likely was caused by extreme negligence to the ill water supply that the city has suffered from for years.


Rockford Park District Pays Settlements Up to $2.4M for Water Ride Injuries

The deadly Verrückt incident isn’t the only water attraction making headlines recently. A water slide at Magic Waters – a waterpark located in Cherry Valley, Illinois – is the center of a 12 personal injury lawsuits, and the Rockford Park District is paying a hefty price.

Splash Blaster, a water coaster, carries two riders on a series of ups and downs, twists and turns. The ride begins on a conveyer belt that brings the riders up 35 feet before plummeting through a dark tunnel. The ride continues its course gaining momentum through high-pressured water jets. The water coaster debuted in 2000 and has since been a favorite of park patrons. Often, guests would rush to the Splash Blaster immediately upon the park’s opening, and the line often clocked a 1-2 hour wait.

Despite being a fan favorite, the Splash Blaster was no stranger to accidents. A dozen park patrons have filed a personal injury lawsuit against Magic Waters. Most of these cases focused on compression fractures of the spine as the sustained injury. Plaintiffs attribute under inflated rafts combined with that initial drop as the cause of the fractures.

Splash Blaster was closed in September of 2015, and six months later the first lawsuit was filed in March. Three cases are still pending (and scheduled for later this year); however, the total settlements of the first nine lawsuits amounts to a whopping $2,414,500. The individual settlements of those nine cases ranges from $38,500 to $925,000, with each case factoring in personal injury, medical expenses, and rockford-park-district-executive-statementtime unable to work.

Rockford Park District executive Tim Dimke issued a statement on the water park’s commitment to safety; therefore, instead of trying to repair or fix the water coaster, Splash Blaster will be permanently closed and taken down. It will be replaced with a newer, safer (but taller) 55-foot ride called the AquaLoop. AquaLoop will open in the 2017 summer season. Magic Waters Waterpark was issued $3.5 million to apply towards the construction of the AquaLoop, improvements to the children’s area (Little Lagoon), and for general safety and compliance upgrades.

Family of Man Hit by Truck Sues Driver

The family of a man hit by a truck driven by his fiancée is now suing the woman for wrongful death. Las Cruces resident Carlos Nevarez III was hit and killed in June 2013 when Annette Fuschini ran him over as he was walking along a sidewalk after getting out of her truck.

Nevarez, who turned 42 that day, and Fuschini, 39, were in the middle of an argument when Nevarez got out of the truck near a car wash. He started walking through landscaping gravel near a sidewalk when he was hit. Nevarez initially survived the crash but later died at a hospital in Las Cruces.

While Fuschini was initially charged with first-degree murder, she was eventually convicted of aggravated DWI and involuntary manslaughter. The nevarez-family-quotemanslaughter charge is a fourth-degree felony, and she was given three and a half years in prison.

Both Fuschini and Geico Indemnity Co., her insurance carrier, were named as defendants in the suit. Nevarez’s family filed the suit on June 10 in Las Cruces’ 3rd Judicial District Court. The lawsuit accuses Fuschini of careless and inattentive driving, failure to exercise due care, and failure to stop, claiming the crash was the direct result of her negligence. The suit also claims Nevarez’s family has endured personal suffering, anguish, and pain. The family requested that damages be determined by the court at the trial, which does not yet have a date.

The family’s attorney, John P. Cosentino, did not comment on the suit when requested, but he did file a notice in an attempt to delay the case because he was still waiting for Fuschini to respond. He has claimed he can’t find Fuschini, but Ashley Espinoza, a spokeswoman with the Department of Corrections, noted that Fuschini has been in regular contact with her probation officer after finishing her parole.

The two attorneys representing both Fuschini and Geico, John A. Frase and Steven L. Gonzales of Albuquerque, asked for the suit to be dismissed in a filing on August 25. The judge in the case, Marci E. Beyer, has not yet addressed the latest filing.

Congress Paves the Way For Americans to Sue Foreign Governments

On September 28th, 2016, the House of Representatives overrode President Obama’s veto of a bill that allows people to sue foreign governments accused of directly aiding terrorists who commit acts on American soil. The House vote followed an override by the Senate, marking the first time Congress overrode an Obama veto.

What Does This New Law Mean?

The Justice Against Sponsors of Terrorism Act, or JASTA, opens the door to Americans suing other countries for damages caused by terrorism. It does not limit which countries can be sued, but the immediate impact is thought to be felt by families of 9/11 victims suing Saudi Arabia. The legal waters get murky when it comes to how these cases get through the justice system. JASTA lets the Secretary of State put cases on indefinite hold, so in theory any number of cases might never get off the ground. The bill also contains no provision for how money will be secured if a judge rules in the plaintiff’s favor and awards damages against a foreign nation.

president-obama-jasta-quoteArguments For JASTA

Lawmakers who participated in the override of the president’s veto say they are working on behalf of victims, who they believe should have the right to find justice after acts of terrorism. These members of Congress see diplomatic problems that may arise from the bill as the responsibility of the executive branch, while their own job is to pass laws based on what the people want.

Arguments Against JASTA

President Obama and several advisors argued that the law represents a diplomatic nightmare that hurts our relationships with countries such as Saudi Arabia, which long claimed to have no part in the 9/11 attacks. Secretary of Defense Ash Carter also warned Congress that JASTA opens the door to other countries passing reciprocal bills that leave the United States open to lawsuits.

The Future of JASTA

Several members of Congress have already expressed a desire to narrow the law, for example by limiting it to just the acts committed on 9/11. Others are taking a wait and see attitude, and would consider changes should we see negative consequences from JASTA.



Lawsuit Alleges Chicken Producers Colluded to Raise Prices

According to a recent piece published in the Denver Post, a group of food distribution companies is filing an anti-trust suit against a number of chicken producers alleging collusion to drive up prices. Some of the actions that have been alleged include slaughtering chickens before they were grown enough to be sold, selling or breaking eggs before they could hatch, and even buying one another’s product. The chicken producers, which include such companies such as Pilgrim’s Pride and Tyson, have even been accused of keeping their breeding stock low to limit supplies and therefore keep prices inflated for the foreseeable future.

The alleged collusion may have exacted a 50 percent premium in chicken prices at the grocery store. As the Huffington Post reported in 2014, chicken has become more popular than beef in the United States, due to higher beef prices and health-conscious consumers, so many were affected,

maplevale-farms-quoteThe chicken producers deny any collusion. National Chicken Council President Mike Brown suggested in an October 2014 article that the underlying reason for higher chicken prices has been an increase in the price of feed caused by the diversion of corn to produce ethanol. An article in the Financial Times reports that the price of corn spiked in both 2008 and 2012, ascribed to drought effects, but corn had declined in price so that it is currently at levels last seen before the ethanol mandate was enacted in 2007.

The litigants, led by New York food distributor Maplevale Farms, believe that they have connected the dots to indicate price collusion in the chicken-producing industry. Lawyers for the plaintiffs believe that they can show communication between various chicken producers that led to cutbacks in production throughout the sector in 2007 and 2008, leading to price spikes starting in 2009.

However, prices began to fall again in 2010 and 2011. The suit alleges that the chicken producers colluded again, even going so far as selling eggs to Mexico rather than building up stock. Currently, with the avian flu export ban lifted and feed prices declining, profit margins are rising for chicken producers.

Now the task for the litigants is to prove collusion by inference, which may be easier said than done.


Sexting Case has Huge Implications for Iowa Teen

Everyone would agree that spreading child pornography or exploiting minors is wrong, morally and legally. It is likely that most of us would vehemently and aggressively seek to punish those who participate in such activities. But what if the victim was actually the perpetrator? That one probably has you scratching your head. Consider the case of an Iowa teenager who used the mobile app Snapchat to send semi-nude photos of herself to a friend. The high school freshman posed in front of a mirror, snapped a few photos of herself and forwarded them to a friend. Little did she realize that she was breaking an Iowa law.

teen-snapchat-lawsuit-quoteIowa law stipulates that anyone who spreads obscene materials to minors has committed a crime known as sexual exploitation. Although in this case, and others like it in Iowa, the minor shared the photos, it is still considered to be either a Class C or Class D felony offense. The teenaged girl and her family assert that this is perhaps bad judgment but certainly not criminal. They have filed a lawsuit to prevent the Marion County Attorney from charging the girl with sexual exploitation.

The Journal of American Academy of Psychiatry and the Law Online cites research that 4-25 percent of minors 12-17 have admitted sending or sharing nude photos. A 2013 study of 378 prosecutors found that 62 percent had worked juvenile sexting cases; 36 percent had filled charges; and 21 percent had filed felony charges. The most serious charges included production of child pornography. 20 states have passed sexting laws as of July 2015.

The implications of this case for the teen are far reaching. County Attorney Ed Bull has stated that if found guilty, the girl may have to register as a sex offender. The American Civil Liberties Union of Iowa has weighed in on First Amendment protection since the images shared by the teenager are not nude photos. The girl is wearing boy shorts and a sports bra in one picture, and topless in the other. Her hair is covering her breasts in the second photo. Lawyers for the family argue that her First Amendment rights will be violated if the prosecutor moves forward with criminal charges.

Teenagers are receiving cell phones in increasing numbers. If the research holds true, 4-25 percent of the nation’s minors could become registered sex offenders before they are old enough to vote. While most states’ attorneys agrees that sexual exploitation laws were not intentionally created to apply to youth, the legal implications for the teen in this case remain to be seen.



$100 Million in Fines Sought From Exxon by Conservation Group Lawsuit

With so much recent attention on global warming, pollution in the water supply, and other environmental threats in the United States, conservationists and environmental groups are taking a bigger stand against major energy giants. One of the more recent actions taken is by the Boston-based Conservation Law Foundation (CLF), which is pressing for $100 million or more in civil penalties against ExxonMobil by using the guidelines set forth by the federal Clean Water Act. On September 29th, the group filed a massive lawsuit in district court, claiming Exxon is responsible for decades of contaminating pollution of Mystic River. The lawsuit filed also claims ExxonMobil blatantly disregarded the predicted threats of climate change, even though some of their own scientists researched enough to connect the dots between carbon dioxide emissions, fossil fuels, and climate change.

The lawsuit points out one of Exxon’s own terminals in an area prone to sea-level rise.

Even one of ExxonMobil’s own terminals, Everett Terminal in Massachusetts, is located in an area where storm surge and rising sea level due to climate change is a major threat, according to some of the claims in the lawsuit documentation. This specific terminal is responsible for the storage and transportation of diesel, gasoline, and even oil. If the terminal is damaged by rising sea water, and even bigger pollution issue could come into play with the Mystic River and its conjoining tributaries. CLF has claimed flood maps show this terminal could be at risk with even moderate rainfall amounts. Yet, Exxon has refused to relocate or re-engineer the facility to protect against such an impending threat.

Exxon is rebutting the claims in the lawsuit through media statements.

exxon-argument-quoteExxon is claiming they will fight these claims in the lawsuit and the company spokesperson, Todd Spitler even goes as far as saying the suit is merely an attempt to draw attention to a political agenda. Their primary argument comes along with a rebuttal based on the premise that the lawsuit suggests Exxon had knowledge about climate science at an advanced level even when this research was only in its infant stages. Exxon is also suggesting discredibility of the lawsuit because of the fact that Exxon has a prior history of working with the UN Intergovernmental Panel on Climate Change and the Department of Energy in support of research into the matter.

Lax Treadmill Safety Standards Exposed in Brain Injury Lawsuit

The Department of Health and Human Services recommends 30 minutes of physical activity every day. Doctors encourage exercise so enthusiastically because exercise improves mental, physical, and emotional health. Exercise is the key to a healthy, happier life, but what happens when exercise is the cause of pain or injury? In fact, USA Today reported that nearly 460,000 people suffered injuries from exercise equipment. In January 2011, Etelvina Jimenez experienced a traumatic brain injury while operating a treadmill. Her lawsuit against 24 Hour Fitness is igniting a national discussion about the safety of gym equipment – particularly treadmills – and the responsibility of gyms to reduce risk of injury to gym patrons.

Types of equipment-related injuries

  • Overuse
  • User error
  • Mechanical malfunction
  • Improper equipment spacing

Treadmill risks

Treadmills pose a particular risk because the machine moves whether or not the user is moving. For instance, consider an upright bike or an elliptical: as soon as the user stops moving, the machine slows and stops. Treadmill belts, however, run continuously until the user pushes the “stop” button or activates the emergency stop.

Etelvina Jimenez’s injury highlights the particular problem of treadmills. Brain scans revealed that Jimenez fainted (medically, she experienced a syncope) and fell backwards. Fainting and falling while using a treadmill is dangerous by itself, but Jimenez was thrown backwards and hit her head on the base of a leg machine, which was 3 feet and 10 inches behind her treadmill. The fall caused multiple fractures in her skull and required multiple surgeries.

Jimenez’s lawsuit highlights treadmill dangers

The most common treadmill-related injuries are pinched fingers or burned skin from a fall. However, more serious injuries occur with inadequate equipment spacing. If a treadmill is close to a back wall, a gym patron is potentially at risk for falling and becoming pinned between the wall and the rotating belt. ASTM International recommends a clearance of 6.5 feet behind each treadmill for this very reason. The spacing behind Jimenez’s treadmill was nowhere near the recommended 6.5 feet gap. However, there is no agency that conducts safety checks or enforces the recommend clearance. The closest thing to a safety check is the fire department which ensures that no fire exits are blocked.

If safety concerns can be addressed properly, perhaps injuries like Jimenez’s will become a thing of the past.