Smart Backstage » Legal Counsel Resources

Durom Recall Lawsuits Coming Very Rapidly

admin — Fri, 22 May 2009 09:42:13 +0000

Every year, joint replacements are given to many Americans. It is a method for senior citizens or anyone with worn out joints to obtain additional years of being active and enjoying life. Patients trust that a procedure such as this is so common and routine, they don’t question their doctors opinions nor do they question the manufacturers of their joint replacements about the quality of the product being implanted into them. This has led to practices that can actually cause injury to you or your loved ones. If you know someone who has received a hip replacement, read on for this important information about the manufacturer zimmer durom acetabular.

The current hip replacement surgery has been happening since the 1970’s, which is why it may seem so ordinary to one. A hip replacement, like those made by Zimmer Durom, typically involve three individual pieces designed to mock how an organic knee joint would. Included is a metal replacement of the femur. A component which allows for movement like the joint naturally would, and either bone cement or screws to hold the contraption in place.

Click here in order to check up on more information about the zimmer hip replacement lawsuit

Hip replacements commonly are in need for revision or further surgerys to correct issues. Many older and even some young and healthy patients just can’t tolerate it, unfortuately. This is primary with the zimmer hip class action. The Zimmer Durom implant was supposed to be durable and was understandably, advocated for younger recipients, whose conditions warranted such surgeries. But more than 10% of these paitents are in need for having repeat surgery in the next 2 years.

If you or someone you know has had a hip replacement surgery in the last several years, ask your doctor if it was a Durom. In the event that it was, whether your hip replacement has failed or not at this point, you can participate in a legal class action. If you are contacted by Zimmer Durom, do not sign their legal release, or you may lose this right.

Occupational Health in Construction Industry Discussed at CBH Event

admin — Thu, 21 May 2009 13:57:18 +0000

The work of CBH (Constructing Better Health), as a non-profit organisation, towards improvement of health of construction workers is highly commendable, especially on the National Scheme for work related health management.

In a recent training program, for construction employers as well as Occupational Health professionals, CBH proposed launching of a new, one of its kind, Construction Health Action Toolkit (CHAT) later this year. In the training program, which was hosted by CBH itself, health issues faced by the construction industry were the highlight of discussions.

The Toolkit is designed to provide a work related health management apparatus, which works on an interactive basis, for the whole range of employees It has been introduced keeping in mind the task faced by employers of assessing and managing the occupational health needs of their employees.

There was also a discussion on application of prescribed health standards and policies as well as the application of management processes to fulfil the needs of the employees. The occasion provided participants a better health risk understanding and a great opportunity for construction employers and OH professionals to interact and present their views on all kinds of health risks.

The distinguished guests of the day, including Wendy Stimson, Director of Occupational Health at CBH and Michelle Aldous, Chief Executive, pointed out that the training days held by CBH are a part of their initiative towards better management of occupational health issues on a national level.

CBH acts as a vital link between the providers of work-related health services and the construction industry, and it has been doing a very good job in improving health standards in the industry.

Avoid unexpected accidents by having staff properly trained by the experts at Workplace Law. Find out more about their well regarded working at height training courses.

Driver Killed After Striking Power Lines

admin — Thu, 05 Mar 2009 12:08:05 +0000

A worker who sustained a massive 11,000-volt shock from a power line when his lorry made contact with overhead electricity lines has subsequently died of his injuries.

The deceased Johnny Davies aged 46 lost his life following a heart attack at the scene, although emergency personal managed to revive him at the time. He was then rushed to hospital where he was treated for the heart attack as well as multiple severe burns to his body. Unfortunately, he eventually succumbed to his injuries after a week in intensive care at Selly Oak hospital Birmingham.

The hospital informed the Health and Safety Executive (HSE) of the man’s demise and subsequently the organisation has stepped up is already ongoing investigation into the incident which occurred in Badsey, near Evesham.

In addition, the South Worcestershire police are working in combination with the HSE and both organisations are preparing a report to submit to the city coroner in order to get to the root cause of Mr. Davies death.

Proper training is always essential for all workers to help them to avoid potentially life-threatening situations. Make sure that your staff and management get the training that they need, find out about the range of IOSH accredite courses, including the iosh directing safely course available from Workplace Law Training.

A Florence Alabama lawyer won from a lawyer in East Lansing Michigan

admin — Thu, 13 Nov 2008 20:45:59 +0000

A lawyer from Hoogeveen won from a lawfirm in Manhattan Kansas The Supreme Court has previously recognized that the employer has the burden to establish the BFOQ affirmative defense. Twenty-eight of those 63 employees sued under the ADEA claiming Knolls illegally fired them because of their age. For example it would not be illegal to consider criteria for a particular role in a movie that has a disparate impact on age if the part calls for someone of a particular age. It has the burden to prove that its decision was based on a reasonable factor other than age. Even if the employment action is otherwise prohibited by the ADEA. At the trial a jury found Knolls had violated the ADEA because its layoff procedure had a disparate impact based on age. Thirty of the 68 salaried employees the company laid off were at least 28 years old. The company had its supervisors rate their subordinates based on their performance flexibility and critical skills. The BFOQ defense states that it is not unlawful for an employer to take adverse employment actions otherwise prohibited by the ADEA where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business. Specifically the jury found that although the plaintiffs did not prove that Knolls intentionally discriminated against them they did prove that Knolls method of deciding who to lay off disproportionately harmed older workers. The Supreme Court then agreed to hear the case and eventually reversed the Second Circuit and reinstated the jurys finding that Knolls policy unlawfully discriminated because of age. In reaching its conclusion that the employer has the burden to prove the reasonable factors other than age defense the Supreme Court looked at another provision of the ADEA the bona fide occupational qualification defense. The United States Court of Appeals for the Second Circuit initially affirmed the jurys findings but after the United States Supreme Court asked it to reconsider the Second Circuit reversed itself and ruled in favor of Knolls. In other words the ADEA permits employers to discriminate based on age considering age is legitimately necessary under the circumstances. As long as the adverse action is based on reasonable factors other than age. Knolls totaled those scores and gave the employees additional points based on their years of service. It then used those totals to decide who to lay off. The Supreme Court ruled that if an employer seeks to rely on that defense. In Meacham Knolls Atomic Power Laboratory was planning to lay off a number of employees. In that case Meacham versus Knolls Atomic Power Laboratory the Supreme Court interpreted a provision of the ADEA that permits an employer to take an adverse employment action against an employee.

Costs: The Ignored Remedy

admin — Tue, 08 Jul 2008 01:43:11 +0000

Costs: The Ignored Remedy

When Canadian taxpayers are charged with criminal offences such as evasion: 239(1)(d); or false reporting: 239(1)(a) under the Income Tax Act (“ITA”); they need skilled legal defence counsel to defend them and protect their interests.

While the process is unquestionably traumatic for anyone charged, it is even more so, if the taxpayer happens to be innocent.

The Canadian Charter of Rights and Freedoms guarantees that, “11. Any person charged with an offence has the right… d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.“

Having a right, however, is not the same as exercising that right. Unless, and until, a taxpayer fights for their rights the presumption of innocence will do them little good; the proverb that “he who fails to plan, plans to fail” has never been truer than in criminal litigation.

While exoneration will be a welcome result for any accused, that result will prove insufficient compensation for enduring such a horrific experience.

An innocent taxpayer charged with such offences potentially can recover more, if they structure their affairs properly.

By being able to prove innocence, from the outset, with objective independent evidence provides an accused with a means to potentially recover some part of their economic expenditures – once the charges are dismissed.

Possible Remedies

There are two (2) remedies, which ordinarily can result from unjust criminal charges: a lawsuit against the Crown for the tort of malicious prosecution and an award of costs (e.g., under 24(1) of the Charter).

Malicious Prosecution

Irrespective of whether an acquitted accused may have such a claim, any detailed examination of this topic is beyond the scope of this article. Suffice it to say that such lawsuits are expensive, lengthy and difficult to win.

Although the Crown is not entirely immune from such legal proceedings, the cases in which a plaintiff will be able to meet all four criteria necessary to succeed, will be rare: Nelles v. Ontario, [1989] 2 S.C.R. 170 Lamer, J. and Proulx v. Quebec (Attorney General), [2001] 3 S.C.R. 9 per Iacobucci and Binnie, JJ.

Costs – Civil Cases

Typically costs are awarded by civil courts to a successful party. Costs awards can cover both legal fees and various out-of-pocket expenses.

What percentage of a successful litigant’s expenses are recoverable will be discretionary with the court; depending on a number of factors unique to each case. Orders for costs can range from zero to one hundred percent (100%).

A particular award will usually cover only a portion of legal fees paid by the successful party and a percentage their out-of-pocket expenses.

In civil matters costs normally follow the cause; that is, a successful party will get some of their costs back from the other party, or parties.

An award of two-thirds of the actual amounts expended is routine, but if unsuccessful party’s conduct warrants it, a higher percentage of recover may be ordered by the judge.

Costs – Criminal Cases

In the majority of criminal cases resulting in an acquittal the accused will not be entitled to costs: R. v. M. (C.A.), [1996] 1 S.C.R. 500, Lamer, C.J. at 97 quoting Berry v. British Transport Commission, [1962] 1 Q.B. 306 (Eng. C.A.), at p. 326, per Devlin L.C.J.

The court does have discretionary authority to grant a request for costs, in appropriate circumstances: R. v. M. (C.A.), supra at 97; both in summary conviction cases: R. v. Trask, [1987] 2 S.C.R. 304 (costs denied); and in indictable cases: Olan v. The Queen, [1978] 2 S.C.R. 1175 (costs allowed).

The Standard

For a court to exercise its discretionary authority in favour of the applicant (i.e., an accused making the request) there must be a finding of “oppressive or improper conduct” against the Crown, something that makes the case remarkable: Trask, supra per McIntyre, J. at 7.

This remains true even if the Crown withdraws the charges, provided there exists “abuse or some other flagrant impropriety on the part of the Crown…“: R. v. Fach, Docket C41070, 2004-11-12 (Ont. C.A.)

Absent a finding, in fact or law, of such abuse by the Crown costs will be denied: R. v. Morton, Docket C41069, 2004-11-12 (Ont. C.A.)

It will be up the court to determine whether, in all of the circumstances, there is anything ‘remarkable‘ about the defendant’s case, or if there is any ‘oppressive or improper conduct‘ by the Crown to justify an award of costs: Trask, supra at pp. 307-8.

Awards Have Been Made

An award of costs was made against the Crown [Canada Revenue Agency ("CRA")] by the Ontario Court, General Division in R. v. Saplys [1999] O.J. No. 393. In granting a stay of proceedings, under 24(1) of the Charter, the court held that CRA’s investigation was so unfair as to contravene fundamental notions of justice. To allow it to proceed would undermine the integrity of the justice system and compromised the accused’s right to a fair trial.

In another unreported case in the Superior Court of Justice (Ontario), the judge gave an order under 24(2) of the Charter excluding evidence, plus an award of C$160,000.00 for costs. CRA has appealed.

What About Other Cases?

This is where the planning comes in.

Since the accused knows, as CRA evidently does not, that they are innocent, they should plan from the outset to establishing a track record.

Defence counsel should write to CRA, the Crown Attorney and the Department of Justice, advising them that the facts do not support a conviction. Telling the Crown that when an acquittal is entered, that the defence will be making an application for costs is key.

Defence counsel must be specific and back up their claims with credible objective evidence to support their contention that a conviction cannot be entered (e.g., the taxpayer acted on legal advice).

By keeping a record of all the letters written, and how they were received or acknowledged, counsel will have a log of opportunities that the Crown had to reconsider its case.

According to the Department of Justice’s (“DOJ”) policies (found in their Federal Prosecution Service Deskbook), “Crown counsel [have an] obligation to ensure the integrity of the prosecution continues throughout the litigation process” (9.3 3, ll. 7 – 9). In other words, there is a positive duty on the Crown to investigate defence allegations which undermine the integrity of the prosecution: R. v. Ahluwalia (2000), 149 C.C.C. (3d) 193 (Ont. C.A.)

Thus, if the defence counsel can establish that the Crown breached its duty to inquire, or investigate – when faced with exculpatory evidence of a probative character – then this greatly improves the prospect for recovering costs upon dismissal of the charge(s).

When the day comes that the charges are to be dismissed, defence counsel can make an application for costs, supported by the various copies of the correspondence to CRA and the Crown.

With evidence that the Crown knew, or ought to have known (from the correspondence given and the evidence provided) that a conviction couldn’t be entered against the accused, they may be able to establish non-compliance with the DOJ’s Deskbook.

If the Crown’s prosecution violated DOJ policy, then arguable it was “oppressive” or an “abuse or some other flagrant impropriety on the part of the Crown.” If the presiding justice is persuaded by the evidence presented, then they than may make an award for costs.

Most acquittals will not merit an award of costs, but for those rare cases where serious Crown misconduct is present and demonstrable, defence counsel will recommend that their clients to make an application for costs.

Staff Writer
For Tax Evasion Resources
http://www.taxevasionresources.com