ACTS law hour – Episode 3

Episode 3 – 10.28.17

 

Episode Highlights:

      • Sex Abuse Cases and what to do
      • Negligent Hiring and Negligent Supervision
      • Product Defect
      • Nutribullet Cases

ACTS law hour today with:

Danny Abir

Partner

E-mail Attorney

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Douglas Rochen

Partner

E-mail Attorney

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Listen to the show

Read the Transcript

Lorraine Love: Good afternoon, Los Angeles. This is TalkRadio 790 KABC. Welcome to the ACTS Law Hour, heard every Saturday at noon, providing you a solid information from our good friends at Abir, Cohen, Treyzon and Salo, the ACTS Law Firm. That’s A-C-T-S Law. Find them at actslaw.com. If you have questions about sexual abuse or product liability or anything related and you don’t know where to turn, you can call now: 0800-2225222. Knowledge is power and power is knowledge. The ACTS Law Hour wants to empower you today. I’m Lorraine Love and now, here’s the host and managing partner of the ACTS Law Firm, Danny Abir.

Danny Abir: Good morning, Lorraine.

Lorraine Love: Good morning, [cross talk] how are you?

Danny Abir: How are you?

Lorraine Love: Good, how are you?

Lorraine Love: I’ve been missing you for a couple days.

Lorraine Love: I know, I know, I was traveling.

Danny Abir: Welcome back.

Lorraine Love: Thank you, good to be back.

Danny Abir: Good to have you.

Lorraine Love: Thanks.

Danny Abir: I want to say hello to all our listeners, as well as our engineer Frank. Hey, Frank.

Lorraine Love: Hey, Frank.

Danny Abir: I want to introduce my partner, Doug Rochen. He’s [unintelligible 00:01:13] been with us for four months now and I want him to introduce himself and tell us a little bit about himself.

Doug Rochen: Hey, Dani. Thanks for having me here.

Danny Abir: Good to have you.

Doug Rochen: I’ve been practicing law for about 17 years. I started on the defense, doing different types of cases. Anything from product failures to trucking accidents and then, about six, seven years ago I made the transition from the defense to go over the plaintiff side, where I started helping consumers with their individuals claims. My career sort of morphed from there into multiple discipline of areas, including, most recently, starting to do a lot of more in the area of sexual abuse with minor children. I’ve been focusing primarily on catastrophic injuries and helping those who cannot necessarily help themselves.

Danny Abir: What about–

Voice over: Talk Radio 790 K–

Danny Abir: [laughter] One of the things that we thought we can talk about initially, and it’s funny because it was on the news right before in the intro to the show, it’s what’s going on in the world today, with Harvey Weinstein, with Bill O’Reillly, with Bill Cosby. All these things that are coming got as far as sex abuse cases and sexual assault cases, both in terms of, in this case Hollywood, and the work place as well as– I think it’s a good segway to talk about, to get into the sex abuse cases that we do handle at the office, and you’ve experienced with, Doug.

Doug Rochen: Yes, you know you can really pass a day without something in the news that talks about there being a scandal. Or, if you comb the Internet and you look for words such as sex and school, then something is going to pop up within the last month. People are becoming a lot more aware of it. They’re starting to police it a little bit more, but the problem that we’ve had, and it’s something, hopefully, will continue to change is people weren’t talking about it.

They weren’t asking for help. They were too scared, they were to emotionally frail to come forward, and this is kind of the new era. We talk about Harvey Weinstein, it started with one person who told about her story, was in The New York Times, I believe. Then, all of a sudden, we are at 60 people that talked about how he has made this a pattern. It’s not unique. Normally when you find one victim, there’s almost always multiple and it’s a matter of how far back you can trace those victims to see how long the conduct has been ongoing.

Danny: One of the common denominators when you look at the stories and you read the articles and you look at the interviews is that every one of them was ashamed to common forward, or scared to forward, and they didn’t feel comfortable to come forward, and I think that’s the common denominator in a lot of the sex abuse cases as well. Regardless of whether– And it’s specially more common as far as children is concerned.

Lorraine Love: Well, I think a lot of times too– I mean, correct me if I’m wrong, but people seem to feel like, “It’s my fault”. Like, “What did I do to make this happen?”.

Doug Rochen: Yes, and it’s not uncommon too that the victims are always blamed, specially when it gets into litigation that you, somehow, encouraged the behavior, you didn’t say no enough. Children are kind of unique, depending on their age. Very young children, they may not be able to express to you the injuries they suffer, but their mannerisms and their behaviors would allow them to express to you that something happened. And as the kids get older, they’re able to be more expressive, but they may not necessarily comprehend everything that happened to them.

Which is why you’re seing a lot more people coming forward in their adulthood saying, “Look at what happened to me back when I was child and how it changed my life.” When I had one particular client, who– He was sexually abused when he was 11 and he ended up spending the rest of his youth and adolescence struggling. He got into drugs, he attempted suicide on multiple occasions.

Lorraine Love: How sad.

Doug Rochen: And his parents could never really connect the reason why, and then, all of a sudden, there was this aha-moment, twenty years later, when the teacher that had molested him, which the police never investigated back in 1991, was arrested for copulating another child. And then the Earth opened up. And the calls kept coming in of the number of people that this man abused over a 20 year period of time, because nobody was talking about it. Nobody was paying attention to the signs and the symptoms that you typically would see with a child that’s suffering from something like that.

Lorraine Love: Right. When people suppress it like that, because it sounds like that is very common, if they suppress it, is there a statue of limitations for that? How does that work?

Doug Rochen: Yes, the statue of limitation has been changing for a while.

Lorraine Love: Okay.

Doug Rochen: There’s been legislative efforts, they even extended further in California, which unfortunately has not happened yet. Statue of limitation is currently, as it stands, it’s eight years past the age of majority, which is 18 years old, or three years after the day of discovery, whichever is later. One of the way is that the suppressed memory, which is an equitable argument, has played in is, sometimes this people bury it deep down inside. They can’t come forward because is so hurtful to them.

And then they have an aha-moment. Something happens, they see the perpetrator arrested and all of the emotions and the angst, everything flush back. There are doctors out there that can actually diagnose suppressed memory. We saw that a lot with the Catholic Church cases, back in 1990s, and that allows the statue on the civil case to move forward. There’s another element too that also allows you to move forward with a claim, and that has to do with something called Equitable Estopple. It’s a big term to say, “I was in fear for my life, and the well-being of myself and my family because the threat was not gone.”

There was one case that I worked on that wrapped up last year where he attempted to report it to the police and then the day he reported it to the police, a man who actually molested him for five years said, “Don’t do that, don’t talk to them, I know where you live, I know where you family lives.”

Lorraine Love: Right, it scared him.

Doug Rochen: “It could cost you great harm.” And he walked away from it, until another victim finally came forth. She said, “This is not right.” And they family put him in jail. A lot of times too– I mean, that particular individual, he was 11 when it started. He was about 17, 18 when it stopped. This was his first sexual experience, and it was with a man. They have a major problem identifying their own sexual identity. Trying to have an understanding of why they are feeling these raw emotions. Feeling guilty that they allowed to happen but not feeling like they can address this adult in the room and say no. And it’s always secretive. “Make sure you don’t tell anybody. It’s our little secret, you’re my special friend”.

Lorraine Love: Right, and if you do I’m going to hurt you or your family or there’s going to be huge ramifications. You’re scared.

Doug Rochen: Or you can get in trouble. I’m going to tell your mom and dad.

Lorraine Love: Right, you wanted this too. Right.

Danny: Even when they’re adults, we are talking about the sex trafficking cases. They use threat.

Lorraine Love: Totally. A year ago I interviewed Ashley Judd and I went to Nashville and I did a radio show with her. We did the interview and she came out and talked about how she had suppressed for years her sexual abuse. In doing that radio show I also made a friendship with a girl, who she was a sex trafficker. She went from Oregon, a guy that was her boyfriend and he said, “I’m a record producer, I need to move. You with me, to Vegas.” And the minute she got to Vegas it was like, “Now you are my slave, you’re my sex trafficker. If you do anything, I’ll kill your parents.”

It’s a real thing and it’s a real deal that happens to this people. They are afraid and they don’t know what to do or where to turn, and it’s sad.

Doug Rochen: Yes, it’s a cell. Literally if one gets shot down by the police, another one pops out.

Danny Abir: Well, let’s talk about this during the next segment and talk about more in detail about six abuse cases. What it takes to get us to get a case successfully done and maybe more examples of what you’ve dealt with in the past, Doug, as far as the sex abuse cases are concerned.

Doug: That would be great.

Lorraine: You’re listening to the Acts Law hour. If you have any questions about sexual abuse or product liability or anything related to that and you don’t know where to turn, give us a call, we’re here to help. Call 800-222-5222.

All right. We are sitting here with Danny Abir I’m Lorraine live and we’ve also got Doug with us and we are talking about some different sexual abuse cases and I know we went the last break and we ended on that. I know you had a couple other things to say but when I had met with the girl that was sex trafficking, we were talking about all of that. One of the things that she said that was so interesting, she didn’t even know it was happening to her is she was being groomed. They were grooming her. What exactly does that mean?

Doug: Grooming is a behavior that the perpetrators typically try to do to get a child to fall into the trap of being sexually abused, they become their friend. Sometimes they take a paternal or a maternal role model. They’ll buy them gifts, they’ll give them special attention, they’ll take them on vacations. They’ll give them what they may feel that they’re missing and then it starts with pressing the boundaries.

What may first start into like as a gentle hug or a slap on the butt becomes a longer embrace, to the come over to my house and watch a movie with me and we can play a game afterwards. Then the behavior continues to progress. By the time the child gets to the end of this, they’re stuck, they’re at a house or at a location where they’re alone with a man or a woman that is far stronger than them. Far more believable than them in the context of the child’s mind. They feel they have no other choice but to give in. By that time the child’s already been taught by whoever the perpetrator is, that they have no choices anymore, they’re just a child.

Lorraine: They trust them, right? That’s why they’re doing this grooming along the way, they trust them because they’ve put all these different measures in place to make sure they do.

Doug: We have a case that I was working on where there were a handful of individuals and their teacher would take them on basketball trips and would buy them video games and their parents were completely blind to it. The parents were working, the fathers were out trying to make a living. They would say, “Well, sure, come and take my child to a UCLA game.” All the while he’s grooming his children to take advantage of them.

What’s surprising to everybody is when he was finally convicted and one of the victims finally got him recording saying that he did something inappropriate, they were in disbelief. They were like, “That couldn’t have happened to me.”

Then the pictures from his hard drive became a matter of the investigation and these boys had to sit down and look at these photographs where they were demonstrative of them in compromised positions with him when he was in a hotel room with them on these various trips.

Lorraine: They had no idea the pictures were being taken?

Doug: They had no idea.

Lorraine: Oh my gosh.

Doug: What makes this particular situation even worse is the school knew 20 years ago. When he was a softball coach and he was a teacher’s assistant, they got a phone call from one of the local sheriff’s officers who said, “Guys, we don’t have enough to convict this guy. We don’t have enough to prosecute him but you need to be aware of the fact that there is a boy who’s come forward who has said that they were inappropriately touched by this man.” That police record ended up in his personnel file. They never followed up on it.

Lorraine: They never did anything.

Doug: They hired him as a full-time faculty member.

Lorraine: Oh my gosh.

Danny: How do you hold the employer liable in a place situation like that?

Doug: That’s really good question, Danny. People don’t understand the law in this area because unlike if it was a truck driver who run somebody over, you could hold the employer liable for that negligent conduct. In the area of sexual abuse, there is no such thing as vicarious liability. What that simply means is that you are responsible, you the employer are responsible for your employee’s conduct. If a teacher molests a child, the school would not necessarily be culpable for it

Danny: It’s an intentional act.

Doug: It’s an intentional act correct. The way that you figure it out whether or not they have liability is their own independent negligence. It really falls into three categories. Did they negligently hire this person? Did they negligently supervise them? Did they negligently train them?

In the example that I just gave you, they hired him as a full-time faculty member knowing that there was allegations of childhood sexual abuse. Then they allowed him to have unsupervised overnight trips with young boys. These young boys were so en wrapped in his grooming behaviors that they actually became his godchildren. It wasn’t till after this whole thing opened up that they didn’t know about.

You’ll learn through the process of everything that the school should have known. It’s not that they had to actually know, it’s what they should have known. There was another case that I worked on not too long ago where the teachers, of course, are saying, “We had no knowledge, there was no understanding that this could have happened.” Then we found out that the teachers were aware of the fact that this volunteer was allowing this person to take their children to his home to jump on his trampoline. That was the beginning of the grooming process. The kids would come over, he would isolate them on his trampoline. He would then say, “Let’s go do some wrestling moves, you could practice your wrestling moves.” Then it proceeded into very inappropriate sexual misconduct for years and years and years.

The school knew and they actually admitted that, “Well, that probably was not appropriate. We should have not said something, we should have come forward and been like, Yes, you can’t do that. Under no circumstance should you ever be alone.”

There’s a lot of school districts now, specifically at schools that are putting parameters in place that say you will never, ever, ever be alone with the child. It’s for safety reasons. It’s the same reason why we look– There’s been a lot of hype with police officers taking advantage of our general public. There was a case down in San Diego with Officer Revelo, who was accused and subsequently convicted of molesting people that he had pulled over.

I worked on a case in a different jurisdiction where it was this same sort of thing. He was pulling people over for an improper purpose and he was improperly touching them. That is a unique scenario because if it’s an officer or somebody who’s got that kind of color of authority, that’s the only exception that allows you to hold the employer liable 100%.

Danny: I think one of the biggest issues is the negligent hiring and negligent supervision. Even when they find out, a lot of times they turn a blind eye. They don’t do something about it even after they find out. Such as the Catholic church cases, where they would actually move around the Priests after they find out to cover up, basically, the issue as opposed to getting them out of that circulation or rotation. This happened within a lot of sex abuse cases where the employer, they find out or maybe the supportive school finds out, but they hush-hush it because they don’t want it to come out.

Doug: Yes. Specifically, the school situation, they’re mandatory reporters. They have an obligation by law that if they have knowledge or suspect that something’s happening to this child, they have a mandatory obligation to report it to the police for an investigation to take place. I think hopefully through education and through awareness, that the school districts and the other people in these scenarios that they are governing children are starting to pay a lot more attention to it, and watching for the signs and symptoms.

Danny: One of the things with when you’re– If the school’s a public school, you’re suing a government identity. There is a government claim statue that you have to file a government claim before you can file a complaint. How does that factor in terms of the statue of limitations into cases like this?

Doug: Very, very interesting question. It really depends on when the conduct occurred and here’s why. In 2009, the law changed. Any conduct of sexual nature that occurs to a minor child, that occurred after 2009, no longer requires a government claim. If it occurs prior to 2009, there’s a requirement that there be a government claim. That unfortunately also gets kind of wonky because it depends on when the claim accrues. It’ll apply things like delayed discovery and Equitable Estopple to make arguments that the claim didn’t accrue until the child was aware that the conduct was wrongful.

It really depends and it’s very fact determinative. Sometimes we’re looking at cases where the conduct occurred 1980s, 1990s, and then they don’t have their ah-hah moment until 2012 or 2015 or today. You have to do a very in-depth analysis to say, “Okay, which law applies?

Do we have the requirement that they have been a government claim? Can there have been a government claim that would’ve been filed? Or are we untimely and just can’t do anything?” It’s unfortunate that we can’t help everybody. There’s sometimes– there are people out there, even in the context of our current news, with all these claimants we have against Harvey Weinstein, that they may not have recourse at the end of the day because of statue bars on the civil side.

Danny: Yes, that’s a big distinction by the way. One of the things that we’ve talked about, Doug and I, before the show was the Bill Cosby case in Montgomery County. This was a criminal trial as opposed to a civil trial. A criminal trial and a civil trial have a different statue of limitations and that’s a big factor that people need to keep in mind in cases like this.

Doug: Yes. The prosecutorial for a crime, it depends on which state it occurs in and it varies based on the evidence they have.

Lorraine: Many people have come to me and said, “Oh my gosh, everything going on with Harvey Weinstein. Is he going to be prosecuted or are they going to be able to do anything? Is there any ramifications for what he’s done?”

Doug: Well the ramifications I think has to do with his career at this point. We already know that he’s been dropped from his company. I believe it came out that William Morris Talent Agency, which has been his book publish– No, excuse me. That was Bill O’Reilly. I found that out yesterday that they’re not going to renew him for anything [unintelligible 00:25:12]. Harvey Weinstein’s career is probably over.

Lorraine: But criminally?

Doug: But criminally, we just don’t know yet. Fortunately or unfortunately for these victims, there are people that come forward every day.

Lorraine: Right. Exactly. Alright, we need to take a really quick break, but when we come back we’re going to talk a little bit more about sexual abuse cases and everything going on with that. You’re listening to the ACTS Law Hour on KABC 790 AM.

[Music playing]

Voice over: Has your home or business suffered a loss? Getting the run around from your insurance company? Take action. Call the attorneys from ACTS LAW now at 800-222-5222.

Lorraine: You’re listening to the ACTS Law Hour. That’s A-C-T-S-Law and if you have any questions about sexual abuse or product liability or anything related and you don’t know where to turn, go ahead and give us a call right now at 800-222-5222. Now here he is, Danny Abir.

Danny: Okay Doug, let us talk about damages and let us talk about how do you quantify damages in a case like this? For example, in a case where you have a catastrophic injury, somebody loses there job or they can’t work anymore. You can quantify economic damages. How do you quantify damages in a situation like this, especially in a case of a child?

Doug: It really depends on the case. Damages are fairly unique and it also depends on the age of the child. First, you have to identify what are the damages and it will actually change depending on the age of the child. If you have a five-year-old, for example, someone who’s not going to able to necessarily express how they feel inside, they don’t have the emotional ability to be able to tell you how it’s impacted their relationship with others. They’ll have other signs and symptoms, like, they may regress, they may start bed-wetting. Sometimes they mirror or they mimic the behavior. They tried to do what was done to them on somebody else.

It becomes ingrained in their behavior. Oftentimes when we’re talking about perpetrators, invariably in their history they have been abused at some point time. There’s been studies that have shown that. We have to figure out when we’re looking at these victims is how much did they suffer and how long did they suffer as to the terms and the effects of that. If a child’s brand new into their adolescence, they are 11 eleven years old, they’re still trying to identify themselves sexually and as a man or a woman. They get put into this position where they have a sudden have confusion.

They don’t know how to identify with the opposite sex, they don’t know how to identify with their peers. They feel isolated, they feel depressed, they feel dirty, they feel scared, they feel like they’re at fault.

We utilize experts to help figure out what those are. We talk to psychologists, we talk to social workers and other people that are trained professionals to say, “Okay. How has this impacted this individual? How can we help them get through it?” It’s never supposed to be a form of punishment. The money is not supposed to punish the person. The punishment is done when the perpetrator is put in jail in the hopes that they never ever come out.

The money that’s sought in a civil case is to help balance what they lost because of what happened to them as a child. Pay for psychological counseling, pay for family counseling, pay for relationalship counseling to help facilitate their introduction to society. Sometimes there is medical treatment. There is one particular individual that I worked with who had very very serious abuse to him and he attempted suicide 14 times unsuccessfully but they were all real attempts that stemmed from this abuse.

There is psychiatric care that they would need, medical attention that they would need, follow up care they would need. Sometimes we even talk about biofeedback or other type of inventive new cutting wage technology, hypnotherapy. These are long-term, long term situations. That’s just on the technical side of it. Then you also have the emotional side of it. We have to quantify what is the pain that they suffered? What is the grief? The humiliation, the depression, all the feeling words that we want to try to quantify, what were they going through when they were 11? When they were 12, when they were 13?

All of a sudden you’re now here, they’re 26 and they’ve suffered 10 plus years of past abuse of feeling worthless, of not being able to identify themselves, of having failed relationships, of getting caught with drugs because they’re trying to repress their feelings. How does that translation– going forward, how are they going to deal with their spouse or significant other or their children? How are they going to interact with their bosses at work? What is the value of that? That’s what we’re asked to do.

Lorraine: I’m sorry, do they after they get the treatment and all that, has it been– what do you think, have they’ve been able to hold a job? Have they been able to come into society and be okay after a long-term treatment? What has been your experience with that?

Doug: It really depends on the structure of the individual. Stronger family structures tend to get through it. Weaker family structures, not to say that they’re weak but maybe it’s not nuclear or their parents are not helpful, they have a hard time. I had one particular client and his life spiraled. He got into major problems, he ended up in juvenile detention. That’s not uncommon. He had major problems with drugs, not uncommon. He has a failed marriage, he’s just trying to get by. That’s part of the way that we have to deal with it.

Danny: It’s funny because one of the questions that commonly comes up is people say, “Okay, 30 years has gone by. If you bring a lawsuit, if you follow up after at this point, then as you can imagine, these cases can be lengthy, can be painful for the person who’s bringing it. What is it? What’s the purpose of bringing it at this point? 30 years has gone by and in a way that’s the answer to the question. They’ve suffered for 30 years because of this, even though they may not have said about that.

Lorraine: They suffered in silence.

Danny: Yes, exactly.

Doug: In most instances, if you talk to the victims, it’s almost always that they want closure. I represent-

Lorraine: What is that closure to them.

Doug: Closure to them is allowing their voice to be heard. When we talk about the Weinstein victims, it’s the same thing. They may never reclaim but they’re going to get closure by saying, “Yes, it happened to me too” There’s been a trend on Facebook over the last couple weeks where people were going #metoo and it was to raise awareness that women have been victims of sexual harassment. They never talk about it, they never come up and voice their concerns. I had one particular client, he had no right of recovery financially on the civil side. He did, however, have the ability to put his perpetrator in jail.

As I said and I told him that I don’t think that we can get him a recovery in the form of compensation to help him, he cried. He said to me, “But I got to help other people and I feel like I’ve now told my story and I get to close that chapter my life.” Fortunate for him, he has a strong family and he had a lot of guidance. He now calls me, I heard from him about a month ago telling me that he’s now social worker helping other children and being able to share his story in a school district. He knows that no other persons moving forward can be victimized like he was.

Lorraine: That’s powerful.

Danny: Well, Doug is going to come on the show with me again in a few weeks and we’re going to talk more about sex abuse cases and possibly if we can ask somebody else to join us to had these experiences. Maybe that will make it a very interesting discussion. One of the other areas of practice and expertise for Doug is catastrophic personal injuries, especially, as they relate to product liability cases. Product liability cases as we alluded to in the first show that we had a few weeks ago includes [unintelligible 00:36:59] a case that we are currently prosecuting in our office.

At the same time, we’re following up and we have over a couple dozen cases in the office.

It also includes automaker, or auto manufacturing, like, auto cases where there’s a problem with a car or a motorcycle and there’s something wrong with the manufacturing. Let’s talk about that a little bit and let’s talk about what exactly takes us [unintelligible 00:37:24] cases. What do you think is the problem with the Nutribullet case, the [unintelligible 00:37:31] itself, the machine.

Doug: The Nutribullet machine from our perspective has a flawed design. The way that you establish product or strict product liability, which is what it’s under the law is there are three elements. There is manufacturing, which is when it was made by the factory, it was made wrong, such that it would fail. Then there is design, which is you made it according to specifications but your design is flawed and it will fail causing injury. The last element has to do with warnings, which is the warning sufficient to cure a flawed product?

As an example, if we placed a warning on the pinto when it come out that, “This car can blow up. Please be careful.” That does not address the problem with the with the manufacturing or the design of that particular product. Now Nutribullet is a capsule. It has no ability to relieve pressure. We have now learned through the process a very very difficult discovery that they have known about its failures since as early as 2014. I suspect it’s probably even earlier.

The Nutribullet is much like a bullet, it builds a pressure through thermal force and actual force to a point where the pressure inside the vessel is so great that it has no other option but to explode at its weakest point, which happens to be the seal between the cup and the lid that contains the blade. We have about 20 cases right now that the firm’s prosecuting, with calls coming in almost every week. The failure of those are the same. It’s essentially an explosion where the cup shoots off into the air. We have one that we’re now aware of that the cup shut off with such force that it punched a hole in the ceiling of one of the person’s houses that were using it.

Danny: Imagine buying a blender and one of the potential dangers that you have to face is that it’s going to explode to the level that it’s going to blow a hole through your ceiling. I don’t think you buy a machine knowing that something like that may happen. Let’s go to our break. After that, we’ll come back and give some examples of some of these twenty something cases that we have as far as the different injuries and how it happened, then how this basically has destroyed some people’s lives, including a couple of our clients and how we can be more careful as far as how we use the machine.

Lorraine: Okay. We’ll address that when we get back on the product liability stuff. You’re listening to the ACTS Law Hour, that’s actslaw.com.

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Voice over: Welcome back to the ACTS Law Hour, helping you stop insurance company abuse at 800-222-5222.

Lorraine: You’re listening to the ACTS Law Hour. I’m here with Danny Abir. I’m Lorraine Love. We’re also here with Doug Rochen and we are talking about product liability and some really interesting stuff with the NutriBullet.

Danny: Let’s give some examples as to the types of injuries that we’ve seen. One of them is laceration which is — we have one of the cases where she actually cut the lower part of her hand and now it doesn’t have the use of one, definitely, and almost two fingers.

Doug: And I wouldn’t even qualify it — I think these are go far beyond being a simple laceration. Laceration is like a paper cut. A lot of these clients, their hands are mutilated because the blade is not cutting them straight through. There’s cutting all the way through the ligaments and the bones. There are several clients that needs surgical intervention. One of our clients will never regain use of her hand.

She will have remaining pain in her hand for the rest of her life. It will feel like her hand is on fire because of the nerve damage that has been caused by this product and that separated apart from the fact that these units through the forces that go through it, heat the inside material, whatever it is, up to temperatures that are beyond boiling.

When the cup separates from the base and explodes, the liquid inside is splashing on these people and they’re getting second degree burns over their face and over their necks, breasts, arms, any part that that liquid sprays on to.

Lorraine: As a consumer, how come we don’t know anything about this?

Doug: Because they’ve tried to keep it very, very quiet. You have infomercials out there. They’re fairly affordable. I believe the last time I looked at advertising, you could buy two of them for $89. America is trying to be a lot more health conscious which is the way that they’re promoting it. A lot of the clients that we represent are health fanatics, very much into making their morning smoothies with their kale, and their pineapple juice, and their B12 powder.

Danny: We have two yoga instructors.

Doug: Yes. We have a body builder. NutriBullet’s position has always been it’s a user error, that somehow the clients or the customers didn’t use it correctly.

Lorraine: Put it back on the consumer.

Doug: Now, what we know from some of the manual changes is we know they’re aware of the issue because they changed the language. I believe they think that changing the language is sufficient to cure them of any defects, but it’s not. Normally, when you have a defective product and it goes to a regular testing which is — it’s called failure mode analysis testing. You put it through a bunch of tests and did it fail when you were using it as you would expect a consumer to use it.

I have not been shown a piece of information or a document that demonstrates that they did any of that testing with this product. It’s not unique because I have 20 people right now that say that it occurred to them. I’ve now been identified another 45 people that it occurred to them. They’re aware of this issue. They just don’t want anyone else to be aware of it because, let’s be frank, it will affect their sales.

Lorraine: Right. In a product liability lawsuit case like this, in addition to what you’re trying to get for the plaintiffs for their damages and all of that, would it also be something that you would try to get to get this permanently off the shelf?

Doug: Absolutely. Underlying to getting off the shelf doesn’t help the victim. It doesn’t repair the damage that was caused to them.

Lorraine: The future victims, right?

Doug: But, it saves the community and saves the people that are out there that are using it. The number of people that I have talked to that owned one of these, and I would say if you had a conversation with three people, at least one of them will have owned it and/or know somebody who owns one. They will not be aware of the dangers associated with it.

If you look at a traditional blender, a traditional blender has a top and it has a little plastic piece on top, and what’s the purpose for that? It’s not so you can add liquids to it. It’s actually, God forbid, there’s some reason why your blender is working overdrive and there’s a lot of pressure that builds up, that little top will spill out. Some people had probably seen it before, there’s a little bit of leaks out.

That’s a much safer alternative because you only have to clean it up. It’s not causing you severe burns. It’s not cutting your hands off. In the NutriBullet, the cap is actually where the blade is located. When it blows up, you’re exposed to the blade and you’re exposed to the liquid inside because there’s no way for it to relieve pressure. It’s a very simple fix.

Danny: It also doesn’t have an on/off switch. You just read my mind. There’s no on/off switch on the NutriBullet. The alternatives have on and off switches where you push a button on that, at least it stops.

Doug: Yes, and they don’t want — right in their manual, they say, please do not use this for more than a minute. At first, it said, don’t use it for more than a minute because it could damage our motor. In the most recent manual, it says, don’t use it for a minute because it could damage our motor and it will increase the thermal pressure in the unit. Please point it away from you when opening. Okay?

There’s other ways to fix this. If they don’t want you to use it for more than a minute, put a timer on it. It’s not that expensive or even something simpler, put a pressure relief plug on it. If the pressure gets up to a point of being dangerous, the plug pops, the liquid leaks out, and there’s no problems.

Danny: One of the arguments most manufacturers make in product liability cases is “Listen, I’ve sold 40 million of these, and so what, a couple hundred of them have problems, but there are so many more who are enjoying this.” What do you say to that?

Doug: Yes. I always try to use the same analogy. First, it’s always under reported. Some people experienced it without any injury and they just say, okay, this clearly doesn’t work and say nothing about it.

Lorraine: Just throw it away, right?

Doug: Yes. Then, there are those who report it to the manufacturer, that actually suffered a mechanical loss but have no injury and they also are not put in the public eye and then, you have the ones that are physical injured and they ended up in the result, most of the time, with lawsuits. Those are the ones we become aware of.

If I put it as an analogy, if you have a bomb and you manufactured 40 million bombs, and I tell you I want you to hold this bomb that I have right here but one of the 40 million bombs potentially could go off and it will blow you up. Are you going to hold the bomb?

Lorraine: No. No. Danny are you going to hold the bomb?

Danny: Are you messing with me? Are you kidding?

Doug: It only takes– it’s measured on the amount of the risk associated with the design. Manufacturers have an obligation to produce a safe product for ordinary customer use and foreseeable misuse. The second part is probably even more important because as we all know, most people don’t read manuals and most people don’t necessarily know all of the ins and outs of the product when they start to use it. I would highly doubt that any of us here have ever gone and read their manual from cover to cover on their car.

Danny: As guys, we never read manuals. It’s just that’s in our DNA. Yes, exactly.

Doug: You get a little triangle on your dashboard on your dashboard, you are like, “What is that mean?”

Danny:  How many times has this happened to me? Actually, that’s when I actually have open the manual but the thing is this. Most of the time when you get a machine, unless you buy something from Ikea and you’re looking at them, most of the time you probably don’t even look at that to try to put it together. You try to do it yourself. You look at the manual when you have a problem. You rarely look at it beforehand. That’s one of the biggest things. By the time you have a problem, most of the times you don’t even know where your manual is. That’s the other part of it.

Lorraine: That’s a great point.

Danny: I was speaking to someone who said, “I actually learned how to use my NutriBullet it by looking at how it’s being used on a YouTube video, there are YouTube videos. I never opened the manually, I just looked at that.” YouTube video doesn’t tell you, “By the way, this can explode on you”

Doug: Information is really power. Most people get what they have through video and through looking at the product. If you have a NutriBullet and you take a peek at it, there’s very little information on the machine itself. It says, “Don’t touch the blade while spinning.” Well, that seems pretty obvious. In very very small white font on the back of this silver metallic blender that you can’t see if you’ve got even good vision, it says, “Do not blend for more than a minute.” Well, that’s really important to them that they don’t want you to use this for more than a minute of time. What are you doing about it? Why is it not bigger?

Why is it not more pronounced? It’s okay to put NutriBullet in big font across the blender, that doesn’t bother me at all but you want them to be significant with whatever warnings they’re providing about this machine may have problems if you use it more than one minute. Put it in black font, make it a little bit bigger. Put on top of the blending cover. You have to make the consumer aware of the issues. If you have somebody like myself who learns by watching, I’m going to be doing it by looking at the machine. I’m not going to go read the manual and try to figure out how it works. It has to be an assumption on behalf of most manufacturers that we don’t read.

If you took 20 of your friends and you polled them and you said, “Okay, how many of you when you buy a product, sit and read the entire manual to make sure you understand how the product works before you start playing with it?” I would bet maybe one out of those 20 people would do that. Manufacturers have to know that. If they don’t know that, they should know that. They have to then provide information through other means.

For example, NutriBullet has infomercials. Everybody’s probably seen them. If they really don’t want their stuff being used for more than a minute, they should talk about it when they’re doing the infomercial. “Please, when you’re using this, it only takes a minute. It’s less than a minute. You please don’t blend it for more than a minute”

Danny: We’ve actually seen some that this has happened to where it was less than a minute and then it exploded after less than a minute. Somebody actually in one of the things we saw said after six seconds of that blown up. But before we go, I want to tell everybody that one of the reasons we have this show is to educate you so that you know what your rights are. At the same time, we want you to be aware. Be careful if you have one so that this doesn’t happen to you and I think that’s going to be important.

Lorraine: I agree. Thank you so much Doug. This was so informative. It was so great and like we’ve talked about, right? Power is knowledge and knowledge is power and that’s what we’re trying to do. We appreciate all your stories and I know, I think Danny said you’re going to come back in a few weeks and that would be awesome.

Doug: Thank you, appreciate it.

Lorraine: That would be so great. Again thanks for joining us today for the ACTS Law hour. You can visit actslaw.com. That’s A-C-T-Slaw.com. Thank you to our host Danny Abir and like I said, our guest attorney Doug Rochen for the great show today. Join us every Saturday from 12:00 to 1:00, the ACTSLaw hour on KABC 790. I’m Lorraine Love, thanks for listening.

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