From Gerry Oginski, Esq.
A New York Medical Malpractice Trial Lawyer
June 15, 2009
Dear Mr. President,
The New York Times reported today (Obama Open to Reining in Medical Suits, June 15, 2009) that you were considering reining in medical malpractice lawsuits. Although you have expressed your opinion that you would not consider placing a cap on jury awards, I’d like you to read this letter before you give further thought to this potentially disastrous policy change.
A few years ago I had the privilege of representing a young man, aged 34, who worked as a mortgage broker. One day here in New York he suffered chest pain and went to a local hospital for evaluation. The physicians admitted him to the hospital for a few days to do a cardiac workup. Blood was drawn, a stress test was performed, and a physical examination was done. The patient was given a clean bill of health and told to follow up with a cardiologist after being discharged. Over the next three months this young and energetic young man continued to experience significant chest pain. On each visit to the cardiologist, the doctor performed a physical examination and shrugged off the patient’s complaints of pain as being “stress related.” Shortly after the third visit to the cardiologist, this young man experienced severe crushing pain which radiated down his arm.
He was taken by ambulance to his local emergency room where he was diagnosed as having a massive heart attack. His community Hospital was unable to care for this patient, and he was transferred him to a tertiary care center in Manhattan. This young man learned that 70% of his heart had died as a result of the massive heart attack he suffered. Because this patient’s heart no longer worked at the same capacity as it once did, all of the fluid would back up into his lungs and create a devastating condition known as severe pulmonary edema. His heart, which is essentially a never-ending pump was no longer able to pump its life-giving fluids throughout his body. In addition, this patient suffered kidney damage because his kidneys could no longer filter fluids traveling through his body.
He required 40 different pills to take each day in an attempt to maintain a fluid-electrolyte balance so that he would not go into renal failure and shock. He required pills to remove the excess fluid that had built up in his lungs. He became an insulin-dependent diabetic and was constantly fatigued because of his heart’s inability to provide the life-giving oxygen throughout his bloodstream to all of the necessary organs.
A once vibrant, energetic and a top-earning mortgage broker was now nothing more than a crippled man trapped inside his body. He could barely walk 10 feet without needing to stop and rest for a few minutes. This young man was told by his physicians that in order for him to improve, he would require a heart transplant. However, because of his co-morbid conditions, this patient was not a candidate for a heart transplant and was told that he had a decreased life expectancy without a new heart.
The New York Times reported today that you recently met with the head of the American Medical Association and discussed the fact that physicians who stay within standard practice guidelines should be afforded some freedom from liability. As the American Association of Justice has clearly pointed out, these standard practice guidelines were created by unregulated medical societies to be used primarily in a court of law in an attempt to debunk a plaintiff’s expert argument that there were departures from good and accepted care leading to permanent injury.
I had the privilege of representing this young man in his quest for compensation for the tragedy that befell him. Three independent medical experts who reviewed this patient’s records confirmed that when this patient initially was evaluated in his local hospital, the stress test records were not properly interpreted. The physician ignored the computer findings and the clinical presenting symptoms the patient had.
Significantly, each of the three independent medical experts who were consulted confirmed that if this patient’s heart disease had been recognized at the time he presented with chest pain, he could have had an elective heart bypass procedure with an excellent chance of success. Had the blood flow to this patient’s heart been timely restored before he suffered his massive heart attack, it would have prevented the unnecessary death of the majority of his patient’s heart.
As you know, no amount of compensation can alter a life-changing permanent physical injury. However, our system of justice requires that the injured victim be compensated not only for their pain and the suffering they have been caused but also for the economic damage they have suffered as a result of someone else’s wrongdoing.
Injured victims who are prohibited from recovering money to compensate them for their injuries would be unable to pay their medical bills, recoup their lost earnings, and earn a living because of their ongoing disability or death. To afford protections to physicians in an attempt to minimize lawsuits or payouts, fails to recognize the significant disparity between the learned professional and the patient, and also fails to take into account that the patient did nothing to cause or contribute to their devastating injuries.
Limiting an injured victim from seeking compensation fails to look at why we award compensation in the first place. If we have a Picasso painting that is valued at $5 million dollars and someone destroys it, that person is obligated to pay the value of that painting. The same is true for an injured victim. The difficulty arises when a jury is asked to award money for a victims’ pain and suffering. The bottom line is that a wrongdoer is still obligated to compensate the victim for their injuries.
Although we as attorneys recognize that there is much enmity between the doctor’s arguments about the root cause of medical malpractice and the trial lawyers arguments as to who is responsible for medical malpractice lawsuits, the fact remains that our system of civil Justice must reign supreme in protecting the rights of injured victims whether they reside in New York, California, Florida, or anywhere else in this great country. I remain curious as to why more physicians do not question their own medical malpractice insurance companies about their investment practices and the cyclical nature of the financial markets and how they influence the premiums that these companies charge for their physician members.
Rather than focus on the attorneys and their injured victims who bring cases in their respective states or on the standards of care that have been created to protect physicians in courtrooms throughout the United States, let us look closely at the insurance companies and call them to task for their investment strategies and the need to recoup income in a down market.
I thank you for the opportunity to express my feelings in this blog post and hope that these comments provide a steppingstone for understanding that changing the way injured victims are compensated for medical malpractice cases in the United States is not the solution.
Very truly yours,
Gerry Oginski
The handbag of The girl shows her The individuality style, mood, and status of a woman is depicted via her bag. We should choose a handbag whose shape fits us properly. Often women purchase glossy handbags and yet do not know that the bag can modify their overall appearing. Your overall appearance can be changed drastically and your looks and style can be enhanced by opting in for carrying a bag that is in proportion with your body shape. You should understand that regardless of the elegance and style of the purse you carry, it will not look fashionable if it does not compliment your figure. Here are a number of tips that will help you select the perfect handbag which suits your body structure properly.You should opt in for a handbag that is contrary to the size of your body.
If you are tiny and tall you should select deep purses, clutch bags, and large shoulder purses. Clutch purses do not boast of any strap to hang over the shoulder, they are alike to bag. Tall persons should select handbag styles. A shopper handbag is unsuitable for them.Since you will look taller by opting in for purses of a smaller size, you cannot gain a good outlook by going in for them. Small hand handbags are best for short women. Hobo and Satchel handbags are suitable for them. Satchel purse has single or dual straps that go across the body and over one shoulder. They should select a short handbag and keep it close to their body.
If you are thin and short then carry a barrel hand bag which will make you look fantabulous. Woman with large hips should go for purses that end well before the hip and the strap, too, should not be long. Those with heavy structured tops should go for long strap shoulder bags The Classic hobo handbag is found in both small and big designs and is perfect for everyone.Select a color that complements nearly all your outfits. These purses are available suitable for the clothes worn by you for occasions. It is recommended that you try to opt in for plain and single colored handbags. Neutral black color suits most and you should opt in for that.
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When it comes to US immigration reform, is there a single solution to the problem? Is there a simple way to solve the issues and fix all the problems that have cropped up within the current policies?
Probably not. Currently we tend to generalize the solution to US immigration into one of four categories. On one end of the spectrum we could turn to an open immigration policy. On the other side, we could try to eliminate all forms of immigration. Then, between those options, we could simply reduce or expand the available methods for getting into the United States.
Obviously, these are oversimplifications of the options for reform, but most of the arguments being put forward these days do tend to rotate around these ideas, but the fact is that immigration into the country, rather legal or illegal, can have an impact on nearly every aspect of society.
It’s not easy to fully understand the big picture when it comes to immigration policies and reform. It’s simply too big and complex to try and tie it down to a single, simplified answer. But as the situation continues to grow and evolve, there will be many solutions put forward in an attempt to do just that.
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/* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-qformat:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin-top:0in; mso-para-margin-right:0in; mso-para-margin-bottom:10.0pt; mso-para-margin-left:0in; line-height:115%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri","sans-serif"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:"Times New Roman"; mso-fareast-theme-font:minor-fareast; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin;}Your new home has cracks in the walls, the roof leaks and the doors and windows don’t close. You call the builder and they rush out only to look at the property and say, “Well your landscaping caused the problem. We will fix the cracks even though we don’t have too because we pride ourselves on customer service.” They perform repairs to the walls and adjust the window and leave. You call your landscaper and he tells you that there is no way the landscaping could have caused the issues since it is just colored rock. Then 6 months later the cracks start showing up again. You think the sky is falling and the builder says it’s not our fault and the battle begins.
In my line of work I see problems with homes on a daily basis. Some are easy to fix and only on rare occasions is it cheaper to tear down and start over than to repair.
There are hundreds if not thousands of attorneys that practice construction law and there are almost as many (so called) experts. These attorneys and experts are able to point out what’s wrong with the home (so are you, that is why you called them) however, many of these self proclaimed professionals are inexperienced when it comes to determining the cause of the damage and what needs to be done to repair the home.
There are some builders that will take the initiative and try to find the problem but with the residential construction market crashing, many simply don’t have the money for repairs. So your home doesn’t get fixed or only gets patched and the contractor goes away. When the problem returns you look for professional help. You hire an attorney and/or a construction expert. The attorney sends a letter to the builder spelling out all the defects. The builder turns the case over to their insurance company and the insurance company contacts their attorneys. Then after a few letters are exchanged the builder’s inspections are performed by their team of experts. The battle turns into what law is applied and how that law is interpreted instead of what is wrong, how do we fix it, who is responsible and how much will it cost.
At this point I feel I should point out that the only people that make money in lawsuits are the attorneys and the experts. Typically both sides end up paying for these services out of pocket and while you can always ask for attorney and expert fees and costs in a lawsuit, my experience is you rarely recoup 100% of those costs even if you win.
The truth about the attorneys and experts is many of them help each other make money. Since the attorney typically recommends the expert, some of the experts attempt to, shall we say, view things differently. The plaintiff’s expert must have scratched glasses because everywhere he looks he sees cracks while the defense expert looks at the ceiling and then states he didn’t see any evidence that the foundation has moved and he saw no cracked floor tiles. Usually the truth is somewhere in the middle. (Recently a local engineer stated that even though the floor in a building had sunk 7 inches, it wasn’t moving when he looked at it so it is no longer a problem.)
The fact is these types of experts don’t help the case they slow it down and that, along with the attorneys bickering, results in increased costs. The builder’s insurance company pays then increases their fees the following year and the builder has even less money. This is one of the many problems with builders using the insurance company is their own persona warranty company
Good News: Not all builders, attorneys or experts behave that way. I have had the pleasure of working on the opposite side of some experts that actually know what is wrong and want to see the home repaired properly. This really is a win win. The home owner gets the home fixed, and the builder is able to salvage their reputation. (Not to mention the attorneys and/or experts get paid.)
Both sides can and should do several things to help control costs.
Photo document everything. I don’t care if it is the foundation steel or the cracks in the walls. Use a measure of some kind. If you don’t have a tape measure simply place a dollar bill net to the defect you are photographing for a size reference. Take several photos of everything from different angles and document the day the photo was taken and by whom. These photos can reduce the number of trips to the property and if taken during construction or repairs, may prevent, or reduce the amount of destructive testing that needs to be performed.
Interview your team. Find out what their experience is and what type of success they have resolving the issues. (This is different than settling the case). What other experts do they know and work with? Have they worked on other cases like yours? What are their fees and how do they bill?
Try to find a construction expert that will work with both parties to resolve the issue before you hire the attorney. If you are going to hire an expert anyway, why not give them the chance to work with both parties to resolve the issue first. If they are successful, you saved the attorneys fees, if they are not, you will already have the information needed so it can expedite the process.
Have the home professionally inspected before you purchase it. Take photos of the entire home interior and exterior and save the photos with your inspection report. If the damage existed when you bought the home, it will be documented, if it occurs after the purchase, that will be documented s well. Gathering evidence is one of the most expensive costs in a case. Taking photos or video of the entire home during construction, at the time of purchase, at the time of any repairs, and any other time can help your case and help keeps costs low.
For more information feel free to contact us.
Scott Warga, is the Qualifying party for ACSI American Construction Specialists and Investigations LLC,(ROC216772) a dual licensed residential and small commercial contractor. He is also a qualified home inspector certified by the Arizona Board of Technical Registration (#38062) and was appointed to the Arizona Board of Technical Registration’s Enforcement Advisory Committee. He has 9 years construction experience and has performed residential and commercial property inspections for over six years. He has specialized in forensic inspections, investigating failed, damaged and defective construction for over 4 years. He is a member of the American Society of Home Inspectors, (#205826) and currently sits on their board of directors. Scott is also a member of the International Code Council (#5095644). He has been an instructor of home inspection at Mesa Community College and Arizona Sun-Tech Home Inspection School. He is an instructor for Inspection Training Associates, a Kaplan Professional School. He has served an District Chairman & Vice President for the Arizona chapter of the American Society of Home Inspectors and an approved instructor for both them and the Arizona Department of Real Estate.
Florida DUI laws are complex and made to punish those who drive under the influence. With that said, however, DUI laws in Florida also protect the innocent. A policeman cannot just pull over anyone for any reason and charge them with driving under the influence. There has to be proof for it to stick.
If you have been charged with a DUI, there might be many defenses available to you. Defenses that can keep you from facing harsh penalties. Florida DUI laws make sure that the prosecution must prove a few things: like that your breath was .08 percent or higher alcohol content and that your normal faculties were impaired. The police officer that pulled you over must have gone through a series of events with valid reason. If any of those details were bypassed, you may have a shot at a DUI case.
This article is available for publishing if you need it on your own blog, just ask permission from Tampa DUI Attorney M. Ameen.
7 REASONS WHY I VOTED FOR AND CONTINUE TO SUPPORT PROPOSITION 8 DISALLOWING HOMOSEXUAL MARRIAGE IN CALIFORNIA.
1. PERMITTING HOMOSEXUAL MARRIAGE IS A DISTORTION AND ASSAULT ON THE SPIRIT AND PURPOSE OF THE CIVIL RIGHTS MOVEMENT.
The biggest lie that the homosexual propaganda machine has promulgated, and much of the American public has accepted, is that this is about discrimination.THIS IS NOT ABOUT DISCRIMINATION AND HAS NOTHING TO DO WITH CIVIL RIGHTS!!!!
It is an absolute insult and huge set back to the Civil Rights Movement and resulting legislation to allow special interest groups with a political agenda, like homosexual activists, to play the "race card" whenever they can't get their way.
Homosexuals are not a class eligible for protection under civil rights statutes. Federal law and the U.S. Supreme Court have limited civil rights protections to specific groups/classifications, which are limited to the following: 1) race/national origin, 2) age and 3) gender. There are also protections for persons with disabilities under the Americans with Disabilities Act. It’s a short list, and homosexuals are not on it, nor should they be. The thing that each of these groups has in common that warrants special legal protection is a long and ugly historically proven denial or restriction of access to education, health care, jobs, and other economic opportunities or benefits due to circumstances over which they have no choice or control.
2. HOMOSEXUAL MARRIAGE IS NOT AND SHOULD NOT BECOME A PROTECTED CIVIL RIGHT BECAUSE HOMOSEXUALS DO NOT HAVE THE SOCIAL AND HISTORICAL CHARACTERISTICS THAT WARRANT SPECIAL LEGAL PROTECTION.
Civil rights laws were designed to protect minorities from the disadvantages suffered through no choice or fault of their own. Homosexuality is not a race, gender, or condition, but a preference, and as such, it is no more entitled to special legal privileges or protections than any other view point based group. Homosexuals are not being disenfranchised as human beings or denied any basic human rights. Homosexuals are a group of people who share a view point or preference for a particular mode of sexual expression. The choice to engage in sexual behavior that differs from the mainstream does have some consequences, but homosexuals are not singled out on this issue. Could men who like to have sex with underage girls be as vocal about their sexual preference and find acceptance and sympathy for their view point? What about polygamists? Aren’t they all just looking for love in whatever way appeals to them? Ironically, laws prohibiting marriage for these groups aren’t declared discriminatory.
Racial discrimination and homosexual marriage are two issues that should never be compared because they are as different as night and day. I was born and will die an African American woman. I wake up every day and deal with all the social and economic consequences that come with this reality. Despite some advances, most African Americans still have to be smarter and work harder and longer to earn just a fraction of the privileges and opportunities that most Caucasians take for granted. My race and gender are genetic facts that are beyond medical science; they are not optional and there has not been one day of my entire life that I could choose differently.
I am appalled when people use the election of America’s first black president to claim that racism is no longer an issue in this country. It is a symbolic change that by no means undoes all the real racism that goes on everyday in America. Everyday, black children attend dilapidated public schools that look more like prisons than learning institutions. They are denied basic services and materials like current text books and access to technologies that are necessary to allow them to compete in the market place. Meanwhile, white students attend pristine technologically advanced schools with far more services and opportunities. Both are funded by federal and state tax dollars, but the distribution of resources is far from equal. From an early age, black children are taught the message that their lives and education just aren’t worth as much. Every day in cities across the country, police officers continue to racially profile, beat, and kill black men with impunity. While Americans were outraged at the acquittal of OJ Simpson, he is an isolated exception and not the rule. There is rampant discrimination in the criminal justice system that continues to destroy the lives of black men and black families. Most black men who are not celebrities or unusually wealthy do not get fair treatment by the system. People assume that black men commit more crime. The fact is that black men are disproportionately targeted and abused by law enforcement, have less access to adequate legal representation, and are exponentially more likely to be arrested and convicted regardless of whether they are guilty. The humiliation and physical risk of driving while black continues to be a very real issue in this country. Black women may appear to have greater access, but continue to face racism in education and the work force and suffer from the destruction of the black family unit caused by the genocide and degradation of black men. Hence, the alarming number of unmarried black professional women. As long as disparities in education and injustice in the legal system persist, the vast social and economic ramifications of being black in America will continue to perpetuate racial inequality in this country.
The idea that homosexual marriage is a civil rights issue necessarily requires accepting homosexuality as an involuntary condition, rather than a choice. Neither science nor rational thought can support that position. Despite valient efforts to prove a genetic cause for homosexuality, the data does not support it. Research proves that there is no genetic difference between homosexuals and heterosexuals; there is no "gay gene." Twin studies also show no higher incidence of homosexuality in twins. There is also scientific support that environment and social influence play a significant role in encouraging homosexuality. It is a fact that 75% of homosexuals have suffered some sort of sexual trauma. There are thousands of other social and environmental factors that may be involved. Science disproves the claim that homosexuality is a genetic condition.
Rational thought also defies this position. We are all born male and female, having traits of both, but in most cases emotional and social development aligns with physical gender to dominate the expression of male or female characteristics. All children are born with a sexual identity defined by genitalia, but no baby is born with a sexual preference. Sexual activity and expression generally do not occur until later in development. Homosexuality is a choice, perhaps a series of choices. Some people who are inclined toward homosexual activity try to convince themselves and others that it is a manifestation of something that existed from birth, but there are no facts to support this theory. It is consistent with a disturbing trend in America to deny responsibility for our choices, and label every difficult choice as something cosmically imposed through some external source over which one has no control. If you drink too much, are violent or just can’t get your life in order, then it is your parents’ fault. No one wants to own their challenges anymore and there is an excuse for everything. Since being openly homosexual is obviously a choice, the social or psychological benefits must outweigh the cost, or no sane person would elect it.
Most proponents of homosexual marriage happen to be Caucasian and have no real concept of what discrimination is. Because of this lack of understanding, they fail to see the difference between privileges and rights. They falsely describe this as a “civil rights” issue, when in fact it is a fight for privilege. The aim is to legitimize homosexuality as a social norm and encourage its proliferation in religion and society as a whole.
I find it deeply offensive when the proponents of homosexual marriage falsely equate the campaign for homosexual privilege to racism. There is no valid comparison between homosexual marriage and the cruel torture, genocide, and immeasurable social and economic oppression that African Americans have suffered in the struggle for equality. My parents and grandparents did not endure slavery, lynchings, segregation, dogs, and fire hoses, to legalize homosexual marriage. Increasing sentiment by the media and some citizens accepting these false claims of "discrimination" made by homosexual activists and their supporters dilutes and trivializes the purpose and spirit of civil rights legislation. To require states and churches to perform homosexual marriage under the guise of civil equality will open the flood gates to dozens of other special interest groups and render civil rights laws meaningless and void. To permit homosexual activists to manipulate the hard fought civil rights laws penned with the blood of my ancestors is a perversion of social justice that is about as reprehensible to me as denial of the holocaust. It is a lie that is too pernicious to ignore.
3. HOMOSEXUAL MARRIAGE REPRESENTS A REAL THREAT TO FREE SPEECH.
The continued expansion of the homosexual agenda has increasingly become an attack on our First Amendment Right to Free Speech. Over the last several years, anyone that criticizes, disagrees with, or opposes homosexual agenda in any way, has been viciously attacked and labeled a racist. It has become career suicide to call someone a homosexual, even if they are! Any view point contrary to that of the homosexual political agenda has been regarded as discrimination and elevated to the status of a racial slur. The apparent goal is to eliminate free speech for anyone that does not support the homosexual point of view. Free speech is ultimately about free thinking and the right to expression, and that is what is at stake.
As Americans, we used to be free to dislike and disagree with others for an infinite number of socially and legally acceptable reasons. You can still tease or criticize people who are over-weight, old, short, funny looking, unfashionable, etc, and its perfectly ok. But after a very successful marketing campaign, homosexuals have become a hyper-protected special interest group with an insatiable appetite for privileges that jeopardize the rights of others to disagree with them. During the 2008 political campaign in California, opponents to Prop 8 made ridiculous statements like “chickens have more rights in California than homosexuals,” pointing to a ballot measure that was passed under which chickens got the right to have cages big enough to stretch their legs. So far there have been no reported incidents of any chickens getting married. Homosexuals have been extraordinarily successful in convincing others that they are disadvantaged and mistreated. The homosexual agenda is intent on driving heterosexuals “into the closet” and prohibiting any speech that homosexual activists don’t approve of. It is to the point that much of the media will demonize anyone who dares to challenge the homosexual rights agenda. Making any speech opposing homosexual marriage into a discrimination issue is aimed at making the heterosexual viewpoint illegal, both as a matter of civil and criminal law. The news has been littered with examples of public figures who have suffered swift and extreme political, professional, and social consequences for expressing heterosexual view points. Consider the vicious attacks on the former Ms. California. She was asked a politically charged question about gay marriage and when she answered honostly, was attacked, harrassed, and ultimately fired. The right to free speech is very much at risk, and the cost of sentimentality for homosexual privilege will cost far more than most people realize.
4. HOMOSEXUAL MARRIAGE IS A THREAT TO THE FIRST AMENDMENT RIGHT TO THE FREEDOM OF RELIGIOUS PRACTICE.
Religious and faith based institutions are increasingly facing the loss of their tax exempt status, political attack, and expensive law suits if they exclude or refuse to marry homosexuals. Faith based entities are being forced to hire homosexuals and put them in positions of leadership even though it violates core fundamental values of the institutions. Despite all of the failures and shortcomings of individuals and marriages, the institution of marriage is the foundation for family, which is still the single most important social structure in existence. If homosexuals cannot accept the basic tenants of the Christian faith, then perhaps they should create a new religion, rather than try to force Christianity to abandon biblical principles to accommodate them. Most Christians are quite accepting of homosexuals. However, they will not re-write scripture and still see sin as sin. Most Christians are taught to hate sin but love sinners. I was outraged recently when I saw a group of seminary students attacking Christian Universities, for alleged inequalities in the treatment of homosexual students. It seems odd that a homosexual would chose to attend a Christian school with the infinite number of prominent secular institutions available. It is part of an aggressive attack on any and all things that do not bend to the will of the homosexual agenda. The homosexual agenda threatens the right and ability of religious institutions and their members to practice their own religion and is a growing form of religious persecution.
5. A MARRIAGE LICENSE, LIKE ANY OTHER LICENSE, IS A PRIVILEGE GRANTED BY THE STATE, AND THE STATE IS PERMITTED TO SET REASONABLE CONDITIONS FOR ITS ISSUANCE.
While marriage is a covenant between two people, the state’s involvement in the choice
of two people to enter a marriage is pretty much limited to issuing licenses. A license is a
grant of permission to do something, and may have other related rights or privileges.
Every license issued by a government entity has conditions governing one’s eligibility.
You need a license to run businesses, enter professions, drive a car, or hold a parade.
There are more laws prohibiting or restricting the ability to obtain a driver’s license than
there are for getting married. There are written tests, vision tests, age requirements, training requirements, etc, and failure to meet any will result in a denial of the privilege to drive a car. If you think its tough being a homosexual who can’t marry; try living in Los Angeles and not being able to drive a car. Sadly, there is no advocacy group for Californians who can’t drive, so I guess this group will just have to suck it up and catch the bus.
California government entities and most religions will only marry a man and a woman. It is a requirement that the intended couple be of opposite sexes. Homosexuals don’t meet this basic condition to get a license, and therefore are no more entitled to marry than a person who fails the written driver’s exam is entitled to drive. Two people can make a lifetime commitment to each other without ever obtaining this now coveted piece of paper. Civil unions provide many of the same benefits as marriage. Heterosexuals who cohabitate without marriage or remain single, whether or not by choice, don’t get any of the benefits of civil union but no one cares about their challenges. Homosexuals can throw a party and invite all their friends, but if they want the state or the church to bless, validate, or recognize their unions, then they have to follow the rules like everybody else.
6. MARRIAGE IS A SOCIAL INSTITUTION GROUNDED IN MORAL AND RELIGIOIUS PRINCIPLES.
On a spiritual level, there is nothing hateful, sinful, or mean about opposing homosexual marriage. It is about preserving a fundamental aspect of our collective social and religious heritage. As a technical matter, the bible does not prohibit homosexuality, but prohibits the act of intercourse between people of the same sex. Leviticus 18:22. The very same chapter of Leviticus prohibiting homosexual sex also prohibits a number of other sexual practices, including intercourse with animals, close relatives, and UNMARRIED HETEROSEXUALS. Leviticus. 18:1-29. From a biblical stand point, all of these practices are regarded as sins that violate spiritual law. However, from a biblical perspective, homosexuality is at the far end of the spectrum of what is considered to be sexual perversion. The majority of Christian churches still teach abstinence from sexual intercourse of any kind outside of marriage. A difference of opinion on the fundamental issue of marriage has nothing to do with hatred or intolerance, but the preservation of social and moral principles that are essential in this time of rapid and progressive moral decay. People are getting tired of the oversaturation of aggressive and explicit homosexual images and messages that have been increasingly forced into American homes through every conceivable medium, that conflict with their own values and beliefs. American people are pretty open and accepting for the most part, but occasionally, when things get too far afield of our collective moral sensibilities, the people will come together and set a limit.
7. CONTINUED OPPOSITION TO CALIFORNIA LAWS REGARDING MARRIAGE IS A VIOLATION OF THE DEMOCRATIC PROCESS.
Californians have voted twice on this issue, and homosexuals still refuse to accept the result of the democratic process. The people of California made a choice to pass a law that is legal and valid and should be honored because it does not violate any civil right. As set forth above, this is not a discrimination issue, and there is no valid legal argument requiring the state or church to perform homosexual marriages. The claim that Proposition 8 stripped away an "existing right" to homosexual marriage is misleading. California voters previously passed Proposition 22 in 2000, defining marriage as between a man and a woman.
The California Supreme Court case, In re Marriages, started this controversy and temporarily allowed homosexuals to marry until a second election corrected them. Even in that case, the court acknowledged the fact that many states have legally passed laws restricting marriage to heterosexuals. The issue in California was technical and somewhat complicated because of the paradoxical existence of civil unions that mirror most of the rights of marriage but deny the "title" of marriage to homosexual couples. This was the basis on which the court struck down the 2000 law, and temporarily permitted homosexual marriage.
The people of California voted again in November 2008, this time to amend the State’s Constitution to define marriage as between a man and a woman. Homosexual activists challenged the validity of the election and lost. Homosexual activists still persist and believe they can get around the will of people by intensifying their marketing efforts and repeatedly putting homosexual marriage legislation on the ballot until they get the result they want. The hope by some homosexual activists to make marriage a federal issue would require a rejection of essential principles of our constitution. The U.S. Constitution and the fundamentals upon which this country was built reserved the right of states to decide several social issues, including marriage. Based on the continued protests and deep divide on this issue, it may take a decision from the U.S. Supreme Court to finally put the matter to rest. If that happens, I think these activists will find they reached too far and will regret it. Federal courts have been clear that homosexuals are not a suspect or semi-suspect class and therefore absolutely not entitled to protection under civil rights statutes.
Final thought.
Homosexuals are fighting for a privilege and using deceptive propaganda to portray this as a civil rights issue. “gay” is not the new “black”. Ultimately, this is not about intolerance but about preserving at least a few fundamental values held by the majority of Americans. For the heterosexuals who sympathize with the gay rights activists' rhetoric and ask “Why not let them marry?” my answer is this: because it costs too much. The loss of civil rights laws for those who truly need them, the loss of free speech, freedom of religion, the ramifications to education and our culture is immeasurable. I for one am not willing shred the constitution and surrender most of the fundamental rights upon which this country was built to yield to the self serving indulgences demanded by homosexual activists.
I recently had a real estate agent ask me if infrared was a good thing and should she recommend it to her clients, my answer was a definite maybe, here is why.
Every few years a new trend comes along that affects the home industry. These trends include mold, lead, radon, asbestos, moisture meters, microwave leak detectors and now infrared or thermal imaging. These trends come with the homeowners protection in mind, however there are always people there trying to make a quick profit from the latest trend.
Allow me to start by saying I am a home inspector and many of the home inspectors that read this will be very upset with me because they feel that the proper training and programs are not necessary, I will let you decide. I will also state that I believe mold, lead, radon, and asbestos are all items that may need to be checked, however any testing needs to be performed by a trained professional and not someone that bought a sampler and attended a eight hour class and now calls themselves “certified”.
Anyone in the US can purchase a thermal imaging device for a price starting around $3,000 but most quality units start in the $10,000 range. These units are incredible; however, just because you can buy a camera, does not make you a Thermographer. Real training is needed to properly operate the thermal imager and to interpret the images. (this is why inspectors charge more for this service.)
Like any tool these units have their limitations: They only measure surface temperature. (They can’t see through walls) There may be issues in a wall like moisture or missing insulation that effect the surface temperature of the wall and the thermal imaging device may detect those differences but infrared is not an X-Ray.
Many surfaces are reflective and if not properly addressed can provide false readings. For example the heat from ceiling lights can be viewed on a wood laminate floor, Glass and ceramic tiles have a mirror effect when scanned with a thermal imaging device.
The units are so sensitive that they can measure 1/10 of a degree F. This leads the inexperienced operator to spot items that appear to be major issues, only to discover later that there was a temperature difference of <1°F. I have been called to many projects where someone had an infrared camera and called out issues. When a contractor is hired to address the issue they are told “everything is fine, I couldn’t find a problem.” That is when I get called in. I will look at the pictures from the first person and try to recreate the conditions preset when they did their work, then determine if there is a real problem. Most of the time the problem is the previous operator.
Here is the short version. Most people with infrared cameras have had some training and many will call themselves “Level One thermographers”, however even they don’t understand what that term means. A true “Level one certification is a single component of a Thermography program Standard that follows the American Society of Nondestructive Testing (ASNT) guidelines for certification. That program needs to be overseen by a Level three thermographer. If someone tells you they are “Level One Thermographer” simply ask them who the level 3 thermographer is in their program; If they don’t have an answer than they are not meeting the ASNT standards. You also need to be aware of the certification stamping companies. Some are no more that a pay and be certified, some provide minimal training but there is no one there to verify who took the training or if the student can field demonstrate how to use the thermal imaging device.There are also ASTM standards on how to use thermal imaging to perform different inspections, for example, there is a standard for an insulation inspection on wood framed buildings. That standard requires several things like recording the interior and exterior temperatures and making sure the difference between those temperatures meets the standard. The inspector needs to measure the wind speed and direction, the solar conditions, The building construction, levels, orientation, surroundings etc. If your inspector is not recording this data then they are not meeting the standard of care set up by ASTM. A qualified and ethical inspector will also understand building science and apply that knowledge while performing the thermal imaging. Simply put the infrared unit will not see moisture if it is not there so if it hasn’t rained in two weeks, it may not find the leaks. If the interior and exterior temperature are the same (very common in the spring and fall) then it is likely the camera will not be able to identify insulation issues.
Now I return to the agents question: should she recommend it to her clients?
Yes if the person performing the thermal imaging is properly trained to do so and you are aware of the conditions needed to properly conduct a thermal imaging inspection.
If If your inspector is charging extra for scanning walls with infrared and it has not rained for a month and all of the windows of the home are open, then it is time to find someone else..
Scott Warga, is the Qualifying party for ACSI American Construction Specialists and Investigations LLC,(ROC216772) a dual licensed residential and small commercial contractor. He is also a qualified home inspector certified by the Arizona Board of Technical Registration (#38062) and was appointed to the Arizona Board of Technical Registration’s Enforcement Advisory Committee. He has 9 years construction experience and has performed residential and commercial property inspections for over six years. He has specialized in forensic inspections, investigating failed, damaged and defective construction for over 4 years. He is a member of the American Society of Home Inspectors, (#205826) and currently sits on their board of directors. Scott is also a member of the International Code Council (#5095644). He has been an instructor of home inspection at Mesa Community College and Arizona Sun-Tech Home Inspection School. He is an instructor for Inspection Training Associates, a Kaplan Professional School. He has served an District Chairman & Vice President for the Arizona chapter of the American Society of Home Inspectors and an approved instructor for both them and the Arizona Department of Real Estate.
How to Handle Encounters With Law Enforcement
It has to be said, first of all, that the best way to handle encounters with law enforcement is to take the necessary steps to reduce the chance that an encounter will occur in the first place.
If however you are confronted by a law enforcement officer you should follow this three step procedure:
Step 1 - Determine if you are free to leave by saying: “Am I free to leave?”
In order to detain you the police must have, at a minimum, a “reasonable suspicion” that you are involved in a crime. If they say you are free to leave you should leave immediately, without saying anything else.
Step 2 – If you are not free to leave say: “I’m going to remain silent. I would like to see a lawyer.”
The Fifth Amendment to the U.S. Constitution says that no one “shall be compelled in any criminal case to be a witness against himself”. Yes, this means you cannot be forced to talk. Now you must actually remain silent. No small talk, no questions, no jokes, only silence. Only one exception: you must give your name and your address when asked.
In Escobedo v. Illinois, 378 U.S. 478 (1964), the United States Supreme Court held that criminal suspects have a right to counsel during police interrogations under the Sixth Amendment If the suspect asserts her right to counsel, the police must immediately stop the interrogation and they cannot resume the interrogation unless an attorney is present or the suspect re-initiates contact.
Step 3 – If the police ask (or begin) to look through your things say: “I do not consent to a search.”
This is easier said than done. It’s human nature to try and talk yourself out of trouble and to cooperate with authorities. It takes self control (and practice) to exercise your right to remain silent. However, doing so is the most important thing you can do to help yourself in this situation.
These steps are listed to help you protect yourself in the case of an encounter with law enforcement. But always remember, the best thing you can do for yourself is to do everything in your power to avoid an encounter in the first place.
It is almost Labor Day and for those of us who live in parts of the country where our children have already gone back to school or started fall sports and activities we are being visited by the annual scourge of our kids being forced into fund raising for PTO, Football, Cheer, Marching Band, Soccer, etc. You can't approach a grocery store or answer your door on the weekend with out some nervous teenager asking you to support their sport, school or activity. While I think it's good for every kid to have to learn the joys of face to face selling so that they can grow up to choose another line of work, the constant strong arm tactics to raise money by needy organizations reaches a point where you simply stop buying from anyone. I believe they call it donor fatigue.
I was also reminded by a business associate that this is the election cycle for state and federal races, with the added bonus that this is a presidential election year. With this cycle comes the inevitable pleas for money from candidates, but increasingly from other organizations that act as proxy fund raising organizations for national parties. With someone with a foot in both the legal and financial world, I get the "offers to help" from both sides of the political spectrum, with the added emphasis being that to fail in my funding options would be an indication by certain organizations as a lack of faith in their message or mission.
Much as I am worn out from the barrage of teenagers begging for money and for me to buy items I don't really want, I am equally tired and increasingly disgusted by the sum's of money being requested by trial lawyer organizations from legal marketing firms, financial services companies and structured settlement firms. I recently viewed a letter from a President of a State trial lawyer organization to the membership, applauding a financial service firm that has contributed close to $250,000 over a two year period to this state trial lawyers group. Let me be very clear, I'm not saying the trial lawyers don't need the money to fight the deep pockets and huge funding advantage of the tort reform forces, or that this firm that made the contributions did any thing wrong by being so generous. Obviously the advocates of public justice desperately need this money to fight the battle on both the state and federal level. With out these funds they are at a huge disadvantage ,as the forces of tort reform have a "bleed the lawyers white" strategy to exhaust their financial resources and to win the battle. I get it, the trial lawyers absolutely need these funds.
However, in the battle to raise money from any and all sources, I can't help but think that these state and national organizations are losing a part of their soul by taking money from just about anyone who offers it to them. Once the trial lawyers discovered that the factoring, structured settlement, legal finance and lien resolution professions were willing to line up and throw money at state and federal groups, all in return for some implied endorsement of their services, the race to the bottom of the slippery slope began. We now are treated to the spectacle of settlement companies that historically went to great lengths to disenfranchise plaintiffs in the settlement process hosting AAJ events, factoring firms that actively market to blow up sound and sensible financial programs for plaintiffs given "preferred vendor" status, legal finance firms battling to be the lender of choice and lien settlement firms locked in a battle to the death to see who can raise the most money to achieve coveted "preferred vendor" status.
While many of these firms are fine companies and provide excellent service, the buying of an endorsement for cash is unseemly for all parties involved.
My suggestion is as follows:
Get rid of preferred vendor status that is solely based on who pays the state association the most amount of money. I know organizations will state that there are other factors that go into this decision, but lets not pretend for a moment the most important consideration isn't who writes the biggest check. In fact, get rid of preferred vendor status all together. People see it for what it is, a pay off or purchase of an endorsement and all it does is alienate all of the other vendors who were out bid. If the trial lawyer groups plan is to upset and alienate a large group of their natural supporters, they are doing a great job of it under the current system.
Unfortunately I don't see an end to this cycle, I only see it getting worse, with the donor fatigue and strong arm tactics that use to be part of the defense industry now in full bloom in the plaintiff market. We are going to see some serious mistakes made as a result of the inherent flaws in this process, but I'm afraid its going to take some financial organization with "preferred vendor" status going belly up or making a mess of some big cases to put an end to this insane practice of firms buying their credibility instead of earning it through the quality of their work
Legal marketing, in the minds of many of us who either market to attorneys or help attorney's promote their services via marketing, is one of the great oxymoron's. It is exceptionally poor marketing and much of what goes on is barely legal.
What passes as trying to market to lawyers for the vast majority of financial, technical and service oriented firms that attempt it, is generally confined to purchasing insanely priced advertisements in bar or trial lawyer publications, making absurdly expensive contributions to these same organizations to get a speaking or writing slot at a national or large state convention, or doing the convention road show circuit where you are reduced to standing in the exhibitor ghetto to pitch your wares to lawyers who are more interested in the free stuff you give away in order to entice them into standing in front of you long enough to shove a card in their hands.
This corrupt, wasteful, demeaning process has evolved into "the industry standard" of how you reach lawyers. Let me ask you, if you are a company that wants to market your services or talents to lawyers, a few questions.
1. How much are you spending to purchase advertising in trade and association magazines and what do you really get out of it? The average budget for the average firm marketing to just trial lawyers, to buy space in the three national magazines, Trial, National Law Journal and American Lawyer, is approximately $5000 for a VERY modest campaign. If you want premium position or full page ad's be prepared to double or triple that number.
2. How much are you spending on State or regional publications? Again, if we break the markets into regions and assume you want to do at least a 5 state buy, a realistic budget for those state publications or to buy space in Lawyers Weekly or a regional paper, you are again at $5000 minimum with the ability to easily double it, particularly in the Northeast or Mid-Atlantic region.
3. How much do you budget to attend trade shows and staff your booth? If you wish to have a consistent presence you need to target Mass Torts Made Perfect, AAJ, ABA conventions at a minimum, which means 6 commitments just with those 3 organizations. If you also want to do a regional purchase, again with 5 states, you will have at least 10 events you need to attend. Lets assume you do at minimum one event per month then. You can not possibly do any event, with travel, booth space, entertainment, lodging and materials for less then $5500 per event and thats low.
So, for a very basic national advertising purchase in media, along with a solid regional media buy, coupled with the required trade show circuit, what is your monthly budget? Approximately $15,000 per month or $180,000 per year!
Lets then throw in the additional "contributions" that most organizations also are required to give to state and national associations to get preferred speaking slots, opportunities to present at meetings, writing in the publications or the coveted preferred vendor designation, and if you can get away from that for less then $50,000 per year you are a better man then I am.
Finally lets toss in the occasional golf tournament, where sponsoring a hole costs you $5000, or annual gala ball or fund raising event and you are probably topping out for everything somewhere around $250,000!
Could someone tell me where this cycle ends and at what point the people marketing to trial lawyers and the bar in general throw up their hands and say " I surrender"? I mean really, how much return can any legal marketer say they are getting for their money when you are pouring in that sort of investment year after year before you have opened up one file, handled one case or sold one item. I realize more then most that you must advertise and that you must support your local and national bar and trial lawyer organizations and I'm not advocating that you stop it all together. However, there is a better way then just pouring money into the black hole.
Lets face it, most people in legal marketing spend with these magazines and organizations out of abject fear that if they don't, their competitors will, and the trial lawyers will black ball them because they stopped spending money with them. Never mind that most people get almost no calls or business off of their ad's in publications or that their contributions amount to nothing once some other competitor offers one dollar more to the association to buy preferred vendor status. No, they have to do it, they have to suffer the indignity of the vendor ghetto because to not do it means you have turned your back on your customers.
I am here to tell you that there is a better way and a better answer and that's The Legal Broadcast Network.
Imagine if you will, taking some of the money, say about 20% of that $250,000 figure I listed, and allocating to fund a full broadcast channel for the trial lawyers in your state. Or, imagine taking 15% of that number and sponsoring for your best legal clients a channel to market their legal services, with your firms name displayed on all of their audio, video or written commentary. Or better yet, imagine that all of this content actually got READ, VIEWED or LISTENED too, instead of tossed in the garbage or on a coffee table. Or, imagine that this content you helped them create and broadcast was available 24 hours a day, 365 days a year forever!
The fact is you can get out of the ghetto of sponsor hell and you can begin to brand yourself and your best clients on the media where 90% of all new customers are found now, and that's the internet. The only thing holding back most legal marketing firms and lawyers is fear and a sense they are leaving behind the known for the unknown.
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Step out of the darkness, leave the ghetto behind and come join the fastest growing, most dynamic means of promoting your firm, your clients and future customers. The Legal Broadcast Network.
Part 1 in a 6 part series on Legal Marketing on the Internet, what in the world do you have to lose?
I am seeking total information about these contrast agents. I have been damaged by these dyes.
This site will be where Earl Nesbitt provides news regarding his legal practice and events in his profession.
The mortgage crisis is the subject of my latest video broadcast this week, particularly the impact of the crisis on the decisions that need to be made by trial lawyers and clients when they are confronted with the question of what to do with their settlement dollars.
As this weekly video series explains, we are in the early stages of a very difficult market, one similar to what we faced in the late 1970s with high commodity prices, monetary inflation, a bond market decline looming in front of us and a stagnant stock market. Factor in the complete collapse of the mortgage and lending business, with the bank failures and market losses further putting client funds at risks, what exactly is a trial lawyer to do.
In what is shaping up as a watershed event and a day that will be long remembered in US Financial history, we witnessed today the evaporation of tens of billions of dollars in market capitalization and personal wealth with the filing for bankruptcy by Lehman Brothers. The human cost and personal toll this will extract financially is beyond the scope of most ordinary people to comprehend, but just think about this one nugget.
Lehman Brothers on it's latest financial filing stated they had assets of $639 BILLION and as of this morning their stock is trading for 18 cents a share. This is the largest bankruptcy filing in US history, dwarfing Enron and World Com which were relatively meager in size at $63 billion and $103 billion respectively.This is a financial melt down of a scale and scope that is literally unprecedented in history and the repercussions are yet to be felt as this financial behemoth now needs to be unwound and chopped into pieces.
Of equal concern now is the immediate future and survival of AIG, the nations largest multi-line insurance company. If you are in the business of settlements, insurance and litigation you run into AIG on an almost daily basis and the magnitude of the disaster of their potentially coming unglued financially would be immense. To put it into perspective, AIG has, according to public records, filings and Bloomberg, assets in it's combined entities in excess of $1 Trillion, but as of this morning it needed a special dispensation from the State of NY to tap it's insurance subsidiaries for $20 billion to stay afloat through the week.
While I profess no great love for AIG, as they have been the literal Evil Empire of the insurance business and a primary driver of many of the anti-plaintiff practices that polluted the settlement business for the last 20 years, a collapse of this magnitude would be potentially ruinous for stockholders, policyholders and hundreds of thousands of others so I believe it is in the interests of every one in the financial and legal community to work to support their continued survival.
The way that is done is to do what cowboys out here in the American West use to do when they were tending huge herds of cattle. That is don't make any sudden movements, speak in a low, calm voice and project confidence and strength to the herd, even singing to them to calm them down. How does that relate to AIG's situation? Basically anyone in the claims, insurance or financial community that has the ability or platform to address claimants, lawyers and others needs to reinforce the size, scope and diversity of an entity such as AIG and do what ever is necessary to make people realize that the single worst thing they can do in relation to AIG business is to stop quoting them for structures, foolishly suggesting people cash out of existing contracts or raise undue or excessive alarm about their circumstances.
The facts are that AIG made an exceptionally large and unwise move into the business of selling "insurance contracts" protecting other banks, underwriters and mortgage companies against losses tied to subprime loans and other risky assets. When times were good they collected huge fee's and allowed these risky assets to obtain a higher then deserved credit rating when sold in pools of mortgages to institutions by having the risky credit piggy back of the AIG AAA or AA+ ratings. The current panic is that if AIG is downgraded to an A or BBB credit that loan covenants will kick in that could set off a chain reaction that could put the entire company at risk. This was a moronic business decision and we can debate the repeal of The Glass Stegal Act that occurred in 1999 and it's inevitable consequences another time. For now we need to focus on the problem at hand and our respective roles in avoiding a panic that need not happen.
Essentially what AIG needs is time and cheap cash and today they spent every minute pulling every available lever to allow them to access cash from their own subsidiaries to the tune of $20 billion, a move that required the state of NY's approval. They also spent most of the day pleading for access to the Fed's lending window to avoid the necessity of trying to raise cash in the private market for the short term, something that is probably now impossible for them to do given the publicity of their cash crunch.
If they can ride out the short term storm, expect to see the jewels of the AIG empire put on the auction block, companies such as American General, Sun America and it's air craft leasing arm International Lease Finance Corp sold off to larger entities. However, the question that will keep us all on the edge of our seats will be if AIG management and the big boys on Wall Street can keep this monster afloat long enough to do an orderly sale of it's assets and avoid a collapse that could drag the entire US Stock market down with it. Remember, the assets are there to pay claims and benefits, the company and it's management just needs time and breathing room to do what is necessary and I pray we don't have any John Garamendi's out there who do something stupid just for political purposes.
Remember, stay calm, move slowly and project confidence, even if your scared to death. It's a matter of our joint survival and we don't need anyone doing anything stupid to start a stampede.
You bought a new home, ordered your options and moved in. A year or two go by and you start rearranging the furniture. That’s when you noticed the odor. You lifted the protective mat under your desk chair and the smell made your eyes water or maybe you smelled it when you opened a closet door or an unvented room. Did you order a light colored vinyl flooring for your kitchen but now the floor has a darker color coming through? Maybe it has a grey or green tint, maybe it has a purple or orange hue or maybe it has bubbled or lifted off of the floor.
These problems and many others are caused by moisture vapor coming up through the concrete slab. This condition is occurring more frequently here in the Phoenix area and there are a few factors that contribute to the problem. Before we cover those factors, lets look at the problem a little closer.
The Issues
Moisture vapor coming up through a slab can cause wood floors to warp, delaminate swell and promotes mold growth. The moisture can cause the mastic that holds tile to the floor to fail, this leads to the floor tiles sounding hollow and lifting off the floor. The vapor frequently passes through carpet and other floorings unless there is some type of vapor barrier. Vinyl flooring creates a barrier by itself, other examples of barriers could be a chair mat, floor runners with a non-slip backing or anything else that prevents the moisture from escaping. The bottom line is, if moisture can’t pass through the flooring, then it is trapped under the flooring. That leads to the next question, where does the moisture come from?
The Source
The moisture typically comes from two sources. The water in the concrete mix slowly dries by traveling to the top of the slab and evaporating. This process can take six months to completely dry a properly placed slab. The other source of moisture is from the soil beneath the slab. Moisture evaporates and once concrete is placed on the ground, the evaporation of moisture in the soil is severely restricted. The moisture in the ground is rarely viewed, discussed or even considered an issue during construction since the slab is still in the drying process and there is not a large temperature difference above and below the concrete. However, this changes once the home is completed. Now the air inside the home is conditioned and the temperature change and pressure change along with the difference in relative humidity between the air above the slab and the soil beneath the slab causes a vapor pressure difference. Simply put, moisture travels from heat to cool. The moisture under the slab is drawn to the cool, dry, air conditioned concrete slab. Concrete is porous, it is not water proof and the moisture vapor rises to and passes through the slab by capillary action and vapor diffusion.
The Cause
Moisture under a slab wasn’t an issue in the desert a few years ago, but today is a different story. Today’s construction techniques are a little different, contractors are flooding building pads to address issues with the soil like compaction and expansiveness. Homes are also being constructed on properties that used to be agricultural land. This land may have been a dairy or a farm field that used to be irrigated frequently. Soils tests are commonly performed before the land is developed. Recently these soils tests results indicate moisture levels of 20% to 50% in the soil anywhere from two to 10 feet down. (it is rare that soil samples are taken below 10 feet deep) It takes a long time for moisture to rise to the top of a concrete slab from 10 feet down, maybe even years.
Sometimes the grading and drainage of the property directs moisture into the soil below the foundation. This, in effect, can recharge the moisture source under the slab. There is also the possibility of an underground plumbing leak or the landscape system adding moisture to the soil under the slab. However, homes are built on moist soils all over the world, why do we have a moisture problem in the desert?
Construction Issues
The moisture is drawn up to and through the slab by capillary action, vapor diffusion and evaporation. The quickest way to prevent the moisture from migrating through the slab is to stop these actions from occurring.
One of the things that need to change is the aggregate base course (ABC) that is being used in the desert. Currently the ABC is a sand/stone mixture, however sand promotes the capillary action and therefore makes a poor choice as ABC in an area where there is an elevated moisture content in the subsoils. Using a stone as ABC would help eliminate the capillary action.
Another way to reduce the moisture is to provide adequate grading and drainage. This should include controlling roof drainage and diverting it at least 8 feet away from the foundation. The landscaping plumbing and control valves should also be located several feet away from the foundation as the control valves have a tendency to leak and the further away that moisture is from the foundation, the less impact it will have on the foundation.
The most effective way to control the moisture is with a vapor barrier. This is a thin plastic sheet placed on top of the ABC before the concrete is poured. Previous construction practices would place the vapor barrier below the ABC or place a thin layer of sand on top of the vapor barrier so that moisture could escape through the top and bottom of the slab, however the moisture still migrates up through the slab. Placing the barrier below the sand or ABC creates a reservoir for the water that drains from the wet concrete and capillary action prevents moisture from draining by gravity through the sand.
It may interest you to know that a vapor retarder is required by the International Residential Code (IRC) in section 506.2.3, however, it may be omitted if the local building official approves the omission due to local site conditions. So how is the issue corrected?
Correcting the Issue
The best way to get rid of the moisture in the slab is to prevent it from getting there in the first place. Check the moisture content of the soil, use ABC that is ½ inch or larger and install a vapor barrier above the ABC and below the concrete. If the home is already built and you own it then you need the help of professionals.
Have a calcium chloride test performed on the floor slab to determine the rate of vapor transmission through the slab. If floor coverings are present they will need to be removed before and during the testing. Testing commonly takes 24 to 60 hours. There are many different flooring companies that can perform this test for you, or contact the engineer you want to assist you with this project.
Check for moisture sources around the home including grading, drainage, irrigation, roof downspouts, and swimming pools. Have the supply and the waste plumbing checked for leaks. If you still have not corrected the issue, then consult with professionals. Expect them to core through the slab and determine if a vapor barrier is present and investigate the conditions of the soil and ABC under the slab.
Methods of repair are limited and should be considered fully before proceeding. The slab surface can be sealed. This will reduce or even stop the vapor transmission temporarily. A good sealer may last ten years, inexpensive sealers may not last a year. Before sealing, all floor coverings and furnishings will need to be removed from the slab. There are other methods of venting or draining the slab that are available, some involve forcing air under the slab or drawing air from under the slab. Another method is to install a drainage system that gets the moisture away from the slab. All of these repairs should be reviewed by an engineer before they are implemented, and the work should be performed by a contractor experienced in this area.
Scott Warga, is the Qualifying party for ACSI American Construction Specialists and Investigations LLC,(ROC216772) a dual licensed residential and small commercial contractor. He is also a qualified home inspector certified by the Arizona Board of Technical Registration (#38062) and was appointed to the Arizona Board of Technical Registration’s Enforcement Advisory Committee. He has 9 years construction experience and has performed residential and commercial property inspections for over six years. He has specialized in forensic inspections, investigating failed, damaged and defective construction for over 3 years. He is a member of the American Society of Home Inspectors, (#205826) and currently sits on their board of directrs. Scott is also a member of the International Code Council (#5095644). He has been an instructor of home inspection at Mesa Community College and Arizona Sun-Tech Home Inspection School. He is an instructor for Inspection Training Associates, a Kaplan Professional School. He has served an District Chairman & Vice President for the Arizona chapter of the American Society of Home Inspectors and an approved instructor for both them and the Arizona Department of Real Estate.
What a couple of weeks this has been. I'm not exactly an old timer but I have been working in the financial community since 1979 and am a serious market historian, and in my life time I have seen nothing that matches the stunning collapses or forced sale and merger of major financial institutions we are watching almost daily.
The names are the who's who of the financial world and several of them will live on in infamy as symbols of the excess of the real estate and lending craze of the late 1990s and early part of this century. Countrywide, Merrill Lynch, AIG, Fannie Mae, Freddie Mac, Lehman Brothers and now Washington Mutual. In the span of two weeks we have seen the largest investment bank, largest insurance company, largest savings and loan, largest brokerage house and largest mortgage underwriters fail or be absorbed under duress. Who could have ever imagined it would be this bad?
The question now then is where should the typical attorney and claimant put their money at settlement to avoid credit risk or possible default of the lending institution. A few ideas and simple steps for all of our readers and listeners, keeping in mind that i am not providing investment advice or assistance here, but simply outlining the facts of how to take simple steps to protect the safety of your funds:
1. If you have the funds in an FDIC bank you have $100,000 of protection so don't panic and pull funds from a bank if you hear rumors and your money is under the $100,000 limit. Part of the issue with Washington Mutual is that rumors of it's problems caused $18 billion in deposits to be pulled out of the bank since September 15th, essentially sealing the fate of the huge S&L. No financial entity can with stand that sort of run on it's deposits. I will bet that a solid majority of those funds were under the $100,000 limit, so they were moved needlessly and helped cause the very result they were fearing.
2. If you have more then $100,000 and are in a community bank or small regional bank, you can request a CDARS program which basically is a weekly process by which your bank buys CD's from other FDIC banks across the country, all under the $100,000 limit. Essentially you buy a program that costs about .20 basis points to .40 basis points in yield, allows you to purchase CD's and spread your risk so your funds are all under the FDIC umbrella. Your banker can assist you in designing a CDARS risk spreading strategy.
3. If you are with a commercial bank or Trust Company that doesn't participate in the CDARS program you need to speak with your banker or Trust officer about setting up a managed account that allows the bank or trust company to buy brokered CD's from banks with FDIC protection on your behalf. Basically this is the same as the CDARS program but your bank is buying the CD's in the market for you directly and holding them in your managed account. If the commercial bank goes down, your managed account assets are held separately and not commingled with the banks deposits and assets and are afforded protection.
4. If you are allocating funds to a structured settlement annuity, work with a structured settlement professional who has access to ALL of the annuity markets so that you can have the funds spread across several quality life companies. In most states, the state guarantee funds provide protection from $100,000 to $250,000 per annuity, so with a carefully planned structured settlement purchase your risk is spread across a variety of life markets. With the down grade of AIG to an A rating, along with Symetra and Liberty Life also having A ratings, there are essentially 7 markets left that have A+ ratings from AM Best and only one market, John Hancock, that enjoys a AAA rating from S&P. Work with your professional to select the right markets and spread the risk to insure that you have the best possible diversification.
5. Do NOT be purchasing bonds and long duration US Treasury bonds at this point and time. The rush to quality has driven down bond yields so a lot of people are tempted to buy long term bonds or junk rated bonds in order to get that extra interest rate kick. However, when the flight to quality eventually ends and the inevitable bump in interest rates occurs due to the drop in the value of the dollar over the cost of the huge market buy out, you will be seeing substantial losses in the value of your bond holdings. I know people are desperate for yield right now but you have to be exceptionally careful about the quality of bonds you buy, the duration and your over all plan or you could end up with substantial losses in value if rates jump back up over the next year or so. Make sure you are working with a qualified investment or planning expert if you are tempted to purchase bonds or any type at this time so they can guide you and inform you as to your best decision here.
In summary, stay in cash, stay under FDIC limits, work with your banker and settlement expert to create a program that gives you protection in the short term and peace of mind in the long term. Structured settlements still make a great deal of sense in this market, but you have to make them part of a larger plan.
When the history of the Mass Tort legal "business" is written some day by some university professor with an interest in strategic and organizational issues the chapter on The Vioxx Settlement should be subtitled, The Day the Music died. Perhaps no other mass tort was started with such high hopes by the trial lawyers involved and which at the end of the day ended up being a massive repudiation of the strategic thinking and legal strategy involved in prosecuting this enormously complex mass tort.
From the start it looked as if this was going to be a home run of epic proportions for trial lawyers and an opportunity for the seriously ill and injured plaintiffs to obtain some measure of economic and financial justice for what they went through. You had clear and horrific injuries as a result of strokes and heart attacks, you had hidden medical data and fudged studies that strongly suggested that Merck knew early on that their drug was a silent killer for a significant proportion of it's users and you had the FDA yanking the product off the shelf as the evidence became clear. Surely all that remained was to round up the injured victims, put them into friendly legal jurisdictions, win a few early trials and Merck would roll over and write that $30 billion check.
I was there at the start, attending ATLA and MTMP meetings and the excitement among the trial lawyers was only matched by the excitement of the legal marketing and advertising firms convincing the trial lawyers to spend massive amounts of money advertising to round up the injured Vioxx clients. Oh and did they ever advertise and spend money, all in the hope of an early, substantial settlement that would pay off all that legal financing and advertising money, but when Merck did the unthinkable and decided to spend close to $1 billion just to defend the first early trials and contest every claim and case did their strategy become clear. Bleed the trial lawyers white in a war of attrition that Merck and it's brilliant general counsel Ken Frazier knew would end in much the way the Civil War ended, with the rebels exhausted, out of resources and desperate to simply strike a truce on the best terms possible.
So what we got was the still significant, but financially modest settlement, in which $4.85 billion is to be allocated among the more then 50,000 injured and ill plaintiffs. Why do I bring all this up? Largely because I started receiving the first of my phone calls from Vioxx claimants this week as they start planning what to do with the still to be determined money they will net in the settlement. Many fear the loss of their governmental benefits if they accept even the modest amounts they might receive and others are wondering what they can do with the funds to some how rebuild their lives that have been destroyed by their use of Vioxx.
I'm not in any way criticizing the vast majority of lawyers who did their best to find injured clients and put them into the litigation process known as the Vioxx settlement. They are each working in the flawed system that has evolved and they are pretty much swept along by the tide and process, with little control over what goes on or how the case is resolved. What I am critical of is a "justice" system where we have legal war fare between a company fighting for it's very economic survival due to a drug they made and sold going bad, and trial lawyers who are vastly under funded and scattered across the country who are attempting to obtain some measure of economic and legal justice for horribly sick and injured people. The wasted time, money, resources and lives now becomes clear, as I talk one on one with the people who are struggling to live with some dignity after their lives were destroyed by this drug.
The great Gerry Spence once said, "awarding money is a poor measure of justice, but it is only measure we have in the civil justice system". As I talk with people whose needs so far outstrip any potential recovery they will receive, it only reinforces what I believe, and that is that our system for handling mass torts is badly damaged and that the only people who receive economic justice are the lawyers who defend these matters and bill at $1000 per hour, and the very few lawyers at the top of the mass tort food chain who control the litigation.
There has to be a better way, but until then the Vioxx claimants are left with the old and cold refrain, that even today their check for compensation for the injuries they suffered from Vioxx, is in the mail.