The Disappearing Right to Trial by Jury: How Big Business Misappropriates Your Rights Through Forced Arbitration Clauses

By: Jacob W. Gent, Attorney at Law

A recent investigation by the New York Times called into focus the alarming and devastating efforts by corporations, insurance companies, and financial institutions to take away fundamental rights of individual consumers.[1] The right of a US citizen to be heard by a jury of peers is one of the most important aspects of our democratic system.  Our nation’s founders considered the right to a jury trial to be indispensable, and arguably the most important right of citizens to combat tyranny.  Our founders considered the right to trial by jury so essential that it was preserved in the Bill of Rights as the 7th Amendment to the Constitution.  In a 1979 case, United States Supreme Court Justice William Rehnquist stated:

 [T]hose who oppose the use of juries in civil trials seem to ignore [that] the founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary.[2]

Unfortunately, the right to a jury trial in our civil justice system is under attack by insurance companies, corporations, and lawmakers, who have succeeded in forcing binding arbitration clauses into various consumer contracts in order to block an individual’s right to access the courts.  With just a few simple words innocuously embedded in the fine print of a contract, a corporate entity can mandate that any dispute between the individual consumer and the company “shall be resolved by individual arbitration.”  The clause allows the corporate entity to select, and pay for, a single arbitrator to “resolve” a dispute.  These clauses are often buried in a lengthy contract and are not obvious to the lay person.  Preventing an aggrieved person the ability to challenge a wrong in court, before a jury of peers, denies that person the basic right to challenge tyranny and corruption on a level playing field.

Binding arbitration clauses have become increasingly common in contracts of all kinds, including insurance policies, credit card and bank account agreements, loan applications, cell phone agreements and employment contracts, to name a few.  Nearly every automobile insurance policy contains binding arbitration clauses in the context of Personal Injury Protection (PIP) or Uninsured/Underinsured Motorist Coverage (UIM) coverages.  This means that an insured whose policy contains a mandatory arbitration clause, and who has a dispute with their insurance company, cannot present a claim in court before a judge and jury, but rather is forced to argue their case before a single arbitrator, paid by the insurance company. The result is a staggeringly uneven playing field when a dispute arises between the individual and the corporate entity that drafted the contract.  The insurance company has the upper hand and the individual consumer is powerless to challenge any wrongdoing.

Mandatory arbitration frustrates the design of our civil justice system intended to level the playing field for the “little guy” through established procedural rules, the right to know and challenge evidence before trial, and the right to an impartial judge who is guided by the law that instructs a jury of impartial peers.  Binding, or “forced” arbitration clauses are hardly voluntary.  These clauses are buried in the fine print of consumer contracts and insurance policies and written in legalese that is indecipherable to most consumers.  During arbitration, rules of evidence and rules of procedure are more relaxed than they are in court, and there are often limitations on what evidence can be obtained by the parties prior to the claim being heard, which may make it difficult for individuals to have access to evidence important to their case.  Arbitration proceedings are typically private and not open to public view, as are jury trials.  The decisions rendered by the arbitrator is binding and not subject to appeal, even though the decision may not be legally correct.  Finally, the injured party typically must share the sizeable cost of the arbitration with the company or insurer, who is in a far better financial position to bear such cost.  In the event the company covers the cost, it has the ability to delay or freeze the arbitration if it senses the proceeding is not going favorably.

For the survivor of serious injury, the right to a fair hearing is essential to that person’s physical, mental, spiritual and financial recovery.  The attorneys at Adler Giersch, ps are available to assist those who have been harmed by the negligence of others and work hard to level the playing field on behalf of their clients.

 


[1] “Arbitration Everywhere, Stacking the Deck of Justice.”  The New York Times, Jessica Silver-Greenberg and Robert Gebeloff, Oct. 31, 2015.  http://www.nytimes.com/2015/11/01/business/dealbook/arbitration-everywhere-stacking-the-deck-of-justice.html?_r=0

[2] Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99, 99 S. Ct. 645.

Trauma Superimposed on the Myasthenia Gravis Patient

By Steven J. Anglés, Attorney at Law

Trauma can wreak havoc to any patient well beyond the musculoskeletal system; and in particular can complicate the healing process in patients suffering from pre-existing neuromuscular conditions before a traumatic insult.  Trauma that is superimposed on a pre-existing, though well-maintained, neuromuscular condition can result in a significant increase in the neuro-muscular symptoms.  In other cases, patients with no known symptomology of a dormant and asymptomatic pre-existing condition can be diagnosed with a neuromuscular condition that was triggered by the “awakening” from sudden trauma.  One of these neuromuscular conditions is Myasthenia Gravis (MG), an autoimmune disease of the neuromuscular system that is known to affect all races, both genders, and multiple age groups.[1]

What is Myasthenia Gravis (MG)?

The name “Myasthenia Gravis” literally translates into “grave muscle weakness.”[2] It is an autoimmune neuromuscular condition that causes varying degrees of weakness of the voluntary muscle groups. While the most common sign of MG is often a drooping eyelid, it can also result in blurred or double vision, slurred speech, difficulty chewing and swallowing, weakness in the arms and legs, and difficulty breathing.[3] MG causes muscle weakness by interrupting the normal communication between nerves and muscles at the “neuromuscular junction” (where nerve cells connect with the muscles they control). Nerve receptors that should allow neurotransmitter chemicals to contract muscles normally are instead blocked, altered, or destroyed by antibodies, causing as much as an 80 percent reduction in the number of receptor sites.[4] Testing for MG can include blood tests, nerve conduction studies, and single fiber electromyography (EMG).

Myasthenia Gravis

[5]

Trauma and Myasthenia Gravis (MG)

Several case studies have helped explain the role trauma can play in patients with MG. One study examined the role of trauma in a patient with stable MG (no symptoms) who then suffered a spinal cord injury as a result of a motor vehicle collision. [6] Immediately after the collision, the patient’s neurological examination revealed markedly reduced muscle strength in all four limbs, absence of sensation below the C4 dermatome, and absence of tendon reflexes. Cervical spine MRI showed posterior bulging of the intervertebral disc at C3-4, C4-5, and C5-6, with compression of the cervical spinal cord. Following a laminectomy and plate fixation for cord decompression, the patient’s neurological function and muscle strength all improved. One week later, the patient developed a urinary tract and respiratory tract infection, along with significant weakness of the eye muscles and in all four limbs. However, sensory function was normal. Cervical spine MRI showed no cause for the symptoms and the worsening of the patient’s MG was confirmed through blood testing. The authors of the study noted MG relapses are known to be triggered by factors including infections, emotional stress, and increase in body temperature, among others.

A second case study reported on the effects of a concussion, whiplash injury, and sternal fracture, all from a motor vehicle collision, on a patient with no pre-existing MG symptoms.[7] Within two months after the collision, the patient developed blurred vision, a drooping upper eyelid, double vision, difficulty swallowing, and weakness of the arms and legs. MRI of the cranium was normal. The patient did not have risk factors commonly associated with MG. The patient consulted with a neurologist and laboratory analysis helped confirm the diagnosis of Myasthenia Gravis. The authors of the study concluded that the relatively short onset of MG symptoms after the motor vehicle collision made it likely that the sternal fracture awakened previously dormant and asymptomatic MG as part of the body’s reaction to the inflammatory process.

Other similar case studies have also related a link between the onset or worsening of MG and trauma.[8]

These studies underscore the importance of evaluating a patient as quickly as possible after injury to properly reach a differential diagnosis(es). Unfortunately, insurance companies confronted with less common conditions like MG can quickly dismiss injury claims by erroneously labeling them as “pre-existing conditions” that result from something other than trauma. Other times, insurance companies unfamiliar with this condition will improperly assume a patient previously suffering from MG was experiencing pain, as opposed to muscle weakness, and use this as a basis to deny an injury claim. For these reasons, it is important for patients to consult with knowledgeable legal counsel well-informed on medical conditions who can effectively assist them through the claims process after an injury.

 


[1] myasthenia.org/WhatisMG.aspx
[2] www.ninds.nih.gov/disorders/myasthenia_gravis/detail_myasthenia_gravis.htm#3153_5
[3] myasthenia.org/WhatisMG.aspx
[4] myasthenia.org/WhatisMG.aspx
[5] www.hopkinsmedicine.org/healthlibrary/conditions/nervous_system_disorders/myasthenia_gravis_85,P07785/
[6] Che-Sheng Lin, MD, et al. “Myasthenia Gravis with Superimposed Spinal Cord Injury: A Case Report” J Rehabil Med 2008; 40: 684-686.
[7] Jens A. Petersen, et al. “Autoimmune Myasthenia Gravis after Sternal Fracture” Case Reports in Neurology; 2012; 4:20-22.
[8] Russell Lane, et al. “Myasthenia gravis precipitated by trauma: Latent myasthenia and the concept of “threshold” Neuromuscular Disorders; 2009; 19 (11): 773-5