Are The Roasting Chestnuts Safe to Eat?

As we prepare for the holidays, food is certain to be a central part of our family gatherings. We trust that the food we buy is safe and free of contamination, but that is not always the case. Every year, 48 million people get sick from foodborne illnesses. Of those affected, at least 128,000 are hospitalized and 3,000 will die. These numbers may understate the problem as many cases of foodborne illnesses go unreported.

These statistics are frightening, but what is scarier is that the numbers could be worse if not for trial lawyers. Our government regulators simply do not have the resources to force food corporations to take the necessary measures to protect our food supply. When these companies place profits before safety, the trial lawyers and our civil justice system are essential for the protection of consumers. Taking these food corporations to court has become an important deterrent against the bad acts and practices that create risk of contamination in our food supply.

News reports regarding food contamination are increasing. The recent outbreak of illnesses seemingly related to Chipotle restaurants have dominated the news of late. Most often the source or cause of food contamination is never identified, but we do know some reasons why the number is escalating. Aside from bad corporate practices, another reason for the increased risk of contamination is the advent of new farming strategies. The administration of pharmaceuticals to livestock has exploded. Not only does that use add risk, the waste from these farms filter into the groundwater and crops growing nearby. As such, contamination in leafy greens such as lettuce and spinach is now the second biggest cause of food-related hospitalizations and the fifth most frequent cause of deaths related to foodborne illnesses.

A contamination lawsuit against a food corporation is about much more than compensating the injured consumer. These lawsuits have the opportunity to effectuate change in corporate policy affecting food safety. When food producers and suppliers are held liable for the injuries caused by contamination in their products, these companies have greater incentive to value safety over profits. Sometimes it is these lawsuits that actually uncover the source of the contamination through the discovery conducted. Government regulators simply do not have the time, power or resources to conduct such thorough investigations as can be done through the civil court system. These lawsuits are vital for the protection of consumers.

Written by Jean Sutton Martin of the Law Office of Jean Sutton Martin PLLC.  Attorney Jean Sutton Martin provides focused, personalized legal solutions for people who have been harmed by pharmaceutical drugs and medical devices.

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NCAJ Members Assist Eugenics Victims Pro Bono

Lawyers have a professional obligation to donate their services occasionally to legal activities that are rendered pro bono publico – that is a Latin phrase meaning “uncompensated services provided in the public good.”   Several trial lawyers in North Carolina have donated their services to help victims of the state’s eugenics sterilization policy.

From 1933 until approximately 1974, North Carolina pursued a policy of eugenics sterilization.   Generally speaking, any person in the state who was “feeble-minded, mentally diseased, epileptic” or whose “mental, moral or physical improvement” could be furthered by sterilization, or who might produce a child “who would have a tendency to serious physical, mental or nervous disease or deficiency,” would be a proper target of this involuntary sterilization policy.   In 1933, the General Assembly passed P.L. 1933, Sec. 224, which established the “Eugenics Board” to provide a modicum of due process for the targets of the sterilization program.   This public law also established an affirmative duty on the part of each county’s Board of Commissioners, and each county’s Superintendent of Welfare, to go out into their local community and find all of the people under their jurisdiction who “should” be sterilized pursuant to this public policy.  The 1933 Act required these public officials to get it done by filing a petition for sterilization with the Eugenics Board.   The Board would hold a hearing and could order or deny the request for sterilization.  Once ordered, the operation was performed at public expense in the county from which the petition originated.   There were apparently thousands of North Carolinians involuntarily sterilized pursuant to these policies between 1933 and 1974, when the Eugenics Board was finally disbanded.

In 2013, the NC General Assembly did the right thing—it enacted a compensation program “to make restitution for injustices suffered and unreasonable hardships endured by the asexualization or sterilization of individuals at the direction of the State between 1933 and 1974.”  The legislature set aside $10,000,000 to be paid per capita to eligible claimants.   Unfortunately, the legislators were unaware that apparently, county welfare departments had involuntarily sterilized some citizens without going through the mandatory Eugenics Board petition process.    In addition, some sterilization victims were left out of the compensation package due to an arbitrary qualification date established by the legislature.

The Industrial Commission was given the responsibility of reviewing the applications and determining who was a “qualified beneficiary” under the 2013 compensation law.  Anyone who was denied administratively could request a hearing in front of the Commission and appeal an adverse decision to the Full Commission, and then to the appellate division.   Approximately 850 claims were filed with the Commission.

As of November 2015, approximately 250 claims had been determined to be valid, and a first installment of compensation has been paid to those individuals.  However, approximately 19 denied claims remained in litigation, either at the Commission or the Court of Appeals.

The denied claims fell into two categories:   Some individuals could prove that they had been involuntarily sterilized for eugenics reasons at the behest of public officials, such as county “welfare department” or social services case workers, but no documents pertaining to them were found in the Eugenics Board archives held by the State.  The Commission denied these claims because there was “insufficient evidence” to show that the victims had been sterilized by order of the Eugenics Board, which the Commission viewed as an essential element of a claim.   Other denied claimants had clearly been sterilized through the Eugenics Board process and their paperwork survived in the archives, but they did not personally survive to the “living victim” threshold cut-off date established by the 2013 legislation.

In 2013, it came to the attention of Kevin Bunn (then Chair of the Workers’ Compensation section of the NCAJ) that numerous Eugenics claimants needed to litigate their administratively denied claims at the Industrial Commission.   The Workers’ Compensation section members all practiced daily before the Industrial Commission, so Bunn asked his section members to help out.  As a result, members of the section volunteered to represent these claimants pro bono on the denied, disputed claims for compensation.

Lawyers from the NCAJ who handled claims before the Commission included Elizabeth McLaughlin Haddix of Chapel Hill, Leslie Wickham and Valerie Johnson of Durham, Marva McKinnon and Ed Pressly of Statesville, Bob Bollinger of Charlotte and Martza McCarthy of Morehead City.    Elizabeth Haddix of the UNC School of Law’s Center for Civil Rights represented claimants from the very beginning of the claim application process and coordinated the pro bono efforts of the other NCAJ attorneys.   This group of lawyers litigated approximately 18 denied claims all the way through the Industrial Commission and are currently representing 18 claimants on individual appeals pending at the NC Court of Appeals.   On November 18, Elizabeth Haddix and Ed Pressly presented an oral argument to the Court in three “living victim threshold” cases, and on November 30, Bob Bollinger presented an oral argument in a “no documents from the Eugenics Board archives” claim.

The stories of the victims are absolutely compelling—-the November 30 argument involved a 26-year-old mother with no financial resources who was sterilized decades ago under duress applied by a county social worker.  The woman and her two young children were receiving welfare benefits, and the social worker threatened to take away her children if she did not “consent” to a sterilization procedure.   The Industrial Commission found that she was involuntarily sterilized, but that she was not eligible to receive compensation because there was no order from the Eugenics Board.  The question for the Court of Appeals is whether the lack of an order from the Board is dispositive, when the involuntary sterilization could only have been lawful under the 1933 Eugenics Sterilization Act.

These trial lawyers collectively have invested hundreds of hours of uncompensated professional time into this effort to bring justice to each person who was involuntarily sterilized by the State pursuant to its eugenics sterilization public policy.

Blog post author Bob Bollinger practices law at the Bollinger Law Firm, PC.  The Bollinger Law Firm, PC, is based in Charlotte, but takes workers’ compensation cases across North Carolina. Founded in 1999, the firm has a strong reputation as a law firm of advocates for injured and disabled people.

Are undocumented workers entitled to workers compensation benefits in North Carolina?

Well sort of…

N.C. Gen. Stat. § 97-2(2) states that the term “employee” means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also minors, whether lawfully or unlawfully employed...

The primary case law in our state interpreting N.C. Gen. Stat. § 97-2(2) is Gayton v. Gage Carolina Metals, Inc., 560 S.E.2d 870 (N.C. App. Ct. 2002).  Gayton holds that disability benefits are payable if the illegal person is unable to work because of the injury.  However, disability benefits are not payable if the illegal person is unable to work due to his illegal status and not the injury.

The law on his face sounds pretty reasonable, and in most of my work representing undocumented workers in a workers compensation context, I have found that it produced fairly reasonable results. Up until now that is.

Currently I am representing a young man who does not have adequate documentation to work legally in the United States. Originally from Guatemala, he has been in the US for more than 25 years.  He is married to a citizen and has been approved as a permanent resident and is currently just waiting for his green card.  He is well-spoken in English, and he is a good-natured person who suffered a very serious injury at a dangerous workplace.   At the time of this accident on May 7, 2014, my client had been employed with the defendant-employer for 11 years, and was making more money than he was able to make it any other work environment.

Due to an unsafe work practice in this local metal and iron shop, my client suffered a two level cervical disc herniation while working in his position as a maintenance worker.  He eventually underwent the surgery to correct the herniations and fuse the vertebrae in his neck. But because of the delays inherent in our workers compensation system, he suffered permanent nerve damage while waiting for the surgery. My client has weakness and numbness in his left side as well as neck pain, middle back pain, dizziness and headaches. This injury occurred on May 7, 2014, and despite having seen four different doctors, my client’s prognosis is not much improved.

Starting on February 12, 2015 the employer-defendant started writing a series of letters to my client stating that he would be terminated if he could not produce proper documentation within 120 days of the first letter.  Given that the employer-defendant had a practice of hiring and retaining undocumented workers long term, this appeared to be a clear artifice to excuse the employer for terminating my client, and thereby avoiding paying sizable workers compensation benefits to my client.

But under Gayton, after presumably receiving technical advice from their workers compensation defense counsel, the employer apparently understood that this termination would not relieve them of their duties under the Worker’s Compensation act to pay my client weekly checks because of his inability to do his pre-injury job (and his inability to find suitable less physically demanding employment).

And so on July 11, 2015 the day before the defendant-employer was to terminate my client because of his inability to present proper documentation, the employer-defendant terminated my client, and concocted, and has sworn to, an elaborate false story that my client resigned.

And even though this case is set to go mediation (for the second time) in coming weeks, I doubt that we can reach a settlement. My client is entitled to a settlement large enough to pay for his future medical treatment, and weekly checks while his at out of work, or at a minimum, to be paid for his wage loss differential for 500 weeks.  And since the employer went to such lengths to create an elaborate false story about my client resigning, I know that they will likely not pay my client what he would be entitled to under the workers compensation act.

And so we will move forward and battle this injustice in court. Yes this is just one person.  But these are the lengths that some unscrupulous employers will go to avoid their duty to pay workers compensation benefits due to undocumented workers.  And recently a bill was proposed and the North Carolina legislature to deny workers compensation benefits to all undocumented workers.  Luckily this measure did not pass. But we must be vigilant to educate workers about their rights and protect those rights to the fullest extent of the law.

 

Laura Jenkins practices workers’ compensation and personal injury law in Raleigh, NC at the Law Office of Laura S. Jenkins, PC with an emphasis on serving Spanish speakers. She has tried many cases at the Deputy Commissioner and the Full Commission level of the Industrial Commission. Ms. Jenkins has also litigated civil injury claims through Superior Court, the Court of Appeals, and the Supreme Court of North Carolina.

This Isn’t “Law & Order”

“If you cannot afford to hire an attorney, one will be appointed for you.”

Fans of “Law & Order” have heard that phrase hundreds of times, just before the mid-episode commercial break, when detectives are escorting the criminally accused into custody and advising them of their constitutional rights.

But what does that particular constitutional right actually mean in the real world to citizens who are entitled to legal representation yet unable to hire a lawyer?

For many years in North Carolina’s state courts, it only depended on where they were. Customs of the local judicial districts prevailed, resulting in inconsistent standards across the state for appointment of counsel, quality of representation, and payment of costs associated with that representation. The quality of representation–and funding for it–often depended on little more than the local appointing judge’s personal affinity for the local appointed lawyer or how the lawyer handled or quickly disposed of cases before the court.

North Carolina Becomes A National Model

In 2000, the state legislature established the Office of Indigent Defense Services (IDS) as an independent statewide agency charged with overseeing the provision of legal services to the indigent, whether by Public Defenders or Private Assigned Counsel.

Since then, IDS has served that constitutional mandate by developing training, qualification, and performance standards for those services; determining the most appropriate methods of delivering them in each judicial district; and making sure they are provided in the most cost-effective manner possible.

Over the last 15 years, IDS has become a model for the nation regarding the provision of independent, quality, and cost-effective indigent defense services. It has been cited in the Congressional Record as such. 108 Cong. Rec. S11613 (Nov. 19, 2004)(Statement of Sen. Leahy regarding the Justice for All Act).

Independence & Oversight

Independence has been key to the mission of IDS. All national standards and studies stress the importance of keeping indigent defense independent from the judiciary function and budget. For example:

  • “The public defense function, including the selection, funding, and payment of defense counsel, is independent.” Principle One of the ABA’s Ten Principles of a Public Defense Delivery System.
  • “The [legal representation] plan and the lawyers serving under it should be free from political influence and should be subject to judicial supervision only in the same manner and to the same extent as are lawyers in private practice. … An effective means of securing professional independence for defender organizations is to place responsibility for governance in a board of trustees.” Standard 5-1.3(a) of the ABA Standards for Criminal Justice: Providing Defense Services.
  • “The agency responsible for ensuring that capital defendants receive high quality legal representation “should be independent of the judiciary and it, and not the judiciary or elected officials, should select lawyers for specific cases.” Guideline 3.1B of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.
  • “Thou shalt … [a]ssure that the public defense function, including the selection, funding, and payment of appointed counsel, is independent. The indigent defense function should be independent from political influence and subject to judicial supervision only in the same manner and to the same extent as retained counsel. To safeguard independence, and to promote efficiency and quality of services, a nonpartisan board should oversee defender, assigned counsel, or contract systems.” First of NLADA’s Ten Commandments of Public Defense Delivery Systems.
  • “Ideally, an indigent defense oversight body should be an independent agency of state government. This allows the [governing] commission to retain decision-making authority and advocate for adequate indigent defense funding. If a state’s indigent defense system is financed primarily by the state, it is especially important that its budget remain separate from those of other agencies, including the courts, so that resources directed towards indigent defense are not seen as having a negative impact on other worthwhile spending.” Justice Denied–America’s Continuing Neglect of Our Constitutional Right To Counsel: Report of the National Right To Counsel Committee, 160 (The Constitution Project Apr. 2009).

Of course, independence does not mean a lack of oversight.

IDS is governed by a bipartisan group of 13 Commissioners appointed by the Governor and leaders of the legislature, court system, State Bar, and various other professional legal services organizations. In addition to that oversight, IDS is routinely required to report to legislative oversight committees, and its biennial budgets are established by the legislature. IDS also holds regular meetings that are open to the legal community and public at large for scrutiny, comment, and participation.

The Model Threatened

During the 2015 General Assembly Session, without public debate or explanation, North Carolina’s legislature eliminated IDS’s independence, putting its budget back into the overall judiciary budget. For the first time in 15 years, lawyers for poor people accused of crime may once again have to compete for diminishing court resources with prosecutors, judges, clerks, and others. It’s not hard to predict who will probably win that battle.

At the same time, we have seen costs of living and running small businesses rise, while compensation of Public Defenders and Private Assigned Counsel (many of whom run small-business law firms) has remained stagnant or fallen.

A November 2015 survey of the impact of budget constraints on North Carolina’s public defenders reflects that they are working second and third jobs, fending off bill collectors, worrying about feeding their children, and facing daunting caseloads–while the indigent accused suffer.

A study of Private Assigned Counsel in May 2011 found the same plight facing appointed lawyers and their indigent clients: “North Carolina is in danger of joining those jurisdictions in which the right to effective assistance of counsel is honored in word but not in deed. While the reductions in compensation have strongly impacted the lawyers, the survey results make it clear that they are also impacting the clients who depend on those lawyers to receive quality representation.”

The Future

In “Law & Order,” the accused are usually guilty scumbags, so it’s easy to care little about their freedom or the Constitutionally-deficient nature of their legal representation. The defense lawyers are usually “technicality”-invoking scumbags, so it’s easy to care little about threats to their livelihood or professional dignity.

But in the real world, accused people are often overcharged and sometimes completely innocent. Their lawyers are earnest professionals with deep commitments to the Constitution and the fairness of our criminal justice system to all of the accused–not just those who can afford to finance a proper defense.

The quality of indigent defense is inversely proportional to the government’s power to destroy people’s lives by mere accusation. Over the last 15 years, IDS has made great strides toward leveling the playing field, improving both the quality and cost-effectiveness of representing the indigent. We still have a way to go, and we certainly shouldn’t be going backward. We should seize every opportunity we have–in conversations with friends, colleagues, and legislators–to advocate for justice by restoring and preserving IDS’s independence and adequate funding.

Because the stakes are high: from losing the ability to drive as a result of a traffic charge, to suffering incarceration or some other life-altering consequence as a result of a criminal conviction, to facing execution as a result of a capital murder charge. This is real life.

It’s not a television show.

Bradley Bannon is a Raleigh criminal defense and civil rights lawyer. He has served NCAJ as President of the organization, Chair of the Criminal Defense Section, and member of the Executive Committee since 2013.