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.
Causation
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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