artificial tears lawsuit

Eye Infection from Artificial Tears? Call Clear Counsel Law Group Today

Eye Infection from Artificial Tears? Call Clear Counsel Law Group Today

Protect your rights today.

The Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA) are currently investigating a multistate outbreak of a drug-resistant strain of Pseudomonas aeruginosa (VIM-GES-CRPA) linked to artificial tears. If you have suffered an eye infection from artificial tears, you may be entitled to compensation. Clear Counsel Law Group is here to assist you with your legal needs during this challenging time.

A woman uses artificial tears which may cause infection

Common Symptoms and Potential Complications of Artificial Tears Infections

According to the CDC, patients who have used EzriCare or Delsam Pharma’s Artificial Tears and who are experiencing symptoms of an eye infection should seek medical care immediately. The CDC suggests that symptoms of an eye infection may include:

  • Yellow, green, or clear discharge from the eye
  • Eye pain or discomfort
  • Redness of the eye or eyelid
  • Feeling of something in your eye (foreign body sensation)
  • Increased sensitivity to light
  • Blurry vision

As of March 14, 2023, there have been 68 reported cases of VIM-GES-CRPA in 16 states. The outbreak has led to one death, eight reports of vision loss, and four reports of enucleation (surgical removal of the eyeball). The CDC and FDA recommend stopping the use of EzriCare or Delsam Pharma’s Artificial Tears pending further guidance.

Potential Damages from an Eye Infection for Which You Might Get Compensation

If you have suffered an eye infection due to the use of artificial tears, you may be entitled to compensation for the following damages:

  1. Medical Expenses: These can include costs for doctor visits, hospital stays, diagnostic tests, medications, and any future medical expenses related to the eye infection.
  2. Pain and Suffering: This can include compensation for physical pain and emotional distress resulting from the eye infection.
  3. Lost Wages: If you missed work due to your eye infection, you may be entitled to compensation for lost income.
  4. Loss of Enjoyment of Life: This covers the impact of the eye infection on your overall quality of life and your ability to participate in activities you once enjoyed.
  5. Punitive Damages: In some cases, the manufacturer or distributor of the artificial tears may be found liable for negligence, and punitive damages may be awarded to punish the responsible party and deter similar conduct in the future.
An eye doctor examines a patient with an eye infected after artificial tear use

How an Injury Lawyer Can Help You with an Artificial Tears Lawsuit

If you have been affected by an eye infection from artificial tears, it's essential to have a knowledgeable personal injury lawyer on your side. Clear Counsel Law Group can provide the following assistance:

  • Investigating the case: Your lawyer will investigate the circumstances of your injury, including the brand of artificial tears you used and the medical treatment you received. They may work with medical experts to establish a link between your injury and the product.
  • Filing a lawsuit: Your lawyer will file a lawsuit on your behalf and represent you in court. They will argue your case and negotiate with the other party to seek a fair settlement.
  • Calculating damages: Your lawyer will help you calculate the damages you may be entitled to and present evidence to support your claim. They will work to ensure that you receive the compensation you deserve.
  • Providing support and guidance: Going through a personal injury lawsuit can be stressful and overwhelming. Your lawyer will provide support and guidance throughout the process, helping you understand your rights and options and answering any questions you may have.


Artificial tears are a common remedy for dry eyes and other eye conditions, but recent reports suggest that they may pose a risk of infection. If you have suffered an eye infection after using artificial tears, seek medical help and call Clear Counsel Law Group right away to protect your legal rights. (702) 476-5900

wrongful death in nevada

Wrongful Death Lawsuits in Las Vegas, Nevada

The impact of having a loved one die before their time is devastating. The knowledge that their death occurred because of someone’s negligence makes it even more difficult to deal with the unexpected tragedy. States differ in how residents can make a wrongful death claim and what dictates when someone else was negligently responsible. In Nevada, anyone who feels that they have a valid claim should contact a personal injury attorney to learn their options for getting compensation.

The Free Dictionary defines wrongful death as the taking of a life due to another person’s willful or negligent act by one or more persons. When a person’s death occurs under these circumstances, the beneficiaries who relied on the victim’s income to support them can file a claim to get compensation. The limits of compensation and the determination of who is allowed to file a claim are determined by the state.

When someone is charged with the crime of murder and found innocent, it does not mean that they cannot be found guilty of wrongful death. As mentioned in an article in the LA Times, there are numerous celebrity cases where the individual has been found innocent of criminal charges only to be found liable for a person’s death in a civil case. One of the most familiar stories is that of O.J. Simpson in connection with the murder of Nicole Brown Simpson and Ronald Lyle Goldman.

The Goal of Most Wrongful Death Lawsuits

Although many families would prefer to get just for their loved ones through criminal charges when the situation calls for it, the goal of most wrongful death lawsuits is to get compensation that is fair and just. The claim must be filed in court by a person who is allowed by the state of Nevada to legally represent the victim. Different circumstances can result in a person’s death. Those that are most common are:

  • Car Accidents
  • Premises Liability (often called "slip and fall" or "trip and fall")
  • Medical Malpractice
  • Negligence of Any Kind

Once the representative of the victim wins the lawsuit, the offender is required to pay compensation if they are found guilty. The three types of compensation that they can receive are economic compensation, non-economic compensation and punitive damage. Economic compensation refers to the money acquired for medical expenses that the victim incurred prior to their death. They can also go towards the burial and funeral costs, lost wages, and property damage.

Non-economic compensation is for the psychological impact of the death on the family. These include pain and suffering, depression and grief, and loss of companionship. Although most people understand that financial compensation will not reduce the emotional impact of the loss, economic compensation will help reduce the financial burden the death has had on the family. Punitive damages can also be used to punish the person for causing the injury.

A good personal injury lawyer in Las Vegas, NV can help you determine whether you have a valid wrongful death case and how you will need to go about pursuing it.

common motorcycle injuries

Common Motorcycle Injuries

Anybody who rides knows that careless drivers can cause a crash in an instant. But what are the most common motorcycle injuries? Is a motorcycle crash always going to cause severe injuries, or is there hope for a less intense "ride?" Here are the most common types of motorcycle injuries.

Head Injuries

common biker injuriesThe sad truth is that head injuries are the most common motorcycle injury. This is because so many riders choose to go without a helmet. There is some good news, however, which is that the National Highway Safety Center for Statistics estimates that thousands of riders' lives were saved thanks to wearing a helmet. Like most states, Nevada has a motorcycle helmet law which requires helmets to be worn not just by riders, but by all passengers on a motorcycle.

As a side-note: if you were in a motorcycle crash and didn't have a helmet, it doesn't automatically mean you're responsible for any head injuries. Don't trust anybody who says otherwise. Talk to one of our motorcycle injury lawyers for REAL legal advice on this important subject.

Road Rash

Spend any time with riders, either in person or online, and you'll quickly hear about road rash. Everybody knows that head injuries are serious and could affect you for your entire life. However, most non-motorcycle riders don't know that the same is true with road rash. It's far more than just a little scrape.

Road rash can be severe enough to cause infection, nerve damage, and permanent scars across wide areas of the body. In extreme cases, sliding across the road during an accident can literally peel the skin off of an entire limb - a horrifying trauma called "degloving."

Muscle Damage

Muscle damage ranks high on the list not only because of damage your soft tissues may incur during an accident, but because repetitive use of certain muscles can cause injury for those who ride frequently.

But during a motorcycle crash, your muscles are exposed to damage and injury. It can happen during the impact, if you fall a certain way, if you get pinned under something, or in any one of a thousand other ways.

In some cases, muscle damage can be treated by specialized doctors. Full use of the damaged tissues can be restored given enough time and treatment. However in many cases the damage can cause lifetime problems.

Biker's Arm

Biker's arm is the term used to describe what happens to the arm when it's used to break a fall. You probably know what we're talking about: You feel yourself falling or tipping over, and you very naturally want to break your fall by putting up your arms to protect your head.

During a motorcycle crash, motorcyclists will have that same instinct, even if there's no way that your hands could possibly protect you. It's just human instinct - built into us. So what happens? The rider finds himself flying through the air and raises his arms to protect himself from the impact. The end result is torn ligaments, broken bones, and damaged nerves.

Broken Legs

The legs of a motorcycle rider are exposed in ways that automobile drivers' legs are not. This means damaged and broken legs happen far more often to riders during a motorcycle accident. A severe leg injury can snap bones which themselves cut into muscle, veins, and nerves. It is not uncommon for a rider with leg damage to be unable to ride ever again due to long-term complications related to a leg injury.

While protective gear may help mitigate some of the minor injuries legs commonly get - such as road rash - there's really no good way to prevent legs from breaking. Don't ever believe somebody who says it's your own fault.

Your Injuries Are Not Your Fault.

When a crash occurs the insurance companies will try and get out of paying what they should by saying things like "you chose to ride a motorcycle - you assumed the higher risk." or "You didn't wear your protective gear that day." or "you could have done something to make your injuries less." This is nonsense. DO. NOT. LISTEN. TO. THEM.

You have the absolute right to safety and security on the roads. When another person violates those rights, it is NOT your fault that injuries occurred to you.

Our motorcycle crash lawyers will take a stand for your legal rights. Do not agree with the insurance companies. Do not say yes to them. You let us handle them and make it clear that they must keep their legal promises to you.

If you've been hurt in a motorcycle crash, call us NOW. (702)-522-0696

Salmonella Law Suit

Filing a Lawsuit for Salmonella Infection.

Hearing a friend got “food poisoning” is always sad, but an infection with salmonella is no laughing matter. Salmonella infections can cause severe health issues and even cause death. You should never feel reluctant to file a lawsuit for salmonella infection. Salmonella infections contracted at a restaurant or from a commercial food product are almost always due to the negligence of those preparing, harvesting, or transporting the food. In other words, you could have been saved from salmonella if they had only taken reasonable precautions to keep you safe.

How do I file a lawsuit for salmonella infection?

This is the kind of thing you really should use an attorney for.  Yes, it's possible to go it alone, however our experience tells us that the insurance companies don't take people seriously until they've got a lawyer. So what's the first step?

  1. Talk with an attorney. Our experienced personal injury attorneys can tell you if you have a viable case, and what to expect if you go forward. There's a lot of factors that must be considered before setting out on the challenging path of fighting the insurance companies. Our knowledge becomes your power, as we can tell you what to expect, what we've seen, and more. Talking with one of our attorneys or case managers is free, and we don't charge you anything unless we win.
  2. Continue treatment. Don't stop your medical treatment for your salmonella infection till you're 100% better. Do you need help finding a specialist? We can help. These medical records will be pivotal in getting you the compensation you deserve for your injuries.
  3. Never give up. We will be with you every step of the way.

In this article, we will examine some of the issues that can arise from a salmonella infection, and the reasons you may want to consider filing a lawsuit for salmonella infection.

What is salmonella food poisoning?

Salmonella is a bacteria that causes one of the most common intestinal infections in the USA. Of those infections, MOST of them come from commercial food – restaurants, commercially harvested vegetables, supermarkets, etc. The majority of salmonella food poisonings are not induced by home meal preparation.

The worst part about salmonella infections is that they can be much MUCH worse than a typical “Food poisoning.”

What happens when salmonella infections get worse?

Salmonella infections can lead to terrible complications, from blood infections to irritable-bowel syndrome, to kidney failure and even death. Infants and immune-compromised people are especially at risk of salmonella causing a worse infection or invasive disease. You should always seek medical treatment, and, when it’s clear the infection was caused by a restaurant, grocery store, or other commercial enterprise, you should file a lawsuit for salmonella infection.

Worst case scenarios of salmonella complications include:

salmonella infectionBlood infection – Bacteria manage to infect the bloodstream. This is considered a life-threatening problem. The blood carries the infection throughout your body.

Reactive arthritis – reactive arthritis can be caused when salmonella causes a secondary infection which causes the joints to become inflamed, even though the infection is located in a totally different part of your body. Remember, an inexperienced doctor might dismiss joint pains as unrelated to your salmonella infection. A good salmonella infection lawyer can help you get access to the specialists who can recognize and diagnose reactive arthritis properly. This inflammation can occur weeks after the infection and last for months or even years.

Typhoid fever – the life threatening disease typhoid fever is a form of salmonella poisoning. These infections can cause kidney failure which can severely shorten a lifespan.

Kidney failure – Salmonella can lead to kidney failure in many ways, from accumulation of toxins in the kidneys to damage by proteins that the infection has damaged. Nobody facing “food poisoning” thinks it could end up leading to a life of dialysis, but it has happened.

Organ failure – invasive salmonella can spread throughout the body and attack your internal organs. In some cases this leads to death.
Nobody who goes out to eat deserves a lifetime of kidney treatments. Nobody picking up a salad at the grocery store should have to endure years of severe joint pain. If you’ve had complications due to a salmonella infection, you should file a lawsuit.

Why use an attorney on your salmonella lawsuit?

Consider this: Before you were infected, did you know that salmonella could lead to years of severe joint pain? Did you know a side effect of salmonella infection was kidney failure? If you’re like most of us, you probably didn’t even know these things. The insurance companies covering the restaurants and the grocery stores are counting on you not knowing anything.

You need an attorney with experience in salmonella lawsuits. We know how to find the specialists who can get you the right diagnoses, and who can testify in court that your pain and suffering is very real and deserves fair compensation.

If you’ve been infected by salmonella, give us a call. We can have a frank discussion about your rights and if you should file a lawsuit for salmonella infection.

Personal Injury Lawyers can Help

How Does A Personal Injury Attorney Help?

how does a personal injury attorney helpOne of the most stressful situations you are likely to face in life is an injury. When you are injured -- especially if it is the fault of another -- it can be challenging to deal with the financial, physical, and emotional ramifications. A personal injury lawyer can help.

In order to help you get through this difficult time, it can make sense to hire a personal injury attorney. A personal injury lawyer can help you manage the situation, and ensure that you are treated as fairly as possible.

Injury Lawyers Help Deal with the Insurance Company

A personal injury attorney can be quite helpful when dealing with an insurance company. Logically, you would think that the insurance company’s “job” would be to make sure that you are properly compensated in terms of missed wages and medical bills, as well as other deserved compensation.

The reality, though, is that an insurance company is a business. The insurer isn’t working for your best interests; it’s about shareholder interest and the bottom line. This means that you may not be offered a fair settlement from the insurance company. When you are represented by a personal injury attorney, though, you know that someone who has your best interest in mind is speaking for you.

Insurers know that you are serious when you are represented by a personal injury lawyer. You are more likely to get a fair settlement, and the insurer is less likely to drag its feet, when you have a competent lawyer on your side.

 Injury Lawyers Can Give You An Idea of What’s Fair

One of the most difficult aspects of dealing with the aftermath of an injury is the fact that you might not even know what’s fair for your circumstance. Is compensation for pain and suffering customary? Will you be compensated for physical therapy? How long will you likely miss work, and how will your wages be accounted for?

If you don’t understand these procedures, and if you don’t know what paperwork to file, you might not get everything you deserve. A personal injury attorney can help you understand what is usual for your situation. These attorneys practice in injuries, and have seen the results of settlements and lawsuits. You can get an idea of what to expect.

Additionally, your personal injury lawyer can help make sure that all the paperwork is properly filed, and that you meet the necessary deadlines. You might experience delays (or even worse -- rejection) if you don’t file everything properly, or fill out your forms just right. It can be a confusing time, and an experienced attorney can help you navigate the choppy waters.

 Injury Attorneys Focus on the Case, so You Can Focus on Your Recovery

When you are injured, the last thing you want to do is fight with insurance companies and try to remember to file all of the necessary paperwork. Instead, you want to devote your energy to recovering from your injury. Your personal injury attorney can help you by dividing up the workload. You don’t have to worry about as much when you have someone representing your interests.

Focus on your recovery and rehabilitation, instead of worrying about the situation. Your attorney can handle most of the paperwork, and work with the insurance company to ensure that you receive fair compensation.

When you are injured, one of the first things you should do is call a knowledgeable and trustworthy personal injury attorney. A good lawyer knows the ins and outs, and can ensure that you receive the care that you deserve as you recover from an injury.

photos after car accident

What to Photograph After an Auto Accident

In auto accident cases, seeing is definitely believing. Often, one picture can do more good or harm to a case than hours and hours of witness testimony. This is also true when negotiating with insurance adjusters. The more photographic evidence of car damage and bodily injury they receive, the more likely they are to offer higher amounts of money to settle your case. With the prevalence of smart phones and camera phones, there is no excuse for not taking photographs to document your auto accident. If you are ever in an accident, you should immediately take photographs of three things.

Photograph the Car That Hit You.

First, you should take photographs of the car that hit you. This should always be done FIRST because you never know how long the other driver will remain at the scene. It might feel a little awkward taking photographs of someone else's car, but it is very important. If the other driver protests, tell him or her that your insurance company has instructed you to take pictures of the scene. Often, this will be your only chance to document the damage to the other car. The other driver's insurance will not allow you or your attorney to view any of its own photos until after a lawsuit is filed. This is because in a rear-end accident, the front of the rear car almost always shows more damage than the rear of the front car. The front of a car has more things that can be broken (grill, lights, etc.) than the back of a car, which is usually just a solid plastic bumper. In addition, when the other driver's insurance company does take pictures of the damage, they will usually have the car cleaned to remove any dirt streaks that may make the damage look worse. They will also take pictures from angles that minimize how bad the damage looks. Thus, you must protect your case by immediately taking pictures of the other driver's car.

Photograph The Damage to Your Car.

Second, you should take pictures of the damage to your car. If possible (and not dangerous), do this at the scene. When you take the photos at the scene, this removes any argument from the other driver's insurance company that you may have tampered with your car before taking the photos. The other driver's insurance company will eventually schedule an "estimate". This is their opportunity to assess the damage to your car before offering to make any repairs. At the time of the estimate, the representative for the other insurance
company will take multiple pictures. Again, these pictures will be taken from angles that minimize the damage that is shown. In fact, some estimators have been known to carry towels and other cleaning supplies with them so they can try to buff out as many scratches and streaks as possible before taking photos. If you have taken photos of your car at the scene, these photos will help show a jury that the insurance company is trying to trick them into believing there was less damage to your car than there actually was. Your photos will have more credibility because they were taken much more closely in time to the accident than whatever photos the other driver's insurance company may take.

Take Photos of Your Injuries

Third, you should take photos of any injuries to your body. Visual representations of injuries are much more powerful than simple descriptions. If you notice any bruising or scratches caused by your accident, you should photograph them immediately. Often when we are negotiating with insurance adjusters we will push them to their highest offer and then send them a client's injury photographs. This automatically triggers an increase in the amount of money (called "reserves" or "authority") that the adjuster can offer. The insurance company never wants a jury to see injury photos because they prove that the impact of the accident was definitely strong enough to cause injury.

If you are ever in an auto accident, make the simple effort to photograph these three things as soon as possible. Doing so will often increase the amount of money you are awarded at the end of your case.

Nevada's Loyalty Pledge Law Regarding the Electoral College Violates the Constitution

"If one of them refuses to do it, they will be dismissed and we’ll bring in an alternate...I know there’s been talk about that in other states but that will not happen here."

-Nevada Secretary of State elections deputy Wayne Thorley

What if I was to tell you the electoral college..isn't a college at all?1)Sorry

Worse, this ragtag group of federal officials still don't even have office space, after all this time.

Finally, though, the electoral college has made its way to the national consciousness2)and here i thought my "Opaque election rules and procedures" club would get off to a much faster start. I'll talk to the marketing guy.., so I thought it'd be fun to talk about what the electoral college is, what they will be doing next Monday, and most importantly, examine if laws that command a federal electoral vote a particular way are constitutional.

Luckily, our elected officials gave us some great material to work with.

"Haven't I Voted Twice This Year Already?"

Well, if you start in February, a few. One more, I promise. And this time you don't even need to participate. Your job as engage citizen voter is completed for this year.

In November, you didn't vote for president, but for electors that will vote for president this coming Monday, 19 December. The following six people were elected from Nevada:

  • Dayananda Prabhu Rachakonda (The only one from Las Vegas. Will the Tyranny of the North know no bounds??)
  • Larry Jackson
  • Joetta Brown
  • Paul Catha II
  • Greg Gardella
  • Teresa Benitez-Thompson

On Monday, these 6 federal electors will convene in Carson City because the electors do not meet in one place, but at all the state capitols. This has been in effect since 1948.

In all previous elections the electors voted the same way as the people who elected them, and given that Nevada voted for Hillary Clinton, it is fair to assume that all six will vote for Hillary too.

But do they have to?

For the first time in my lifetime (likely yours too), there is serious talk of if the electoral college voters may express a different preference than that of the voters. (Vote for someone else)

Today I am not asking should the electors vote their faith, only if they can.

Now, I try not to be too tough in this forum3)This does function as marketing material as well, as I'm sure you are aware, but the Secretary of State elections deputy Wayne Thorley put out quite the statement in the press regarding this subject:

Secretary of State elections deputy Wayne Thorley said both major parties submitted the names of their six electors, one for each Nevada member of the House and U.S. Senate, well before the election.

He said since Hillary Clinton won the popular vote in Nevada, it will be the Democratic list who meets and votes that date. Rather than all 535 Electoral College electors going to Washington D.C. for that vote, they meet in each state capitol so that vote will take place in the capitol as well.

He said under Nevada law, they’re required to vote for Clinton and Tim Kaine.

“If one of them refuses to do it, they will be dismissed and we’ll bring in an alternate,” he said. “I know there’s been talk about that in other states but that will not happen here.”

Wait wut?

"We'll bring in an alternative" is quite the loaded statement.

Some potential questions consider:

Who is the "we" he is referring to? Does the Elections office have its own enforcement arm? Since when?

What do you mean by "bring"? Is that a physical threat against a federal official?

Who is the alternative? Which alternative is selected first? What behavior needs to be exhibited to trigger this threat?

(I can keep going.)

Most importantly, the assertion that Nevada's electors have to vote for Clinton/Kaine is unconstitutional and false. (And disappointing as a Nevada citizen to see an elected official make).

Let's not get mad at Wayne though, he's not the only elected official in Nevada that does not understand this. Our legislature actually put one of these silly loyalty pledge4)What year is it? laws on our books in 2013:

NRS 298.065  Meeting of presidential electors; nominees whose candidates receive highest number of votes become presidential electors; procedures for filling vacancies; pledge of presidential electors selected at meeting.

      1.  The Secretary of State shall preside at the meeting of presidential electors held pursuant to 3 U.S.C. § 7. Except as otherwise provided in this section and NRS 298.075, the nominees for presidential elector whose candidates for President and Vice President receive the highest number of votes in this State at the general election are the presidential electors.

      2.  If a nominee for presidential elector is not present to vote at the meeting, the position of presidential elector to be filled by that nominee for presidential elector is vacant and the vacancy must be filled as follows:

      (a) If the alternate is present at the meeting, the Secretary of State shall appoint the alternate to the position of presidential elector;

      (b) If the alternate is not present at the meeting, the Secretary of State shall appoint to the position of presidential elector a person chosen by lot from among the alternates present at the meeting, if any;

      (c) If no alternates are present at the meeting, the Secretary of State shall appoint to the position of presidential elector a person who is:

             (1) A qualified elector;

             (2) Present at the meeting; and

             (3) Chosen through nomination by and plurality vote of presidential electors who are present at the meeting; and

      (d) If votes cast pursuant to subparagraph (3) of paragraph (c) result in a tie, the Secretary of State shall appoint to the position of presidential elector a person who is chosen by lot from those persons who tied for the most votes.

      3.  If all the positions of presidential elector are vacant and no alternates are present at the meeting, the Secretary of State shall appoint from the qualified electors one person to the position of presidential elector, and the remaining positions must be filled pursuant to paragraphs (c) and (d) of subsection 2.

      4.  The nomination by and vote of a single presidential elector is sufficient to choose a person to be appointed to the position of presidential elector pursuant to subparagraph (3) of paragraph (c) of subsection 2.

      5.  Except as otherwise provided in subsection 6, a person appointed to the position of presidential elector pursuant to this section may not serve in that position unless the person signs a pledge in substantially the following form:


I agree to serve as a presidential elector and to vote only for the nominees for President and Vice President of the party or the independent candidates who received the highest number of votes in this State at the general election.


      6.  If a person appointed to the position of presidential elector pursuant to this section is physically unable to sign the pledge, the pledge may be signed by proxy.

      7.  If a person appointed to a position of presidential elector pursuant to this section does not sign the pledge described in subsection 5, that position of presidential elector is vacant and must be filled pursuant to this section.

      (Added to NRS by 2013, 1231)

      NRS 298.075  Voting for President and Vice President; procedures when presidential elector acts contrary to pledge; recording of votes.

      1.  The Secretary of State shall provide to each presidential elector a ballot for the office of President and a ballot for the office of Vice President. The presidential elector shall mark the applicable ballot provided by the Secretary of State for the person who received the highest number of votes at the general election for the office of President and the person who received the highest number of votes at the general election for the office of Vice President. The presidential elector shall sign and legibly print his or her name on the ballots and present the ballots to the Secretary of State.

      2.  After all presidential electors have presented their ballots to the Secretary of State, the Secretary of State shall examine each ballot. If a presidential elector:

      (a) Presents both ballots and the ballots are marked with votes for the person who received the highest number of votes at the general election for the office of President and the person who received the highest number of votes at the general election for the office of Vice President, respectively, the Secretary of State shall accept both ballots.

      (b) Does not present both ballots, presents an unmarked ballot or presents a ballot marked with a vote that does not conform with the provisions of subsection 1:

             (1) The Secretary of State shall refuse to accept either ballot of the presidential elector; and

             (2) The Secretary of State shall deem the presidential elector’s position vacant. The vacancy must be filled pursuant to the provisions of NRS 298.065. The person appointed to fill the vacancy in the position of presidential elector, after signing the pledge described in NRS 298.065, shall mark both ballots and present both ballots to the Secretary of State pursuant to this section.

      3.  Only the votes accepted by the Secretary of State pursuant to this section may be recorded on the lists of votes made by the presidential electors pursuant to 3 U.S.C. § 9.

      (Added to NRS by 2013, 1232)

Well, at least I admire the chutzpah.

I thought there was consensus among legal professionals of how federalism works, but apparently not.

You have to be wondering before we get into the legal weeds (I know I was), where did this come from/who's idea is this?

(This is the part that doesn't make the legislature look very good).

..It was copied and pasted from a lobbyist organization called Uniform Laws.5)If you unfamiliar with these ALEC-type organizations, I will explain briefly. Very rich folks paid to found the fancy organization with governmental sounding names to write drafts of laws they would like see enacted in the states. Jane Mayer's book on the topic is excellent

The people who do this for a living (shadow-write your state laws) don't think the public is offended by this idea that people would sit in Washington D.C. and write your Nevada laws.6)This has always shocked me. Not only do they keep a public-running tally of the states in which they've succeeded, they even provide a handy map as a visual aid.

Map of the 4 States

Our legislators didn't even have the shame to not openly admit that this law was suggested by a lobbyist; the notes from the 2013 session say explicitly they are adopting this uniform law.7)Please have more shame going forward

Justification for laws often takes place in the Legislative Digest (for example I am writing about the new moped law, and the digest says taxing/regulating mopeds is the the safety of the riders. No, no, not today..). Here is the Digest for the loyalty pledge law. It provides no justification at all. You would think for as something as important as elections..

So why did Nevada, after voting in one manner since 1948, need to update the voting laws in 2013? The best rhetoric you can find is this for-profit argument (as in, he was told was conclusion to have and then justified it accordingly) from this Northwestern Professor8)What's going on at Northwestern? Yikes.

I'm not impressed with what he wrote, especially given the incentive structure; I'll allow you to evaluate it on your own.

My Opinion Regarding the Electoral College is Fairly Common; I Wish I Could Justify Why the Nevada Law Got Put Into Effect

As the last sentence of our loyalty pledge law makes clear ("Only the votes accepted by the Secretary of State pursuant to this section may be recorded on the lists of votes made by the presidential electors pursuant to 3 U.S.C. § 9".), our legislators are at least aware that there is federal law governing the electoral college.

My favorite part of that sentence of our statute, is that if they would check back just one more section they would see that there already is federal law governing the electoral college 3 U.S.C. § 8:

"The electors shall vote for President and Vice President, respectively, in the manner directed by the Constitution."

You know what is literally not "the Constitution"? That's right, the Nevada legislature. Or any other state legislature for that matter.9)Please find me the constitutional provision that allows the states to invalidate electoral college votes.

It's from this same chapter in the federal code that we decide when the electoral college meets:

3 U.S. Code § 7 "The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct."

So what we have here is called a conflict of laws because the state of Nevada claims they can disqualify a elector based on her vote, and the federal law says "the constitution" (and nothing else) governs the electors.

Who wins? The federal law. By the Supremacy Clause of the U.S. Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The laws of the United States are supreme to state laws. We're talking  McCulloch v. Maryland type of certainty here.10)As in, there is consensus

We saw this not too long ago with the GMO labeling laws and Vermont. We discussed how, in response to Vermont's strict GMO-label law, the industry moved to get a federal law passed covering the same topic, making the federal law supreme to that hippie-Vermont GMO bill.11)Oh Vermont, never change..You better believe they carved exemptions for their home industries cheese/syrup

So am I saying that the entire loyalty pledge law in Nevada is unconstitutional? No. The federal congress granted authority to the states to address electoral vacancies:

Each State may, by law, provide for the filling of any vacancies which may occur in its college of electors when such college meets to give its electoral vote. 3 U.S. Code § 4

So if there is a vacancy on Monday (one of the electors is absent), NRS 298 instructs us how the Secretary of State will fill the spot. The law they crafted, although weird seems fine with respect to vacancies.

So the power to resolve vacancies has been delegated to the states by this 1948 federal statute covering the electoral college. Why did it take until 2013 for Nevada electeds to take this option? What changed?

The answer is so incendiary I can't publish it in marketing material like this. There's a reason you can't find a written justification for this law anywhere.

What I will say though, is if this was about "the will of the people" not being met, isn't the obvious solution direct election of the president? (I would support such a measure).

100 years ago we weren't even directly electing our U.S. Senators; we've certainly made some progress.12)I'm listening President Obama; I swear. If the goal is to ensure that the people's will is effectuated through the vote, the best means to do this is not through obscure, likely unconstitutional, statutes. It's also highly inefficient.

Nevada's Loyalty Pledge Law Isn't Seen As Unconstitutional Just By Me

The (nonpartisan) Congressional Research Office exists to provide necessary background to our legislators before voting on complicated issues. From the limited material I've read, their work is excellent. I've never heard a cross word against them (Evan McMullin worked for them explaining foreign policy before he ran for president. Bright people like that work there. You will get to see the person who wrote the proceeding grafs momentarily.). In April (8 months ago) of this year, they published a clear explanation of what the electoral college is and how it got to this place for U.S. members of congress13)This is the office that your representatives rely on for data. It's hard to be more trusted. The man is obviously more conservative14)when I use this word I don't mean anything pejorative than me, yet we've reached the same conclusion:15)The law isn't supposed to be political

Presidential electors in contemporary elections are expected, and, in many cases pledged, to vote for the candidates of the party that nominated them. While there is considerable evidence that the founders intended that they would be independent, weighing the merits of competing presidential candidates, the electors have been regarded as agents of the public will since the first decade under the Constitution. They are expected to vote for the candidates of the party that nominated them. “Faithless” electors provide an occasional exception to that accepted rule.

...Notwithstanding the tradition that electors are bound to vote for the candidates of the party that nominated them, individual electors have sometimes broken their commitment, voting for a different candidate or for candidates other than those to whom they were pledged; they are known as “faithless” or “unfaithful” electors. Although 24 states seek to prohibit faithless electors by a variety of methods, including pledges and the threat of fines or criminal action, most constitutional scholars believe that once electors have been chosen, they remain constitutionally free agents, able to vote for any candidate who meets the requirements for President and Vice President. Faithless electors have been few in number: since 1900, there have been eight, one each in the elections of 1948, 1956, 1960, 1968, 1972, 1976, 1988 and 2004, and one blank ballot cast in 2000. They have never influenced the outcome of a presidential election, however, but their “faithless” votes, or failure to vote, were all duly recorded, and none of these faithless electors was prosecuted for this action. (Emphasis added).

I would like to think that any person with a basic understanding of federalism would conclude the same, but sophism seems to be all the rage.

The National Archives points out that the Supreme Court has "not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution."16)Source That's a fair point. This is undecided law.

Do you really think a federal court is going to enforce a state law that commands a federal official how to vote? Really?

The Secretaries of State throughout the country produced this nice handout where you can see how popular this idea has gotten. Doesn't make it anymore constitutional17)I think the word ends in -hameful.

Mess With the Electoral College at Your Own Risk

Now, if you were an elector and trouble-maker (We know that at least one of the electors is an ran Bernie's operation in Reno, making this a possibility) you might have some potential fun come Monday.

Let's say for example you do not like this loyalty pledge law and want it declared unconstitutional by a federal court. In law, there's a rule called standing which determines what potential plaintiffs are sufficiently connected to a matter enough to sue. It's used to stop too many people from suing when they should not.

It's possible that the only people in Nevada that would have standing to challenge the loyalty pledge law would be one of these electors. And they may only have an opportunity to do so every 4 years.

Only if the elector voted as s/he intended, but then was removed by the Secretary of State (as they are threatening to do in NRS 298.), would said elector have standing and a cause of action to bring a claim.

The Secretary of State's office needs to be prepared for this. Hopefully between now and then, they realize they should not enforce an unconstitutional law, and allow the electors to vote as they choose. (The Congressional Research Office says one of these laws have never been enforced..there must be reason.)

The New York Times recently used our Secretary of State as an example of an elected official using the office to lobby (They have Nevada Energy emails), and I can't be the only person living here waiting for an explanation. All eyes will be directed their way early next week.

The Secretary of State's work Monday is likely the most important they will likely ever do. Here's to hoping they realize that.

If you would like to learn more about the electoral college (or check my work), I invite you to spend a few minutes with Mr. Neale (the Congressional Research Office employee I quoted at length).

If you are unsure if it is proper for an elector to evaluate the candidate for president, just watch the first two minutes.

Thanks for reading.




1 Sorry
2 and here i thought my "Opaque election rules and procedures" club would get off to a much faster start. I'll talk to the marketing guy..
3 This does function as marketing material as well, as I'm sure you are aware
4 What year is it?
5 If you unfamiliar with these ALEC-type organizations, I will explain briefly. Very rich folks paid to found the fancy organization with governmental sounding names to write drafts of laws they would like see enacted in the states. Jane Mayer's book on the topic is excellent
6 This has always shocked me
7 Please have more shame going forward
8 What's going on at Northwestern? Yikes
9 Please find me the constitutional provision that allows the states to invalidate electoral college votes.
10 As in, there is consensus
11 Oh Vermont, never change..You better believe they carved exemptions for their home industries cheese/syrup
12 I'm listening President Obama; I swear.
13 This is the office that your representatives rely on for data. It's hard to be more trusted.
14 when I use this word I don't mean anything pejorative
15 The law isn't supposed to be political
16 Source
17 I think the word ends in -hameful.

ClearCast Episode 7: What Kind of Legal Trouble is Samsung in Over the Note 7 Recall?

[Editor's note]

..Not bad at all.

And Welcome to today's ClearCast!

As always, we appreciate you coming back and all the comments we've received through our social media channels.

Today, we tackle the controversy surrounding Samsung and the defective Note 7 phone.

If you are unfamiliar, more than 92 cases of exploding Samsung phones have been reported in America (with more than another dozen reports worldwide).

Included are a phone causing a car to burst into flames, and a very sad story of a small boy in Brooklyn whose phone blew up in his hands as he was watching a video.

Samsung has issued a recall for the defective phones. Problem solved, yes?

Not exactly..

Thanks for watching


[End note]




Jordan Flake: Hi welcome to ClearCast. I'm attorney Jordan Flake and I'm here with attorney Jared Richards, my esteemed partner and personal injury attorney extraordinaire. The reason we brought Jared on today is because he's going to give us some insight as to a potential, I don't know I guess it would be a potential products liability issue that's going on in the news right now. If you pull out your phone right now there's a chance that you own a Samsung phone, just because it's a highly popular phone here in America. Jared happens to own the Edge, which fortunately for Jared is not the Samsung phone that's been blowing up.

Jared Richards: It's not likely to blow up on me as far as I know.

Jordan Flake: As far as we know.

Jared Richards: I guess we'll only find out in time.

Jordan Flake: Samsung has recently released the very popular Note 7 and it's been blowing up on people. In fact there have been 92 reported cases of these phones blowing up. How do we start to think about this? Jared, if somebody calls you up on their land line because their phone's exploded. They call you on the land line and they say, "Jared, my Note 7 blew up while I was watching a video. It burned both my happens."

Jared Richards: Now and handless.

Jordan Flake: Now I'm handless.

Jared Richards: When it blows up do we know how violent the explosions are?

Jordan Flake: Brian. Can you help us out. Brian's off camera here. He can help us with that.

Brian: It varies from explosion to explosion. Some have been very serious.

Jordan Flake: Some just kind of catch fire.

Brian: Some explode in people hands. One exploded in a guy's pocket. He had a second degree burn on his hand when he tried to take it out of his pocket.

Jared Richards: What's interesting is, as you know I was in the air quite a bit last week. We had business up in Canada and we had business in Iowa. I had to fly out to go handle those. When I boarded the airplane, every airplane that I boarded, except for Frontier so I guess I worry about them a bit, but every other airline as I boarded they gave us the express instruction that if we have a Note 7 that we are not to turn it on, not to use it, not to take it out of the bag, make sure that it is off at all times. This is something that the ... they were saying that was what the FAA was instructing them to say. It's something that's of concern that airlines certainly don't want to have random fliers and explosions on the airplane. As you try to smuggle the Note 7 and you get tackled as a terrorist. Clearly it's a concern if the phone is going to explode.

The way that I think this is going to play out, it's going to depend. Every state handles this a little differently. When a manufacturer produces products that go to every state, you're going to be dealing with generally in the laws of the state that the person got hurt in. Although that might be an interesting analysis that somebody does at some point if they don't like the laws of their state. We have two problems here. We have one, exploding phones. The exploding phone itself makes the product not worthwhile. Nobody wants have an exploding phone and nobody wants to have the risk of having an exploding phone.

Jordan Flake: Although Samsung did point out that the risk was about the same as getting struck by lighting.

Jared Richards: Sure but nobody opts into that situation. Nobody stands on a mountaintop during a thunderstorm with a rusty umbrella saying, "God I dare you." As I was flying trying to turn on my Note 7 and an air Marshall was tackling me I was trying to explain to him ...

Jordan Flake: It's only as likely as getting struck by lightning.

Jared Richards:  We have three potential different types of lawsuits that might go on on something like that. First you have a class action suit. The point of a class action suit is that everybody has the same kind of damages. Whereas some people have been burnt and some people have had other property destroyed, they don't all have the same type of damage. There is one aspect of damage that everybody does have. That is everybody now has a phone that has either exploded or that they're worried about having explode. The cost of the phone itself is a similar damage across the board. Presumably some law firm out there probably already has started a class action suit to try to represent everybody in the United states in the market that has purchased this phone to try to get them a refund for the price of their phone. Quite frankly that could be a huge class action. For the individual person it's not all that valuable, it'll be a few hundred dollars. For the attorney's that take a percentage of the total amount it's going to be a significant amount.

Then we have two other types of injuries. We have injuries to person and injuries to property. There are two different theories of liabilities that are going to be popular here. The first theory is that of strict products liability. Strict product's liability is only going to deal with the malfunctions that actually hurt a human. Strict product liability, probably if you need to replace your pants that got burnt or on the case that Brian was telling us about where a car was burnt down or if you're an airline owner and somebody smuggles in the Note 7 and blows up your plane with it that really isn't a strict products liability because we're dealing with property damage.

As far as damage to people go, what we look at and different states do different things. The majority of states still follow what we call the consumer expectation test. The consumer expectation test just simply asks the question when you buy a phone and it blows up on you were you expecting it? This area of law actually is really complex and there's a lot of law and a lot of judgement and case law that we can use on this and different tests that we use. The very basic test is that of consumer expectation. If the phone is more dangerous than a consumer would normally expect then it's a dangerous product and the company is going to be strictly liable ...

Jordan Flake: For the damage to the person.

Jared Richards: For the damage to the person under that idea that the manufacturer is really the common factor and it doesn't' even matter, let's say that to make the phone explode you have to turn around three times and spit over your left shoulder and that's the only way you make it explode. You say, 'Well people shouldn't be turning around three times and spitting over their left shoulder. That person was negligent." In strict product liability we don't even care about the negligence of the user. We look at what the manufacturer did.

Jordan Flake: Right so if you left your phone ... let's say the common denominator is everybody had left their phone in a hot car immediately prior to picking it up and putting it in their pocket.

Jared Richards: You say, 'Well why did you do that? That was stupid?"

Jordan Flake: Right you shouldn't leave that in a hot car.

Jared Richards: Under a normal analysis you would look at the total damage. Let's say the total damage was $100 to the person. It's going to be more than that but $100 is a nice even number. You'll say, "Okay well we're going to put 20% on the user because they shouldn't have left it in the car. We'll put 80% on the manufacturer, manufacturer you have to pay 80%." Under strict product liability we don't care what the user did. We put it all on the manufacturer and the manufacturer is going to be liable for the damage they've done.

Jordan Flake: As a policy consideration of we want the big and powerful product manufacturers in our country, such as Samsung, to make safe product.

Jared Richards: To make safe products. Now other states are going to use other tasks, not so much consumer expectation, that was there a safer design? The answer is, I don't know my phone hasn't blown up on me. I'm sure that there's a safer design out there, one that doesn't blow up.

Jordan Flake: Should I just stop carrying my phone. I carry my phone in my front pocket. Could I carry it somewhere else?

Jared Richards:  You're not going to be carrying it ... I was thinking maybe you have a special case to make it so it doesn't ... it's like a firecracker. What happens when you put your hand around a firecracker? Big explosion. You have to be careful. As far a damage to property we use a different theory of law, it's called a product warranty. It's just simply saying there was an implied contract that they were going to give you something that wasn't going to blow up. They breached that contract so now they're responsible for the property damage they caused.

Jordan Flake: Let me ask you a question. Let's say the judge looks into this and they find out that Samsung was like, "Oh man these phones blow up but you know what? We have to rush this out there because iPhone 7 is being put on the market too."

Jared Richards: That's when things get really interesting.

Jordan Flake: Does that come in under the class action side? Now we'd be talking about punitive damages right? Does that come in under the class action side or the personal side or possibly both?

Jared Richards:  Both. What's going to happen is if Samsung actually knew that their product was dangerous before they shipped it out.

Jordan Flake: Yeah Samsung. They probably didn't know which just my guess is.

Jared Richards:  We have no idea. Samsung, please don't sue us we have no idea.

Jordan Flake:      Don't send your people out to us because we don't think you were witting there like, "Oh one in every hundred blows up."

Jared Richards:  You're giving that, I'm just saying I have no idea. I'm not implying they did, I'm not implying they didn't. I have no basis upon which to form an opinion. I'm not forming an opinion. Let's say there's a magic document, the damning email, the magic bullet that you have one of the designers sent a memo over to a vice president that said, "Warning, we're not so sure about this." The vice president got the memo and it went out anyway. Then we're talking about punitive damages and punitive damages are going to apply at all the different levels.

Jordan Flake: All the way, everywhere.

Jared Richards: Well every case the judge makes the determination of whether punitive damages are appropriate in this case. In the class action where everybody has lost, I mean what is the Note it's like $800? Everybody's lost an expensive $800 device either because it's blown up or because it's not worthy, fit, safe to keep in your pocket so they have to get a new phone. I don't know, did they sell a million of these? I don't know how many they sold. You look at the judge and say, "Your honor, they've caused $800 million of property damage by selling unfit phones and they knew about it and they sent it out for profit anyway." The punitive damages there may be very large. Every judge is going to make the determination whether punies are going to be appropriate in their case. If you have somebody who lost a hand, again I don't know how explosive these explosions are, but if somebody lost a hand or lost the use of their hand because it was so burnt, then that person might also very justifiably go after punitive damages against the company.

It's possible there would come a point where a judge would say, "Okay the purpose of punitive damages is never to award the person who's been hurt. It's only meant to send a message." There's already been so many millions of dollars in punitive awards against this company, guys message has been sent. We're not going to find punitive damages appropriate in this case. The plaintiff only has so much room to complain because the punitive damages, although the plaintiff is the one that gets the money. They're never really his, it was for the purpose of teaching a lesson and to prevent other people from doing the same thing.

Jordan Flake: Sure that makes perfect sense. I think that gives us a good rundown on obviously if you have a products liability situation you can probably easily tell if Jared's the right guy to call. If you have something like that pop up let us know. In the meantime, as always, we're very interested to hear your thoughts on this. Let us know if you have a different take on this or if you think the cell phone companies need to be treated differently when they have this type of situation come up. Leave us a message and let us know. Thanks so much for joining Clearcast. We really appreciate it.

Jared Richards:  Thank you.


Do the Dog Bite Laws in Nevada Need to Change?

Hello and welcome to Episode 2 of ClearCast!

We are sure you have heard about the horrific story of the child in Las Vegas that was killed by a pit bull. The fact that the dog had a previous violent incident has many folks in the Valley upset1)and not unreasonably.

In turn, two of our partners sat down for a few minutes to discuss the current state of the dog bite laws in Nevada.

Good information for all Nevada families!

Thanks for watching.

Analyzing the Current State of Nevada's Dog Bite Laws


Jordan Flake: Hi, I'm Jordan Flake, and this is Attorney Jared Richards. His is a personal injury attorney. Welcome to today's Clearcast. We're talking about a really sad event that occurred just very recently here in Las Vegas. Imagine this scenario: A nine-year-old boy was going to visit his friend's house. As soon as he showed up at the door, the owner's pit bull jumped out of the house and attacked the child, a nine-year-old, and ended up killing him. There was a fatality involved with the pit bull.

We brought Jared on today because he's a personal injury attorney, and he knows a lot about what we would colloquially refer to as dog bite law.

Let's talk about this for a second here. Just kind of, let's start really broad and general. Every time a dog bites a person, is the dog owner liable or how does that how does the law kind of even start to work on this? Before we even get to the fatality, if you're just jogging along and somebody else is jogging with their dog the opposite direction, and that dog bites your ankle?

Jared Richards: Right. First of all, tragic, tragic occurrence, and our heart goes out to the family of the boy. In general, we don't have any specific statutes that address the negligence aspect of dog bite liability. We have some criminal statutes, but it's not for general negligence, which means we just go under general negligence law which we call just General Negligence Common Law.

Jordan Flake: There is not some statute that says, "This is dog bite law, NRS1774 in Nevada. There is just we go under what happened in previous cases?

Jared Richards: Right. Kind of.

Jordan Flake: Okay.

Jared Richards: There is a criminal statute, and if you violate the criminal statute then you automatically are going to be liable for damages that are done when you violate the criminal statute. You don't have to violate the criminal statue ...

Jordan Flake: In order to be held ...

Jared Richards: In order to be held responsible.

Jordan Flake: Okay.

Jared Richards: Right, but if you violate the criminal statue your [inaudible 00:02:16].

Jordan Flake: What is ...?

Jared Richards: What it is is everybody has the duty to act as a reasonably safe and prudent person. It's my duty, it's your duty, it's everybody's duty at all times.

Jordan Flake: Which is why we can't drive recklessly.

Jared Richards: That's why we can't drive recklessly, we can't drive drunk, we can't drive distracted. We have to follow the basic safety rules of society as a reasonably prudent, safe person would do. Now, if we breach that duty and as a result of us breaching that duty somebody gets hurt then we're on the hook for the damage that we've caused.

In the case of a dog the question is going to be up to the jury of what would a reasonably prudent and safe person, as an owner, have done in that situation?

This is where we get into questions about whether the one bite rule would apply or not? The one bite rule is a traditional common law doctrine where the owner isn't going to be responsible until the animal has actually attacked somebody at least once before because they don't know that the animal is dangerous.

I don't know that would actually apply here. What's really a jury is going to at and say was there sufficient notice to this particular owner that this particular dog was dangerous?

Jordan Flake: Just so everyone knows out there, the background also on this is that that dog was previously cited for attacking another dog.

Jared Richards: Right.

Jordan Flake: The question is, does that constitute sufficient notice so that the owner of the dog would have said, "You know what if a guest is coming to my home or if the front door is open and we're just dealing with the screen door I better make sure this pit bull is restrained because somebody could come to the door and freak my dog out."

Jared Richards: If you're the person who owns the dog or if you're the insurance company, like the homeowner's insurance that's backing up the dog, you've got to be careful about that because you're going to have a lot of juries out there that might think that. If it's already attacked another animal then it might attack a human. But, there might be juries that think the other way around. It really is going to depend on what the ultimate juries believe. What they think was proper notice to the owner that this was a potentially dangerous animal.

Now, the criminal statute is a little bit different. The criminal statue defines animals under two different varieties, under dangerous and vicious. Dangerous means that when it's provoked it's going to get defensive. Vicious means ...

Jordan Flake: It goes out looking for trouble.

Jared Richards: Yeah, it goes out looking for trouble. You don't need to provoke it. Once it's been either cited as a vicious animal or you observed it be a vicious animal and you've seen it go out and bite then you have seven days, you can't transfer it and you have seven days to get rid of it. If you don't do that and somebody gets hurt then you've committed a misdemeanor. You've actually violated criminal law and you are, what we call, negligent to per se. You are just ... The law's going to assume that you've breached it.

Jordan Flake: That's if they're vicious?

Jared Richards: If the dog is vicious.

Jordan Flake: It seems, kind of, actually light because if you know your dog's basically a weapon ...

Jared Richards: Yeah, and that makes sense. If you've gone to the point where you're actually committing misdemeanors then you're going to be held viable. You don't have to actually get to the point of committing the misdemeanor to be held liable. You don't have to know that you're dog is vicious. You have to know that the dog is vicious before you get criminally cited. To be civilly liable all you have to know is ...

Jordan Flake: The dog is dangerous.

Jared Richards: You have to act as a reasonably sane person would act.

Jordan Flake: It's interesting, the records show in Clark County that there's been like 154 complaints made against dogs and only nine have been characterized as dangerous of those 154 that we kept records of and zero have been classified as vicious. I think it's a pretty rare, apparently, a pretty rare classification.

Jared Richards: That's interesting. Does that mean that there just aren't that many vicious animals out there or ...

Jordan Flake: Do the standards need to change to where ...

Jared Richards: Or do the people who are enforcing the standards just not actually enforce them?

Jordan Flake: Right and that's going to be the issue going forward here is people are going to look at this case and they're going to say, "Well, what went wrong? This dog was already cited as having bit another dog and we have a ..." The thing that we have here is a deceased child. That's a total tragedy.

Jared Richards: Right, that kid is dead.

Jordan Flake: It's just ... When I heard about this story I was just shocked. He's nine. He's a nine-year-old kid killed by a dog.

Jared Richards: What's interesting is that for a while there was a movement, again in various states, when you have a vicious breed of animal like a pit bull, an ultra-aggressive breed of animal or at least the public might perceive as ultra-aggressive that the owner is just going to be assumed to be already on notice that this is a dangerous animal and so they're going to be liable in tort the first time the thing attacks because they're going to assume they're already on notice.

Jordan Flake: You buy a pit bull you know you're buying a pit bull and you know what you're doing.

Jared Richards: There's been a counter movement in the past couple of years where you've had certain states that pass anti-discrimination laws against breeds of animals. I know that Nevada has also implemented that to a certain extent in the criminal statue. It does make you wonder how that would play in the tort. Can a jury still assume that, I don't know if you buy a Rottweiler or you buy a pit bull, you buy a mountain lion, that at some point you have notice that the animal you bought does pose a danger to others just because of it's breed.

Jordan Flake: It's very, very interesting and I think very fertile for academic discussion is it's obviously very unethical to look at race in human beings as a measure of whether or not there's a potential for them to a commit a crime.

Jared Richards: We tend to anthropomorphize, I'm going to screw up the word, these animals and although ... Listen, I like animals too. I like dogs. They have feelings too. However ...

Jordan Flake: The stats don't like. Pit bulls kill humans. They do. I just looked at the stats. It's incredible. Pit bulls are the ones that ... It's overwhelmingly 70% children but they're being by a lot of pit bulls and ...

Jared Richards: Significantly more pit bulls have killed ...

Jordan Flake: Than Golden Retrievers.

Jared Richards: Or Poodles.

Jordan Flake: Or Poodles or Chihuahuas. It turns out there ...

Jared Richards: Not that many Chihuahua deaths.

Jordan Flake: Okay, so maybe last point here, the kid’s name was Derion Stevenson. If the Stevenson's were to come into your office and talk to you about this case and they said, "Hey listen, we're going throw unimaginable pain and suffering. We have his funeral costs and it's just been horrible for us. What are our prospects for recovering in this case. What insurances are out there?"

Jared Richards: That's an interesting question because the natural insurance that you would assume would apply would be the homeowner's insurance. Most people in the State of Nevada or the United States of the world don't really have enough assets to cover an injury like this. My goodness, the boy is dead. Unless you're Wal-Mart you're probably not going to have the kind of money to really truly compensate this family, not that money can. You won't have the kind of money to truly compensate.

What you'd look at first is the homeowner's insurance. The problem you're going to have and something you have to look at is there are certain homeowner's insurances that specifically exclude coverage of what the insurance company defines as vicious animals.

Jordan Flake: Which may be different that the state definition, by the way.

Jared Richards: Right. If I'm going to rely on statistics I'm probably going to rely on the statistics of insurance companies excluding then the state because ...

Jordan Flake: Absolutely.

Jared Richards: Insurance companies are, sorry, cold heart less data driven beasts where this state ...

Jordan Flake: The odd makers and actuaries know their stuff.

Jared Richards: The state does as well.

Jordan Flake: The state, yeah, a lot of interest and so forth.

Jared Richards: A lot of political interest going on. The first danger is is this specifically excluded by the insurance policy and if it is, and this is research I haven't done, is it even allowed to exclude this then there may be additional umbrella insurance. After that you need to make the decision, do you go after the actual personal assets of the family and if you did would they just file bankruptcy? At that point even though you've lost a child, which is horrible, trying to take away all the property of somebody else also ruins their life. It may not make your life better. Those are all things that are difficult to weigh and sometimes it's right and sometimes it's not. Those are all things that that person, they need an attorney. They just need one.

Jordan Flake: Absolutely.

Jared Richards: Whatever attorney they go to they should go to one that has experience in personal injury, preferably experience in animal tort and that is compassionate enough they could actually try to walk them through some of these very, very difficult choices and issues that they're going to have to deal with.

Jordan Flake: Absolutely. Thank you for joining us for Clearcast. Let's just do a few little takeaways.

First of all, Jared is a great personal injury attorney. He's my partner but still he's a great personal injury attorney. If anybody out there has a question about a dog bite case or some other personal injury please seek his expertise. He will do a free consultation.

Second, is we would love to hear what you think. If you could chime in on the blog or on Twitter or Facebook and let us know what you think about pit bulls, about whether or not the laws are too lax, whether or not there's any justice in this situation, what you know ... You may know something about this story or have an opinion that we don't. We love going back and reading over those comments.

Three, just thank you so much for joining us for Clearcast and we'll hope to see you here in the future.

Thanks so much.

Jared Richards: Thank you.



1 and not unreasonably
class action

Podcast Preview: Why Are Class Action Lawsuits Permitted?

Earlier this week, Greg Hamblin hosted two of our partners, Jordan Flake and Jared Richards on his new podcastOn The Docket.

We had a great time! The whole episode will be a treat.

..The fun part about recording a podcast with one, Jared Richards, Esq., is that in the midsts of a irreverent conversation about law in the news, there will be a two minutes window where he explains, clearly and succinctly, why the legal system permits class action lawsuits:



Why Are There Class Action Lawsuits?


Greg Hamblin:   First question, in the Federal Appeals Court on Thursday, throughout a 7.25 billion antitrust settlement reached by Visa and MasterCard with millions of retailers that had accused the card networks of doing what?

Jared Richards:  Overbilling of some sort. Charging too large of transactions fees?

Greg Hamblin:   Yes, that's it exactly. More specifically that they had fixed their fees in a monopolistic way. The Appeals Court said that the accord was unfair to retailers that stood to receive little or no benefit at all and decertified the case as a case action. I don't know what that means.

Jared Richards:  Wow.

Greg Hamblin:   What's wow? What does it mean when it's decertified as a class action?

class action

Jared Richards:  It's problematic because the idea of the class action is that the individual cases are too small to ever make it economically viable to bring it to court because any given lawsuit, even like the extreme low end lawsuits, are going to cost $10,000.

A big one like this would cost millions and so you bring everybody together and sue them together. You sue with everybody together it's a class.

What you do is, because it's infeasible, where it's very difficult to go out and actually get everybody to sign up, you just have the court declare that everybody who falls in this class, meaning all merchants, will already be parties, will already be plaintiffs and they have to opt out, which is generally the way it goes.

It can go the other way but generally this way and that you have to write a letter saying that I don't want to be part of it or maybe you'll get mail saying I do want to be part of it.

If he's decertified in class, what he's saying is that every merchant, their damages are so different that they don't really fit well as a class. While that may be true that Walmart's damages are going to be significantly different than the florist that we talked about earlier, ...

Greg Hamblin:   Jack Benny's Florist.

Jared Richards:  ... Jack Benny's Florist, the problem is that Jack Benny's Florist is never going to be able to hire a lawyer to make this make economic sense. That's why you want it to be a class.

Greg Hamblin:   I see.

Jared Richards:  That's really difficult for the smaller guys. Even if they wouldn't get a whole lot of benefit that's probably also because they didn't get a whole lot of damage.


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