Tuesday, December 10, 2013

The Tanning Giant.

Why do I write? This thought was running through my head this morning while I was reading a beautiful email from a new found friend. I look back when Jillian was first diagnosed with melanoma and remember my thoughts at the time. I’m  wondering,  how am I going to help Jillian? I knew she would be up for the physical battle ahead of her. I was more concerned about her mental battle. Jillian was private when it came to her inner feelings. It was hard for her to share. Much like me, really. I was private, I didn’t want myself on display. I didn’t want to appear vulnerable. So by opening myself up and sharing all the crap, I  became Jillian’s voice in a sense. What I’m about to share today, is loud. I think Jillian would approve.

Last week I posted a question asking if there had been any lawsuits filed against the tanning industry from the victims of melanoma. That question prompted an attorney from Ohio to reach out to me, offering to share some insight. He mentioned that if there have not yet been suits filed, there will be. He had been one of the young grunts for some tobacco defense teams, and sees some similar issues between the two. He agreed to be a guest on my blog, laying out some steps for those who may be interested.  Below is Jeff’s article. Thank you Jeff, for your willingness to help.

Considerations in Suing Sunless Tanning Salons and
Tanning Bed Manufacturers

by Jeff Roush
            I am a lawyer, and got my start representing a large tobacco manufacturer in litigation over claims allegedly made by that company and others in the industry about particular types of cigarettes.  That experience opened my eyes in a number of ways, particularly regarding the tactics both sides used in litigating complex issues.  Attorney-client privilege prevents me from revealing any communications or secrets regarding that litigation or that client, but I can say that many of the arguments made in the cases in which I was involved relate directly to what one may face when taking on the sunless tanning industry.  While I know I am writing for a dedicated fighter against this industry, someone I absolutely support in her mission of education against the harms of self-tanning, I will look to take a neutral approach here, laying out the key arguments each side will make and what points litigants need to win to succeed in their personal fights.

Finding a Lawyer
            You are an individual suing an industry, potentially involving the individual tanning salon, its parent company, the manufacturer of the tanning bed or beds used, and even a parent company of that manufacturer.  Depending on strategy, each of those companies may hire its own lawyer, or they may pool resources to hire one firm to represent everyone.  Against this combination of experience and money, you may feel alone. 
You need a seasoned attorney on your side to help even the odds.  This means doing your research.  The attorney you select should have a record of winning cases against businesses.  Ideally, if not someone experienced in suits against the tanning industry, it should at least be someone holding experience in products liability cases: represented plaintiffs suffering from disease or injury caused by a product.  You want someone who is tough enough to stand up to strong-arm tactics from the defense, and yet capable of making the emotional argument along with the logical.  Your local bar association can be a tremendous resource in identifying the right person to represent you.

            The threshold issue you need to show, aside from the fact that you or your loved one has been harmed, is causation: did the defendant (or one or more of the defendants) cause the injury?  Our understanding of the science of ultraviolet radiation has developed to the point that we know the dangers tanning beds pose.  For those suffering from skin cancer resulting in part from use of these beds, this helps with part of the battle. 
            That said, you need to show more than that sunless tanning was one potential cause, or even more than that it was definitely part of the cause.  Defense lawyers look to cast doubt on the claim, pushing to the point that it is as likely or more that something else caused the injury.  Other potential causes will be investigated: other salons, other manufacturers, and old-fashioned sun tanning.  You’ll be asked about how often you or your loved one used sunscreen, and what other steps were taken to lessen the risk from other sources.
Your best chance of success, then, lies with showing the bulk of the tanning you or your loved one has done was with the defendant’s salon and/or product.  If you can show this, demonstrating causation becomes easier.  You don’t have to have been perfect, and the worst thing you can do in court is lie.  But have your information lined up and be prepared for an attack on the irresponsible behavior of the person suffering from skin cancer.  It may feel odious, but you should expect it and prepare for it going in.

Warnings and Assumption of Risk
Knowing use of a dangerous machine allows the defense to claim the person suffering from cancer made a conscious choice to risk the consequences of skin diseases, up to and including cancer.  For most laypeople, this sounds like “blaming the victim,” and certainly an element of this comes in.  From the manufacturer’s perspective, as well as the salon’s, they are making a legal product and providing a legal service.  If they provide warnings of the dangers associated with that product and service, and a person chooses to take that risk, the financial impact of suffering the injury that person was warned about falls on that person.
This argument works very well.  The defense may play on the jury’s sense of personal responsibility, and may go so far as to try to paint the person suffering from cancer as an irresponsible, vain person caring only about his or her appearance and dismissing known risks.  And if this attack goads you into getting upset, you run the risk of looking irrational as well.
One way to attack this defense is to look at the adequacy of the warnings.  Were they visible on the product?  Was information distributed at the salon?  How informed was the person tanning before he or she proceeded?  Assumption of risk becomes a weaker argument if the warnings were not given by the manufacturer or the salon.  If anyone downplayed those risks before the tanning sessions began, or referred to it as “safer” than sun tanning, that can help you as well.  In other words, the best counter to assumption of risk is to show that you did not really know or appreciate the risk.
That counter can be even stronger if the person suffering from cancer began these treatments as a minor.  One major reason tobacco plaintiffs make claims of youth advertising against that industry is that younger people are not held to the same decision-making standards as adults.  If a minor was allowed to attend tanning sessions without a parent’s consent, assumption of risk becomes much harder for the defense.  You will, of course, need to determine (or have your lawyer tell you) what in your jurisdiction makes someone a minor for these purposes.

Time and Money
            Early resolution does not occur in these cases.  You need to prepare for a long fight, possibly taking years.  And while big trial verdicts tend to make headlines, they are rare.  Defense lawyers count on the expense of litigation hurting you before it hurts their clients—and in most cases, they are right.  Stay patient, and plan for a long road. 
            More than anything else, though, you need to believe: believe that you are right, and believe that you will win.  Your case is about righting a wrong, while the defense’s case, whatever bluster they give, is about money.  Remember this, and keep fighting.  Our legal system is not perfect, but if you persevere, it can serve you well.

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