The state of Indiana offers several resources to divorcing parents to help them cope with the adjustments that a family makes as it goes through the dissolution process. Divorce can be especially difficult for children and their emotions can run the gamut from anxiety to guilt. Many Indiana counties offer parenting workshops or seminars to aid divorcing couples.
Cohen & Malad, LLP paralegal, Tonya Brock, wrote the following article for The Precedent newsletter. She discusses two programs that are available to parents in Marion and Johnson counties. Tonya has been a practicing paralegal for 14 years. She has worked at Cohen & Malad, LLP for seven years assisting clients who are dealing with divorce, child custody, and parenting time issues as she supports the family law practice group.
February 11, 2014
by: Lynn A. Toops, Attorney
The computer software industry is a multibillion dollar industry. Most computers sold today, whether for business or personal use, include a basic operating system along with a few programs. Consumers often purchase additional software to customize their machines to meet their business or personal needs. This software is often made available via downloadable disk or via subscription service. The software as a service (SaaS) industry has been growing in popularity because it pushes regular updates to subscribers, which ensures that users always have current technology.
Computer security packages are a very popular SaaS product. In fact, the term security-as-a-service is often used for the subset of software that pertains to anti-virus, anti-malware, and anti-spam software subscription services. Some common security-as-a-service providers include McAfee, Cisco, Bitdefender, Trend Micro, Symantec, and Kaspersky.
One trend that has interested consumers is the “auto-renewal” option that a lot of SaaS products feature. Many of these companies, like McAfee, market auto-renewal as an easy way for consumers to keep their service activated and be charged the same price as if they manually renew their subscription. However, online customer service forums and complaints filed with the Better Business Bureau suggest something different.
A major complaint about subscription auto-renewals is that many consumers did not realize they were enrolled in this service. Companies like Bitdefender, as a default, set up new customer subscriptions to automatically renew by charging the credit card the customer has on file. Many of these customers are not aware the service has been activated. Instead, at the end of their subscription, they often find a new charge on their credit card for the new term.
In addition to not realizing their account is scheduled to automatically renew, many customers have been charged a higher rate than what is charged to manual renewal customers and new purchasers.
Justice for Consumers
Class action lawsuits have been filed against some of these software companies for deceptive business practices. These types of lawsuits are usually the most effective means for a group of victims to band together and have their collective voice heard against large corporations. More information about investigations of this nature can be found here.
photo credit: john_a_ward via photopin cc
February 3, 2014
by: Edward B. Mulligan V, Attorney
Since 2009, at least 22 children have died while in the custody of an Indiana-based day care. Of those 22 deaths, 16 occurred in unlicensed day cares. And those are just the reported deaths; the actual number is likely higher as deaths occurring in unlicensed day cares often go unreported.
One of these deaths occurred on January 4, 2013, in an in-home day care run by Stacey Cox and her daughter in Carmel, Indiana. That morning, Cox placed a 5-month-old boy in a portable crib and left him unattended. The boy was later found dead. Later that day, both Cox and her daughter tested positive for marijuana.
In the months prior, Cox had received several warnings from state investigators about caring for more than 5 children at a time, which is illegal for unlicensed day cares like hers. Many of the parents were reportedly unaware that the day care was unlicensed. It was also reported that multiple sleeping children would often be left unattended in the home’s basement. The state has since closed this day care and Cox was charged, found guilty, and sentenced to 2 ½ years in jail. This story underscores the importance of conducting a thorough interview and investigation before entrusting the safety of your child to an in-home day care.
To minimize the risk that something like this could happen to your family, you need to ask the following questions before selecting a day care for your child:
1. Is the in-home day care licensed with the state of Indiana?
2. Have the employees of the in-home daycare received any training?
3. What is the child-to-adult ratio?
4. Is the in-home day care insured?
5. Have there ever been any prior accidents or injuries at the day care involving other children?
1. Is the In-Home Day Care Licensed with the State of Indiana? Indiana law requires that a day care supervising more than five children have a license. A license means, among other things, that the day care workers have undergone training, including first aid and CPR certification, and have not been convicted or charged with a felony or misdemeanor relating to the health and safety of children. It also means that the state has conducted a criminal history and sex offender registry check on the owner and others living in the home and inspected the home to ensure that it is safe for children. Each license identifies the approved location, duration, and maximum number of children the day care can supervise.
So, ask to see the license, make sure it is current, and check the number of children the day care is allowed to supervise at any given time. Also ask to see the indoor and outdoor areas where your child will be supervised and when the last time the home was inspected by the state. If the caregiver claims the license is “unavailable,” that is a red flag as state law requires that a day care license be “publicly” displayed in the home. Day cares which have not been “licensed” means there are no guarantees as to caregiver training, criminal history, or home safety. Remember, if the day care supervises more than 5 children (unrelated to the caregiver) and does not have a license, they are breaking the law. The bottom line is this: if a day care owner cannot or will not show you their state-issued license, there is a reason, and you should take your child elsewhere.
2. Have the Employees of the In-Home Day Care Received any Training? As the Cox case demonstrates, training on proper feeding, supervision, and sleeping practices are critical to the safety of your child. State law requires that day care workers undergo fire prevention and safety procedure training within one (1) week of hire and first aid and annual CPR certification. Licensed day cares are also required to maintain documentation demonstrating that safety training been completed. Ask about the types of training that has been completed and consider asking to see the documentation as well.
3. What Is the Child-to-Adult Ratio? State law requires that children attending a day care shall not be left unattended and shall be supervised at all times. This question bears on the ability of the day care to comply with this state law, particularly when your child is asleep. In homes where the children are 24 months or younger, the maximum state-allowed ratio is 6:1. However, this ratio can be as low as 4:1 if five (5) or more of the children are less than 16 months of age. Ask how many children the day care supervises, including children of the day care owner, and their ages. Verify this number on the license. Ask how many employees will be supervising the children and how many of them are over 18 years of age. Ask which employee(s) will be responsible for monitoring your child. Ask to be shown where your child will take naps. Finally, ask who will be monitoring your child while he or she sleeps.
4. Is the In-Home Day Care Business Insured? While the owner of an in-home day care may carry homeowner’s insurance, homeowner’s insurance policies often exclude coverage for personal injury or bodily harm arising from business activities. In fact, some policies specifically exclude coverage for in-home day cares. This means that if your child is injured while at an uninsured day care, you will likely be stuck paying the medical bills, regardless of whether the day care is responsible for the injury. You can avoid this scenario by asking whether the day care is insured and if the answer is “yes,” ask to see the policy.
5. Have There Ever Been any Prior Accidents or Injuries at the Day Care? If the answer to this question is “yes,” ask follow-ups like: What happened? How was the child injured? Who was monitoring the child at the time? How badly was the child injured? Did the day care (or its insurance company) pay for any medical expenses? Did you inform other parents about the injury? Did you report this incident to the appropriate state agencies? What steps have you taken to avoid accidents in the future? That said, if the answer is “yes,” particularly if the injuries were significant or deadly, move onto the next day care on your list.
If the answer to this question is “no,” do not take their word for it. As the Cox case unfortunately demonstrates, not all day care owners respond to this question honestly. Do your own internet research. If the day care is licensed, you can search for it on the Indiana Family & Social Services Administration database located online. There, you can search by county or city for licensed child cares. For each day care you can find out information about past inspections, complaints, and state enforcement actions. If the day care you are considering does not show up, it is not licensed by the state. You should also conduct your own internet search for the name of the day care, the day care owner, and any employees. We recommend that you start your search for a licensed day care on the Indiana Family & Social Services Administration’s Paths to Quality online resource.
The bottom line is this: before you entrust the safety of your child to any day care, in-home or otherwise, take the time to ask these important questions and ask the day care owner to provide the documentation to back it up.
January 28, 2014
By: Jonathan A. Knoll, Attorney
If you have been watching television lately, then you probably have heard about a treatment advertised as a way to boost men’s energy and health. This treatment, called low testosterone therapy, is being marketed to men over the age of 30 as a way to increase their muscle mass, boost their sex drive, and improve their energy. Options for testosterone replacement include an injection, patch, pellets, and a gel.
What does it mean to have low testosterone and how is it diagnosed?
- Loss of interest in sex
- Fertility problems
- Tiredness and lack of energy
- Loss of bone density
- Muscle weakness
- Loss of body hair
While testosterone replacement therapy sounds like a faster alternative to dieting and exercise, it’s important to take a step back and ask yourself two simple questions. First, is low testosterone therapy necessary for me? And second, what are the risks?
(1) Is low testosterone therapy necessary? Testosterone helps maintain men’s bone density, fat distributions, muscle mass, and sex drive. Low testosterone levels can occur due to, for example, lack of exercise, a poor diet, and not getting enough sleep. Addressing those factors are positive steps that you can take to help prevent low testosterone and improve your overall health.
(2) What are the risks of low testosterone therapy? A study released in the Journal of the American Medical Association found that men using a low testosterone treatment had a nearly 30% increase risk of stroke, heart attack, or death compared to men who did not receive a testosterone treatment. Additionally, one news article notes that doctors are cautioning men who might want to have children to not use testosterone therapy.
Some risks to testosterone replacement therapy may include:
- Prostate enlargement
- Possibly stimulate growth of existing prostate cancer
- Increase risk of heart disease
- Shrunken testicles
- Lowered sperm count or sterility
Dr. Ryan Terlecki, a urologist at Wake Forest Baptist Medical Center talks about this increase of awareness and desire for testosterone therapy treatments and says, “testosterone therapy isn’t a substitute for taking care of overall health.” If you are considering whether low testosterone therapy is right for you, be sure to consult with your doctor about the risks and benefits. It may just be that a healthier lifestyle is the safer and better prescription for you.
January 23, 2014
Forced Arbitration: How Bad Business Avoids Accountability — And Makes Millions — at the Expense of the Public & Fair Business
By: Vess A. Miller, Attorney
The right of every person to an open and public jury trial of his or her civil case is so fundamental to the American system that the Founders made it the Seventh Amendment to the Bill of Rights of the United States Constitution. But, today, Bad Business is using forced arbitration to make it so that no case can be brought in open court—a practice even the most business-friendly organizations, like the Wall Street Journal, now have to admit is unfair.
The Seventh Amendment was passed to protect the “right of trial by jury” in civil cases (cases about money and injuries, not crimes). The original reason for the Seventh Amendment was to protect the People from judges deciding every court case, without letting a jury decide. The People at the time of the Revolution distrusted the judges because the judges were appointed by the King of England, and the People felt the judges favored the King’s side, not the People’s side, regardless of the facts of any case. To fix this, the States passed the Seventh Amendment so that juries would be in charge of deciding right and wrong in civil cases. If you can convince 12 randomly-selected people that someone harmed you, then you can recover. You shouldn’t have to worry about not getting your day in an open and fair court or before a judge that has to cow-tow to a King, the People said.
Fast-forward a few centuries, and the latest assault on the Seventh Amendment is by Bad Business and is aimed not at keeping decisions out of judges’ hands, but at keeping decisions out of court altogether. To do this, Bad Businesses make customers promise (often in tiny print in the middle of a long contract that no one ever reads) that in exchange for a normal transaction worth a few to a few hundred bucks, the customer will never go to court against the business. Not if the business poisoned the customer, not if the business charged the customer illegally, not if the business chopped off the customer’s right leg—never, under no circumstances, will the customer ever get a day in court. And there’s no way to opt out—take it or leave it. These forced arbitration clauses write Bad Businesses millions of Get Out of Jail Free cards from the entire civil justice system—something not even the King of England tried to do.
But Bad Business has lots of advocates to try to justify its self-serving forced-arbitration system—often by trying to pit victims against the lawyers who help them. For example, on December 23, 2013, the Wall Street Journal ran a story decrying that only “plaintiffs [sic] attorneys—and their yacht builders” would benefit from class action lawsuits, which are lawsuits brought to help thousands or millions of consumer who have been wronged by a business and who seek to hold that business accountable. Class action lawyers bring these cases at their own expense and receive a percentage of the recovery that often would never occur without them. The Wall Street Journal cited a faulty study by the U.S Chamber of Commerce, which has even supported a loansharking payday lender in its bid to avoid ever answering for its lending activities.
But even the Wall Street Journal later had to recognize that forced arbitration can be devastatingly bad for thousands and thousands of people. Recently, WSJ acknowledged that forced arbitration was the reason thousands of U.S. Servicemen could not get any justice when they were taken advantage of by illegal loans that payday lenders made. Hefty Bank Fees Waylay Soldiers. Courts can decide which class actions have merit and which do not, but if class actions in public court can never be brought, then even the Wall Street Journal must acknowledge that there will be many victims who can get no justice, just like those U.S Servicemen.
In very large transactions between large and powerful companies who may want to keep dealings between themselves secret, arbitration might make sense. But for the normal world of transactions between powerless consumers and powerful big businesses, if we take away the light of day that open and public lawsuits bring, we will not only encourage more Bad Business, we will encourage more economic victimization and less of the open and fair system of justice that was envisioned by the Seventh Amendment when this country was founded.
January 14, 2014
By: Maggie L. Sadler, Attorney
January is often touted as “Divorce Month” due to the influx of divorce filings at the start of the new year. So why the flood of filings? The holiday season can cause a lot of stress for couples due to mounting expenses, spending increased time with extended family and in-laws, and the pressure of meeting social and professional obligations for attending get-togethers and parties. Kids add more stress to the equation as they also have gifts to purchase and events to attend, which often require additional money. The holiday season can often serve as “the last straw” if tensions have been mounting throughout the year. We also frequently hear the story that one spouse decided to divorce later in the year, but waited to file until after the holidays to avoid rocking the boat for children, family, and friends.
January brings with it a feeling of new beginnings. While some may make a resolution to ride it out another year, others decide it’s time to call it quits. Filing for divorce can signify a fresh start. Filing in January can also greatly increase your chances of having the divorce finalized by the next holiday season, particularly if you have children or a complicated estate.
If you are considering filing for divorce, here are answers to some of our frequently asked questions:
• Does it matter when I file?
When you file can have financial implications. The date of filing operates as a snap shot of your financial standing for the divorce. The court will value your marital estate based on the date you file for divorce.
• What if all of our bank accounts are separate?
In Indiana, all assets are pooled in the marital estate. The state has the presumption that assets will be split 50/50, regardless of whose name is on the account.
• What happens while the divorce is pending?
The court can have a hearing on preliminary matters, or the parties can reach an agreement on the issues. This agreement can include parenting time and other child related issues, who will remain in the marital residence, who will be responsible for what bill, and who will drive what car.
• Will I have to go to court?
It depends. Many divorce cases settle outside of court through informal settlement negotiations or mediation.
• Why do I need a lawyer?
There is more than meets the eye in a divorce. Failing to hire an attorney can mean that you lose out on some of your rights. Many people are unaware of what they are entitled to out of the marital estate. Spouses frequently come in claiming that they are in agreement on all issues, but once an attorney starts asking the hard hitting questions disagreements can come to light.
It is particularly important to hire an attorney if you have children involved. Attorneys can facilitate negotiations and alleviate the potential for adversarial confrontations regarding the children.
Of course, everyone’s situation is unique. The decision to end a marriage is a very personal one and the time of year makes little difference in the outcome for the parties involved. If you are considering filing for divorce, it is important that you speak with an experienced family law divorce attorney who can advise you of your legal rights and options.
December 26, 2013
by: Lynn A. Toops, Attorney
The FDA recently announced a proposed rule change to make manufacturers of antibacterial soap prove that these products work as advertised. This move comes after research studies have indicated that Triclosan, a common active ingredient in antibacterial products, is no more effective than soap and water at ridding of germs and it might be dangerous. A concern is that many of these antibacterial soap makers advertise that their products are more effective than soap and water.
What does Triclosan do?
Triclosan is a synthetic broad-spectrum antimicrobial agent used in a variety of products from soaps and deodorants to toothpastes and fabrics. It was originally used as a surgical scrub in the 1970’s because of its antibacterial properties, but it also offers some antifungal and antiviral benefits. Hospitals use Triclosan to help reduce the occurrence of healthcare facility-acquired infections.
A study was conducted in 2004 at Columbia School of Nursing by Dr. Larson et al., to examine the health benefits of Triclosan use in average households. That study of over 200 households found that antibacterial products did not reduce the risk for symptoms of infectious disease. Following this study, the Centers for Disease Control and Prevention stated that antibacterial soaps are not necessary in everyday use and that washing hands with ordinary soap and warm water is an effective way to ward off infections.
Concerns about Triclosan
Consumer safety groups have long questioned the use of Triclosan in antibacterial products. Recent studies focused on the possible health impacts of Triclosan have shown the chemical disrupts sex hormones like estrogen and testosterone, as well as thyroid function in lab animals. The FDA’s recent move to change the rule so that manufacturers are required to prove their claims will better protect consumer health and safety.
Class action lawsuits have been filed against makers of antibacterial soaps that incorporate Triclosan as an active ingredient. In January 2012, plaintiffs in ten different states filed a class action lawsuit against The Dial Corporation, the manufacturer of Dial Complete Foaming Antibacterial Hand Wash, for unfair and deceptive trade practices and breach of warranty related to the company’s claim that its antibacterial soap is more effective at washing off germs than regular soap and water. This lawsuit is currently pending.
In June 2013, a similar lawsuit was filed against Colgate-Palmolive, the manufacturer of Softsoap Antibacterial Handsoap. Plaintiffs across six states claim the maker of Softsoap Antibacterial Handsoap misrepresented its product as more effective at washing off germs than soap and water alone. This lawsuit is currently pending.
Sales of antibacterial products top $1 billion annually. This industry stands to lose considerable profits if this rule change takes place and the industry continues to argue a measureable benefit to its products that contain Triclosan. However, most studies indicate no additional benefit can be found by using products containing this antimicrobial. There is a six month time period in which the public is welcome to comment to the FDA regarding this proposed rule change. After that time, the agency will allow a rebuttal period before a final rule is published.
December 16, 2013
By: Jeff S. Gibson, Attorney
In November, the FDA announced it would begin the process of changing its rules to allow generic drug manufacturers the ability to update product labels with safety warnings and new information. This action follows much debate about the responsibility of generic drug manufacturers in patient-safety matters.
Two recent U.S. Supreme Court rulings PLIVA, Inc. v. Mensing and Mutual Pharmaceutical Co., Inc. v. Bartlett held that state law failure-to-warn claims and state law design-defect claims against generic drug manufacturers respectively were preempted by the federal requirement that generic drug labels and warnings be identical to the brand name counterparts.
The requirement that generic drug labels be identical to the branded drug stems from the FDA’s approval process for generic drugs. Because generic drugs have the same active ingredient, strength, and dosage form as their brand name counterparts, the agency requires that labeling be identical. The intent is to reduce confusion in the administration of generic drugs. However, this rule places consumers at a higher safety risk.
Consumer Risks and Safety
Because of the current regulation governing generic drug labeling—that the generic label match the brand name label– if the FDA discovers a large number of adverse events are being reported associated with a particular generic medication, the manufacturer of that drug cannot change its label to reflect this danger. Compare that to the opposite situation.
If a large number of adverse events were reported with a brand name drug, that manufacturer would have the ability to change the safety label to warn patients and doctors. The change to the branded drug label would trigger the necessary change to the generic drug label. Given the fact that 80% of the prescriptions filled in the U.S. are generic drugs, the current regulation places consumers at a higher patient-safety risk.
From a consumer safety standpoint, this proposed change can have a positive impact on the quality of healthcare for millions of Americans. From a legal standpoint, it allows consumers to hold generic drug manufacturers accountable for the safety of the products sold on the market.
A 60-day comment period is open to the public regarding this proposed rule change. In mid-January 2014, the FDA will move forward with its proposal. More information about this rule change can be found on the agency’s website.
If a person suffers a serious injury as a result of taking a dangerous drug, there are legal remedies they can pursue regardless of whether the drug in question is a branded or generic medication. A knowledgeable product liability attorney can evaluate the claim and explain your legal rights and options.
November 19, 2013
by: Maggie L. Sadler, Attorney
If you take inventory of your friends’ relationships you will most likely find a few couples that are living together. Cohabitation can often mean joint bank accounts, joint purchases, joint contracting, joint debts, and of course, joint puppy or kitten purchasing. All of these joint transactions can have legal implications in the event of a split.
What happens when a relationship ends? In a divorce, there is a presumption that all of the assets and debts accumulated during the marriage will be split 50/50 between the parties. Cohabitating couples that break up are subject to no such presumption. This means that property you accumulated together during the course of the relationship can be divided unevenly, and often with one party getting the short end of the deal.
One reason for concern is that many cohabitating couples contribute financially to the property that is titled in only one party’s name. For instance, the parties may both pay the mortgage on the home purchased by one party prior the commencement of the relationship. In the event of a break up, the contributing party that moves out has no automatic right to share in the increased value of the property or in the equity gained on the home. Even if you were contributing to your boyfriend’s savings account for the benefit of the couple, or to save up for a big vacation, you won’t get the benefit of that bargain without a fight.
You can litigate your rights through various contract-like actions. However, a more efficient way to protect yourself is through a cohabitation agreement. A cohabitation agreement spells out the rights of the parties while they live together and in the event of a break up. These agreements can get into the minute details of daily life, such as which party will be responsible for the grocery bill and which party will be responsible for the utilities. For those more interested in the big ticket items, cohabitation agreements can spell out the rights of the parties pertaining to property acquired. A cohabitation agreement can act to give rights in property that are not otherwise recognized, or it can act to restrict any interest in property rights. Meaning, you can give your boyfriend rights to the home you own that he pays part of the mortgage on, or ask him to waive his rights in any contribution made to the property in the event of a break up.
When a relationship progresses to the level of moving in together, it is important to consider issues like the ones I mentioned above. The costs of delaying marriage can be great if you don’t take measures to protect yourself.
November 5, 2013
by: Edward B. Mulligan V, Attorney
The United States witnessed the largest outbreak of health-care associated infection in history last year. Methylprednisolone acetate (MPA) injections produced by the New England Compounding Center (NECC) and shipped to pain clinics and hospitals were later found to contain E. rostratum and A. fumigatus and are blamed for causing hundreds of people to become sick, and in some cases, die. To date, the CDC has received 751 reports of confirmed fungal meningitis and other infections associated with the outbreak as well as 64 reports of death. One CDC report estimates that as many as 13,000 people have been exposed to the contaminated steroid injections linked to the outbreak.
Fungal meningitis is an inflammation of the membranes that cover the brain and spinal cord and is typically contracted when fungus enters the bloodstream or is introduced directly into the central nervous system. It is very rare and it is not contagious. Symptoms include severe headache, neck stiffness, fever, and light sensitivity. If left untreated, fungal meningitis can lead to death. Diagnosis of meningitis requires a blood sample and/or spinal tap, a procedure where a physician inserts a needle into the spinal cord to take a sample of the fluid for testing. Spinal taps are extremely painful and risky. A negative spinal tap does not always result in a free-and-clear diagnosis. Some illnesses may take a while to develop and may not show up during an initial test. As a result, many patients must endure months of anxiety and painful testing procedures before they can be cleared.
The treatment of fungal meningitis can be long term– lasting several months or years depending on the patient– and invasive. For example, high-dose antifungal medications administered through an IV are necessary to treat infected patients. These treatments can cause side effects including nausea, diarrhea, and fever. Some antifungal treatments can also cause serious damage to the kidneys. Some of the patients who contracted fungal meningitis as a result of this outbreak were interviewed by CBS’ 60 Minutes and talked about their initial fear when the news was released and the pain they have endured throughout their treatment after diagnosis was confirmed.
Recently, the CDC issued two reports concluding that the initial response by public health care officials and healthcare professionals to affected patients was crucial in reducing the severity of the outbreak and mortality rate associated with it.
Even with this rapid response, however, many patients still contracted fungal meningitis and other infections and still suffer today. Sadly, this response also did not prevent the death of more than 60 people. The recent CDC report also states that while many of these affected patients have completed antifungal therapies, relapses of infection are still possible. In some cases, antifungal treatments have merely stabilized or provided only slight symptom improvement to infected patients. Further monitoring will be required even after symptoms have subsided.
To study the long-term impacts of this outbreak, the CDC has also contracted the University of Alabama at Birmingham to monitor people who were infected by this outbreak. The study is scheduled to run through 2015. The agency hopes to gain a better understanding of appropriate treatment time, best treatment options, and relapse rates.
Hundreds of patients who were exposed to these contaminated methylprednisolone acetate injections and suffered injuries have filed or plan to file claims against the NECC compounding facility and other affiliated companies and individuals. These lawsuits are currently pending in the United States District Court and Bankruptcy Court for the District of Massachusetts.
The Bankruptcy Court has established a fast-approaching claim deadline for those who received contaminated shots. As a result, anyone who received a contaminated injection and wishes to file a claim against the NECC compounding facility must file specific documentation required by the court quickly in order to preserve their claim against NECC.