LawSquawker • Thomas & Wan's Blawg

Study contradicts med-mal 'reform' arguments

2011-09-16T09:26:00.003-05:00

This from the American Association of Justice:

Less than a quarter of the claims that doctors filed with an insurer seeking coverage for medical malpractice liability resulted in payments to the patients who alleged harm, according to a study published in the New England Journal of Medicine. The low rate of payments shows that insurers deny far more claims than they pay--and that the so-called medical malpractice crisis is nonexistent, plaintiff lawyers say.

The study, "Malpractice Risk According to Physician Specialty," looked at data between 1991 and 2005 for all the physicians covered by one national insurer. It found that while 7.4 percent of physicians faced a malpractice claim annually, only 1.6 percent had a claim that led to a payment. Seventy-eight percent of claims did not result in payments. The study considered only claims filed with the insurer, not lawsuits filed in court.

"What this new study tells us is that the supposed wave of malpractice payments is actually a myth that has been built up by the scare tactics of insurance companies and tort 'reform' groups," said AAJ President Gary Paul in a statement.

Denver lawyer Jim Leventhal agreed. To recoup their losses in the real estate and stock market, insurers have "increased premiums on physicians and blamed it on lawsuits," he said, adding that this misrepresentation of lawsuits' impact comes "at the unfair expense of physicians and patients."

The study authors noted that the factors that drive the likelihood of a claim are independent of the factors that affect payment size. Doctors in certain high-risk specialties, like neurosurgery, were more likely to face claims, but those claims were not more likely to result in payments, and those payments were not larger than those for physicians in lower-risk specialties.

The discrepancy between claims and payments reinforces the argument against damages caps in med-mal cases, Leventhal said. He noted that although tort "reformers" say caps lower malpractice insurance rates, states with caps often have higher rates than those without caps.

The study highlights the "absolute unfairness of caps, which make it financially impossible for catastrophically injured patients or families of patients who have died to pursue claims because the cost of going forward exceeds what their state allows them to collect," he said.

"A strong civil justice system offers injured patients the ability to hold negligent providers accountable and increases patient safety to help prevent negligence before it occurs," Paul said.

"Instead of allowing insurance companies and tort reform groups to perpetuate these myths, we should focus on patient safety as a proven way of reducing claims and saving lives."

Medically Incompetent Doctors Flee to Texas

2011-08-04T17:05:00.004-05:00

Scary. Very scary.

From KRIS Corpus Christi and Texas Watch:

Corpus Christi neurosurgeon Stefan Konasiewicz is on trial in Minnesota this week for medical malpractice. Konasiewicz left a trail of medical incompetence in Minnesota that has resulted in nine medical malpractice lawsuits, some involving patient deaths, as well as a public reprimand by the Minnesota Board of Medical Practice.

Rather than face the music in Minnesota Konasiewicz fled to Texas where lax oversight and a broken legal system allow bad doctors to keep seeing patients, turning our state into a safe haven for dangerous doctors like Konasiewicz.

The Texas Medical Board, which is tasked with policing the medical profession, isn’t required to disclose – or even look into – cases of medical malpractice when a doctor moves from another state. So, patients have no way of knowing what their physician’s track record is. On top of that, if you are injured (or worse), the law is structured such that most patients and their families have no way of seeking justice through the legal system.

That’s right, Texas has a virtually impenetrable layer of legal protection that allows doctors to avoid legal accountability after a patient has been harmed. In 2003, lawmakers enacted severe and arbitrary restrictions on the ability of patients to sue a dangerous doctor or careless hospital for medical malpractice. This has made it practically impossible for most patients to bring a case against a dangerous physician in our courts.

Advocates have long feared that after patients lost the ability to sue a doctor for botching a surgery or otherwise negligently maiming them physicians like Dr. Konasiewicz would seek refuge in Texas. Looks like their fears are warranted.

Our feckless medical oversight board is coupled with a broken accountability system that punishes patients instead of the few bad doctors who cause most of the harm.

The TMB doesn’t check to see if a doctor moving from another state has a track record of maiming or even killing patients. Instead, they rely on physicians to self-report those cases. And, what if the doctor doesn’t tell them they have a history of medical abuse? Well, the board doesn’t know and the public is left in the dark. The agency could query the National Practitioner Data Bank which compiles information about doctors – including malpractice history – from state medical boards, but they don’t. Why not? Here’s how the folks at the Duluth News Tribune reported it:

Konasiewicz received his license from the Texas Medical Board in 1997 and is required to renew it every two years, [TMB spokesperson Leigh] Hopper said. She said the board is supposed to review a doctor’s malpractice and disciplinary action when it renews a license, but she couldn’t say if that happened with Konasiewicz.

“It’s actually possible that the board doesn’t know about all the medical malpractice cases in another state,” she said.

All state medical boards have full access to the National Practitioner Data Bank, which lists malpractice cases and disciplinary actions taken against doctors. But Hopper said that because the Data Bank charges for queries, it would cost the state of Texas too much — she estimated $160,000 a year — to check on every doctor licensed in the state.

“We might query it as part of an investigation, but it won’t be a source to start an investigation,” Hopper said.

The ultimate responsibility of disclosing malpractice cases is on the doctor, Hopper said.

“If the doctor doesn’t want to tell us and is not truthful when he renews his license, then we’re not going to find out about it, either,” she said.

Evidently, the safety of Texas patients is worth something less than $160,000.

Even though officials at the TMB are now aware of Konasiewicz’s dangerous track record, they have taken no action to strip, suspend, or even restrict his license to practice here. However, officials in Minnesota and Wisconsin have acted to restrict his license.

So, doctors with a history of harm – like Stefan Konasiewicz – get a two-fer in Texas: (1) they get to erase the harm they’ve caused in the past because of lax oversight, and (2) they avoid accountability for harm they cause in the future. If you are a doctor with a penchant for committing malpractice, wouldn’t you move to Texas too?

Going to Hospital in July Could Kill You!

2011-06-27T10:08:00.002-05:00

Just a note to pass along for the upcoming weekend as we celebrate July 4th--BE SAFE and avoid the hospital!

A recent study published by the Journal of General Internal Medicine reported a 10 percent spike in teaching hospital deaths during the month of July due to medical errors. CNN reports on the effect--here's an excerpt:

Typically, medical students graduate in June and begin their first year of residency training — internship — in July. This group of eager new interns invades the hospital to learn, care for patients, and make medical decisions. One problem. They don’t know what they’re doing.

Like most interns, I arrived with four years of medical school under my belt, an M.D. after my name, and virtually no practical knowledge of medicine. Although I wore the long white coat of a doctor, I kept my pockets packed with condensed medical manuals that we called our “peripheral brains” to make up for the lack of knowledge held in my actual brain. Thank God for these manuals. Otherwise I would have been part of “The July Effect.”

Texas's Medicare Spending Has Gone UP Since Tort Reform

2011-06-03T09:31:00.002-05:00

Tort reformers and Gov. Perry tout the success of Texas's medical malpractice tort reform as a cost control measure. But, this article from the Washington Post shows that Texas spending on Medicare has actually gone up since 2003:

For instance, we could look at Texas, where non-economic damages on malpractice lawsuits were capped at $250,000 about eight years ago. You might remember when Rick Perry and Newt Gingrich said:
Texas, for example, has adopted approaches to controlling health-care costs while improving choice, advancing quality of care and expanding coverage. Consider the successful 2003 tort reform.

So what happened to costs of care after that law was put in place? Public Citizen analyzed just that (pdf) using data from the Dartmouth Atlas of Health Care (Selected Medicare Reimbursement Measures):

Texas is blue, the nation is red, and the law went into place at the dotted line. If anything, Texas’s Medicare spending seems to have gone up faster than the nation’s since 2003. Hardly a persuasive argument for tort reform = cost control.

And this is what Gov. Perry wants to share with the rest of the country by being the next President???

Avandia-Being Pulled from Pharmacies by FDA

2011-05-19T09:18:00.000-05:00

The U.S. Food and Drug Administration announced Wednesday that it would restrict access to GlaxoSmithKline PLC's diabetes drug Avandia and pull it from retail pharmacies because of the drug's link to increased risks of heart attack and stroke.

After Nov. 18, Avandia will no longer be available at pharmacies, and doctors and patients will need to enroll in an FDA program in order to prescribe and receive the medicine, according to the agency.

Call Your Senator Now: Loser Pays is really Winner Pays

2011-05-10T09:14:00.002-05:00

The Texas House just passed the "Loser Pays" bill without any debate. In reality, a "winner" in a lawsuit could end up owing the "loser" money! We can stop this now if you contact your Texas Senator and give him or her this example courtesy of my colleague Steve Waldman:

The "Loser Pays" bill that was just ramrodded through the Texas House, without debate, should be called "Winner Pays." If this bill becomes law, the winner of the lawsuit may have to pay the loser's attorney's fees. There is no cap on the amount the winner has to pay. A plaintiff - and this includes a small business - can win a lawsuit and go bankrupt. The following scenario can actually happen:

1. Joe's Lawn Service ("Mom and Pop" small business) buys 10 Hodna (company name changed to protect...) tractors at a cost of $100,000.

2. The tractors do not work, costing Joe to lose most of his landscape business.

3. Joe sues Hodna for the $100,000 cost of the tractors plus $50,000 in lost profits.

4. Hodna offers Joe $80,000 to settle. Joe turns it down because he has lost $150,000.

5. Joe goes to trial and wins $60,000. The jury finds Joe had 40% of the use of the tractors, and the judge disallows Joe's lost profits claim on a technicality.

6. Because Joe won less than 80% of Hodna's offer, he has to pay Hodna's attorney's fees and litigation expenses.

7. Hodna's lawfirm has assigned one senior partner ($750/hour), one junior partner ($450/hour), two associates ($250/hour each) and a three paralegals ($100/hour each) to defend the case, and has run up $350,000 in legal fees and litigation costs.

8. Joe is awarded $60,000, less Hodna's $350,000 in legal fees. In other words, Joe has won his lawsuit but owes Hodna $290,000!

9. Joe files for bankruptcy.

This can really happen. The current Offer of Settlement rule, Civil Practice Code Section 42.004, subsections (d) and (g) limit the shifting of fees to a reduction of the plaintiff's damage award. Subsections (d) and (g) are repealed by HB 274 - making the amount of fees the winner has to pay the loser unlimited. Under HB 274, a plaintiff can win his lawsuit and end up financially destroyed.

The "tort reformers" seek to limit lawsuits for personal injuries and wrongful death. How do they explain this result to small business owners?

The moral of the story being told by the advocates of this bill is this:

If you have a claim against a big corporation, take whatever they offer, because if you dare to take them to a jury, you risk your economic life.

Call and email your state senator. Repealing CPRC 42.004 (d) and (g) turns "loser pays" into "winner pays." Tell your senator to oppose the repeal of CPRC 42.004 (d) and (g)!

"Winner Pays" is unfair for Texans!

Supreme Court May Hear Military Med Mal Challenge

2011-04-25T14:18:00.002-05:00

There is hope that the U.S. Supreme Court will hear a case that could allow military personnel who are victims of medical malpractice to sue military medical providers.

This is a sad and horrible case in which Air Force Staff Sgt. Dean Patrick Witt was hospitalized in 2003 for what should have been a routine appendectomy at Travis Air Force Base in Fairfield, Calif. After surgery, a nurse anesthetist inserted a breathing tube into his esophagus instead of his trachea or airway, depriving his brain of oxygen. Witt, of Oroville, Calif., died after his family removed him from life support three months later.

Current law protects the military and prevents Staff Sgt. Witt's family from receiving any justice for this malpractice. Veterans, military families and others who oppose the decades-old law, the Feres Doctrine, that shields military medical personnel from malpractice lawsuits are rallying around a case they consider the best chance in a generation to change the protection.

"We labored on this for a long, long time, and we decided that the right thing to do here was to protect the rights of other people who go into the military and are signing away their rights to get good health care in the military system," said Witt's brother-in-law, Carlos Lopez, of Salt Lake City. "So we're hoping, we're praying, that his case could be the one that changes everything."

Speak Up--Whether it's a Doctor or a Cab Driver!

2011-04-13T09:59:00.003-05:00

I thought this piece by Maureen Dowd was very sobering and very funny. We are so afraid to speak up sometimes that it costs us our lives:

When my brother went into the hospital with pneumonia, he quickly contracted four other infections in the intensive care unit.
Anguished, I asked a young doctor why this was happening. Wearing a white lab coat and blue tie, he did a show-and-tell. He leaned over Michael and let his tie brush my sedated brother’s hospital gown.
“It could be anything,” he said. “It could be my tie spreading germs.”
I was dumbfounded. “Then why do you wear a tie?” I asked. He shrugged and left for rounds.

6 Famous Frivolous Lawsuits that are B.S.

2011-04-05T11:27:00.002-05:00

"The great enemy of the truth is very often not the lie -- deliberate, contrived and dishonest, but the myth -- persistent, persuasive, unrealistic." John F. Kennedy

Here is a site that dispels many of the email forwards and that "I heard that" stories about lawsuits. Unfortunately, the truth often times is merely something that is repeated over and over again.

The Sixth Biggest Killer in America

2011-03-18T16:44:00.003-05:00

What is the sixth biggest killer in America? Car wrecks? Cancer? Heart attacks? No, it's medical errors...

Preventable medical errors kill and seriously injure hundreds of thousands of Americans every year. Any discussion of medical negligence that does not involve preventable medical errors ignores this fundamental problem. And while some interested parties would prefer to focus on doctors’ insurance premiums, health care costs, or alternative compensation systems—anything other than the negligence itself—reducing medical errors is the best way to address all the related problems. Preventing medical errors will lower health care costs, reduce doctors’ insurance premiums, and protect the health and well-being of patients.

Justice.org has the full story.

Zimmer NexGen Defective Knee Replacements

2011-03-02T16:36:00.001-06:00

Zimmer NexGen CR-Flex Porous Femoral components and Zimmer NexGen LPS-Flex artificial knee replacements have been associated with high incidences of significant pain and loosening of the replacement knee, leading to the failure of the knee replacement, revision knee surgery or other knee surgery complications.

In March 2010, data was presented by a group of prominent knee surgeons indicating nearly 9% of patients examined after two years required revision knee surgery and 36% showed signs of loosening of the cement-less CR Flex artificial knee. These failure rates are higher than expected and are believed to be due to design defects. Based on the high number of calls we have received, we believe other models of the Zimmer NexGen artificial knee may also be defective and will ultimately be recalled.

On July 29, 2010 Senator Charles Grassley (R-Iowa) issued a letter to Zimmer Holdings regarding problems with certain models of the Zimmer NexGen knee replacement system, indicating that the Senate Finance Committee was investigating the product’s safety.

Replacement
Fracture
Loosening Popping
Infection
Pain

A study published in the American Academy of Orthopaedic Surgeons Conference in March, 2010 documented the high failure rate of the high flex (CR Flex) total knee design, and studies as early as 2007 have discussed the high incidence of loosening of the NexGen LPS Flex knee replacement system.

If you or someone close to you has had a revision of a Zimmer NexGen CR Flex or LPS Flex knee replacement, or if you are currently experiencing pain or loosening of these knee replacement systems or components, call the personal injury attorneys at Thomas & Wan for a free consultation and case review.

FDA: Multaq and Liver Failure

2011-03-02T16:35:00.001-06:00

According to an FDA Safety Announcement, the potential side effects of Multaq, a prescription drug used to treat abnormal heart rhythm, may be linked to an increased risk of acute liver failure or other liver problems.

See the FDA WARNING: Severe Liver Injury with Multaq

Multaq (dronedaron) is a new medication that was just approved in July 2009. It is used to treat patients who have had an abnormal heart rhythm during the past six months, such as atrial fibrillation or atrial flutter. Although it has only been on the market for a short period of time, nearly 150,000 people in the United States filled a prescription for the heart drug as of October 2010.

The FDA has received a number of reports of heptocellular liver injury and hepatic failure among users of Multaq, including at least two cases of acute liver failure from Multaq that resulted in the need for a liver transplant.

The two cases of Multaq liver failure occurred within the first six months of use (4.5 months and 6 months). The patients were both females approximately 70 years old with previously normal hepatic serum enzymes.

Liver problems are very serious and potentially fatal. Individuals who are taking Multaq should be aware of the potential signs and symptoms of Liver problems that may be related to the use of the drug. Potential signs Multaq liver problems include:

Nausea
Fatigue
Fever
Vomiting
Jaundice
Dark urine
Itching
Anorexia
Right upper quadrant pain
Malaise

New warnings and information will be added to the label about the potential risk of a Multaq liver injury, and the FDA is continuing to review reports of other Multaq problems submitted through their Adverse Event Reporting System. Patients taking Multaq have been advised to speak with their doctor about any concerns about Multaq side effects, but the medication should not be stopped unless under a doctor’s direction.

We are currently reviewing cases of liver failure from Multaq use. Please call us immediately at 713-529-1177 or fill out the form to be contacted for FREE advice on your legal rights.

Tort Reform Hurts The Most Injured

2011-03-02T11:16:00.002-06:00

A sad and chilling example of why tort reform hurts those that are the most injured. Seriously, any refinery worker in Texas needs to know that they really have no recourse if they are burned, maimed, killed, etc. by the negligence of the refinery. Because of tort reform, we have to turn these potential clients away all the time. People seem to have a mistaken belief that you can sue when you are injured by the negligence of others--well, thanks to "tort reformers," you really can't do that in Texas. Sad, but true.

Next time you are injured from negligence, don't call a lawyer, call Rick Perry and your Congressman/woman and tell them that insurance and corporate greed is literally killing good, decent workers.

Tort Reform is Attack on 7th Amendment and State's Rights

2011-02-18T11:41:00.002-06:00

Why is Congress tearing apart the 7th Amendment and striking down State's Rights with H.B. 5? House Bill 5 is the so-called tort reform bill that barely made it out of the Judiciary Committee to limit meritorious lawsuits against health providers.

Maybe it's because the sponsor of the bill has been sued multiple times himself for medical malpractice...the NY Times and Mother Jones has the full story:

Case in point is one of the very congressmen sponsoring the bill, Rep. Phil Gingrey (R-Ga.). In 2007, the New York Times reports, Gingrey, who is a doctor, settled a lawsuit for $500,000 in a case involving a pregnant woman whose appendicitis Gingrey and others failed to diagnose. Her appendix burst, causing a massive infection that left her unborn child dead and the woman partially disabled after she suffered a stroke as a result.

That wasn't the only time Gingrey has been sued. The Times writes:

In a pretrial deposition, Dr. Gingrey testified that he had been sued at least three other times over malpractice during his long career. In one case, a jury found against him; in another case, there was a settlement; and in another case, the patient dropped the action, he testified.

It's no suprise that the doctors who get sued a lot are the ones who complain the loudest about "frivolous" lawsuits. But the case against Gingrey seems anything but frivolous. But it's just those sorts of serious cases that Gingrey's bill would restrict. And far from saving money, the bill would simply shift the cost of negligent medicine from the doctors and their insurance companies to the taxpayers through Medicaid and other disability programs. Private health insurers also can often recoup their costs for covering malpractice injuries through those lawsuits. Catastrophic injuries like the one suffered by Gingrey's patient profiled in the Times tend to bankrupt people, leaving them reliant on government health care, and the costs can be significant.

http://motherjones.com/mojo/2011/02/gingrey-malpractice-bill-sponsor-target-suits

Insurance Company Won't Pay Out--Even in Hockey!

2011-02-16T09:52:00.004-06:00

Just another example that confirms all our suspicions about insurance companies...

During intermission at a recent game, the USHL's Indiana Ice held a contest where a fan tries to score a length-of-the-ice goal for $50,000. One man, who said if he won would give the money to charity, succeeded, but was told him his goal didn't count because he was over some line and the insurance company who sponsored this challenge didn't pay out the prize. The Indiana Ice, however, did make a donation to charity.

The full story is below...even more telling is that Allstate apparently turned around and blamed a third-party insurance company for being the bad guy. I mean, the name of the contest was Allstate Good Hands Shootout--yet Allstate claims it was someone else that should have paid--sound familiar? That happens all the time in lawsuits--it's called "subrogation" (really, passing-the-buck).

Here's the full blow by blow:

On Saturday night at the Pepsi Coliseum in Indianapolis, Richard Marsh stood at one end of the rink and stared down at the opposite goal, which was covered by a board with a small opening for a puck to slide through.
The USHL's Indiana Ice were holding a special "Hockey for Heart" night sponsored by St. Vincent Heart Center of Indiana. If Marsh scored on this extraordinarily difficult rink-length shot in the team's Allstate Good Hands Shootout, $50,000 would be donated by Allstate to St. Vincent's Cardiovascular of Indiana and the American Heart Association.
After the Ice's mascot took an inspirational heave of the puck down the ice, Marsh took his shot ... and sent the puck through the board into the net. Check it out (no sound on the video, FYI):
Here's another look at the goal.
Here's the remarkable part: Marsh could have kept the money if he won, but decided before he even took the shot that if he made it, he was going to donate it all to charity. There was just one prize of $50,000; all of it was going to St. Vincent's Cardiovascular of Indiana and the American Heart Association.
Awesome, right?
One problem: Marsh didn't completely follow the rules.
According to the USHL, Marsh was "standing in front of the designated starting line" when he released the shot, and thus "the insurance company voided the award due to Marsh" standing in the wrong place. Which makes it a real killjoy. Isn't there some sort of exception for ridiculous goals scored by guys who look like substitute physics teachers?
(Clarification: There's been some vitriol in the comments regarding AllState, so we contacted the USHL about its role in the matter. Sure enough, Brian Werger of the USHL said the initial release from the League didn't clearly state the fact that a third-party insurance company hired to cover this event at Ice games, and not Allstate, was the one that made the call not to pay out the $50,000.)
With that, it was Paul and Cindy Skjodt to the rescue. The Indiana Ice owners, who are credited with keeping the franchise alive in Indianapolis, "made a donation in recognition of the accomplishment" to the charities, according to the USHL. The amount of the donation was not disclosed.
All in all, a heartwarming tale. Mascot hugs for everyone.
http://ca.sports.yahoo.com/nhl/blog/puck_daddy/post/After-hockey-fan-s-50-000-goal-charities-almos?urn=nhl-320928

Malpractice Reform Rests on Thin Evidence

2011-02-08T17:06:00.000-06:00

From Texas Watch:

Washington lawmakers who advocate for medical malpractice reform assume they know what goes on in doctors’ offices. They say physicians order unnecessary tests because they fear being sued. So-called “defensive medicine” drives up health spending, the argument goes.

They don’t acknowledge many doctors order tests because they’re trying to do a thorough job with patients. They rarely mention too much testing is a result of this country’s “fee for service” system of paying doctors. The more care they provide, the more they bill.

Yet proponents of tort reform continue to call for changes in the law – usually caps on the amount of money in non-economic damages patients can collect in a malpractice lawsuits. Even if that did drive down the price of insurance for doctors, that doesn’t mean the savings would be passed on to consumers. It wouldn’t automatically lead to reduced health costs.

Read More: Des Moines Register

Hot Coffee!!!!

2011-01-31T17:07:00.002-06:00

Yes, yes, we all know about the hot coffee case. But do you really know the truth?

A documentary is in the running at Sundance Film Festival called Hot Coffee, and it explores not only that case but three other lawsuits in which seriously injured people are denied their rights under the current legal system.

Many people have no idea how we as Americans are being manipulated by powerful interests, and we are losing our rights to fairness and justice under so-called "tort reform." We are giving away our 7th Amendment rights and we don't even know it.

I haven't seen the movie yet, but here's a trailer and discussion:

The civil justice system has been under heavy attack for over 25 years.

Despite the fact that federal legislation has never been successful, big business interests have won in the hearts and minds of average people. They launched a public relations campaign starting in the mid-80’s and continuing over the last two decades to convince the public that we have out of control juries, too many frivolous lawsuits and a civil justice system that needs reforming. They have used anecdotes, half-truths and sometimes out and out lies in their efforts, for one purpose – to put limits on people’s access to the court system, the one and only place where an average citizen can go toe to toe with those with money and power and still have a shot at justice.

Because of the success of the public relations campaigns, paid for by tobacco, pharmaceutical and insurance companies, to name a few, our civil justice system is not impartial. Jurors have been brainwashed into believing that a large verdict will affect their pocketbooks. Voters believe that we have a court system out of control that needs reforming. Although there are consumer advocacy groups who have attempted to set the story straight, there has yet to be enough money to launch the kind of public relations campaign for consumers that can even begin to combat and challenge the public relations campaigns of pro-business and tort reform groups. Over the last few years, however, documentary films and independent film festivals have become a vehicle for alternative ideas to get a public forum.

Because almost everyone has heard about the McDonald’s coffee case, and most people believe they know what it’s about, this project has a fascination for people. Of course, we go much further into the debate than just the McDonald’s coffee case, but the case is a vehicle for people to think about their long held beliefs and whether they are valid. We think this movie has the potential, with the right funding and effort, to really change the way people think about our civil justice system and access to the courts.

Why is Obama attacking the Constitution?

2011-01-28T16:47:00.003-06:00

This is a brilliant blog entry from 7th Amendment Advocate Blog about the absurd idea of federal tort reform mentioned by President Obama in his State of the Union:

I'm disapppointed that the President and the sponsors of H.R. 5 have targeted this sector of the Constitutionally protected civil justice system for a federal takeover. When Pres. Obama raised it during the SOTU, conservative commentator Ramesh Ponnuru immediately called it "one of the Republicans' crummiest ideas" and added, "There's no need for a federal takeover of medical-malpractice rules." EXACTLY. But apparently the President and senior members of the GOP (the party of "limited government") now aim to limit your 7th Amendment right by using a government mandate, exactly what the GOP opposes in ObamaCare. Bizarre.

...

Here are a set of reasons why Tea Partiers, Constitutional conservatives, Main Street Republicans and Blue Collars should vigorously oppose H.R. 5 and any federal law limiting medical malpractice lawsuits:

1. The Constitutional basis for medical malpractice tort reform is also the basis for ObamaCare, and both violate the 10th Amendment's protections of states' rights. When he introduced H.R. 5, Rep. Phil Gingrey cited the language of the Commerce Clause: of the Constitution. I wrote about the abuse of the Commerce Clause of the Constitution in separate posts on December 6, on December 14, and on January 4. Simply put, the pro-medmal-reform and pro-ObamaCare forces depend on the theory that the Commerce Clause trumps the protection of individual and states' rights in the Bill of Rights. That's a formula for a slide into dictatorship. And as I wrote on December 6, Founding Father George Mason foresaw the holes in the Constitution and argued against ratification of the Constitution without a Bill of Rights.

2. A better name for any such bill is the "Abortion Butchers & Sexual Abusers Civil Immunity Act of 2011." If enacted, doctors who kill babies and their mothers (see the Gosnell case) could leave jail after their sentence is up, then stop by the bank to pick up their blood money and start over. Why would a pro-lifer (like me) ever want to limit the amount of money an abortion victim could take from killers and butchers in a civil suit?! And it even protects doctors who commit intentional torts, such as sexual abuse! The broad scope of H.R. 5 also protects bad drug and device companies which have been criminally prosecuted.

3. The bill does nothing to stop medical malpractice, which kills up to 100,000 Americans annually and injures up to ten times that number. The bill doesn't improve hospital hygiene, medical records technology, or any other medical practice. Medical malpractice lawsuits can't exist if there's little or no medical malpractice.

4. We have a medical malpractice crisis, but not a medical liability crisis. The number of medical malpractice claims has been headed down - yes, DOWN - for years, down 15 percent from 1999 to 2008. The insurance industry's own data reveals that the amount they've paid out for malpractice claims dropped by over 40% between 2002 and 2008, when adjusted for inflation. H.R. 5 is like fixing a flat tire by emptying the radiator. It misses the point and attacks a non-problem.

5. This bill would increase government spending, because those unable to hold wrongdoers accountable will become dependent on Medicare and Medicaid for payment of their medical costs. The taxpayers will be forced to pay for incompetent doctors and for drugmakers' and medical device manufacturers' faulty products.

6. Why would the GOP immunize industry groups which endorsed ObamaCare and enabled its enactment? The AMA and Big Pharma gave us ObamaCare's unconstitutional mandate, budget-busting spending hikes, and huge tax increases. THANKS FOR NOTHING.

7. Medical malpractice today, religious liberty and gun rights tomorrow? There is no differentiation regarding medical malpractice lawsuits under the Constitution. This would be the same as capping damages in suits against schools firing Christian professors or limiting the size of gun clips.

8. The Founding Fathers were never for tort reform. Back in September, I offered to buy the best dinner in Washington to anyone to shows me just ONE pro-tort reform quote by any Founding Father. I've had no takers and I'm not worried, because none of them proposed limiting our 7th Amendment rights.

To the contrary, the Founding Fathers endorsed and protected the "unalienable right" that a citizen could bring civil claims to a local court of law, before a jury of peers. That right had been expressly recognized in British law for centuries, back to the signing of the Magna Carta in 1215.

GlaxoSmithKline's $3.4 Billion Charge on Avandia

2011-01-19T09:53:00.003-06:00

GlaxoSmithKline is taking a huge hit in the amount of $3.4 billion that it is charging off due to the litigation and settlement involving its diabetes drug Avandia. The drug is known to cause heart attacks and apparently GSK's former CEO knew about it way back when.

When will companies learn that it is cheaper to do the right thing that get slapped for doing the wrong thing?

Bnet has more:

GlaxoSmithKline (GSK)’s $3.4 billion legal charge on the diabetes drug Avandia probably isn’t the last of the costs the company will record against this drug. That means Avandia will probably be a loss maker for GSK, proving that former CEO Jean-Pierre Garnier’s 1999 failure to follow up on worries about heart attack deaths associated with Avandia was a strategic disaster for the company, costing it billions in actual dollars and billions more in lost-opportunity dollars.

When the dust has settled, GSK would probably have been better off stashing its development and marketing costs in a savings account rather than spending them on Avandia, some back-of-the-envelope math reveals.

Picking through GSK’s disclosures, two things emerge:
The charges aren’t over yet even though GSK suggested in previous statements that the “substantial majority” of its Avandia problems were dealt with.
When all is said and done, GSK will probably have lost money on Avandia even though it earned more than $16.3 billion in revenues during its lifetime.

Lawyer v. Adjuster

2011-01-14T16:31:00.006-06:00

This is just a funny video...and true...I feel for my colleagues on the insurance defense side...

Could it be...Satan?

2011-01-12T11:38:00.003-06:00

Interesting oral argument yesterday in the Zicam litigation brought by its shareholders relating to corporate disclosures. Satan, Scalia and anosmia...quite a lively discussion. The New York Times has more:

What do you think about Satan?” Justice Scalia asked a lawyer for the government, who was just starting his argument.
The case, Matrixx Initiatives v. Siracusano, No. 09-1156, was a class action against Matrixx Initiatives, an Arizona company accused of committing securities fraud by failing to tell investors of reports that its main product, a nasal spray and gel called Zicam, might have caused some users to lose their sense of smell. The condition is known as anosmia.
After a link between Zicam and anosmia was reported on “Good Morning America” in 2004, the company’s stock dropped 24 percent. In 2009, the Food and Drug Administration warned consumers not to use the products, which had been sold as over-the-counter homeopathic medicines, and Matrixx recalled them.
Satan came into the case by way of analogy. Matrixx contended that it should not have been required to disclose small numbers of unreliable reports of adverse effects, which were all it said were available in 2004.
“For years many consumers would not purchase products from Procter & Gamble because of a ridiculous rumor that the company was Satanic,” Matrixx said in a recent brief. “But no decision of this court bases securities-law disclosure obligations on how ignorant or paranoid people might react to unreliable or even false information.”
The Supreme Court has said that companies may be sued under the securities law for making statements that omit material information, and it has defined material information as the sort of thing that reasonable investors would believe significantly alters the “total mix” of available information.
Much of the argument revolved around whether reasonable investors would want to know about false and outlandish assertions like the one about Satanism so long as the assertions might affect the price of securities.
“A reasonable investor is going to worry about the fact that thousands of unreasonable investors are going to dump their Matrixx stock,” Chief Justice John G. Roberts said.
Justice Scalia disagreed. “It seems to me ridiculous to hold companies to irrational standards,” he said.
Though the justices were divided about how to handle reports of Satanism and the like, Matrixx did not appear to get much traction for its main argument — that a failure to disclose reports of adverse effects should give rise to securities fraud liability only if the reports were collectively statistically significant.
Full story here.

Zicam to Argue Before U.S. Supreme Court Today

2011-01-10T09:12:00.003-06:00

Matrixx Initiatives, the makers of Zicam, will argue today before the U.S. Supreme Court regarding what drugmakers, medical companies and other businesses tell investors about their products.

The issue involves whether Matrixx Initiatives violated securities laws when it didn't tell investors that some consumers complained that they lost their sense of smell after using Zicam Cold Remedy nasal spray and gel swabs.

The case is Matrixx Initiatives v. Siracusano, and the SCOTUS info and briefing is here.

The Arizona Republic has more:

Drugmakers, biotechnology groups and other business interests have lined up behind Matrixx Initiatives, arguing that widespread disclosure of medical complaints from people who take drugs or use medical devices would confuse investors and consumers. The U.S. Securities and Exchange Commission, AARP and others have sided with a Decatur, Ill.-based pension fund that sued the company.

The nation's high court will hear oral arguments today in the case, Matrixx Initiatives vs. Siracusano, and is expected to issue a ruling during its term that ends in June.

This case may outlast the company. Matrixx last month struck a $75.2 million deal to sell to a Miami-based private investment company, H.I.G. Capital LLC. Shareholders have been asked to accept the investment firm's tender offer of $8 per share before the end of January.

The pension fund sued Matrixx in 2004, alleging the company concealed reports that linked Zicam to loss of smell. In 2006, the U.S. District Court in Phoenix dismissed the case after Matrixx argued that the reports of smell loss were not "statistically significant" enough to show that Zicam was associated with smell loss as opposed to random chance.

The 9th U.S. Circuit Court of Appeals reversed the district court's ruling, triggering Matrixx's petition to the Supreme Court.

Drop-Side Crib Ban Takes Effect in June 2011

2011-01-06T17:11:00.002-06:00

Following the deaths of at least 32 babies since 2000 from falls or strangulation, the Federal Product Safety Commission recently adopted new crib-safety specifications that one observer called the "strongest crib standard in the word."

The new rules ban all drop-side cribs and impose tougher rules for crib slats and mattress supports, with the goal of eliminating gaps in which babies can become trapped and suffocate or strangle to death.

The new rules, which take effect in about six months, will make it illegal to resell almost all current cribs, because they won't meet the new standard, the Tribune says. They will require hotels and child care centers to replace their current cribs within two years.

If your baby has been injured by a drop-side crib, contact us at 713-529-1177 to learn your legal options against the manufacturers of these dangerous products.

Happy New Year and Zicam Settlement

2011-01-04T12:51:00.003-06:00

Happy New Year--we've started the new year off in a very busy way--Matrixx Initiatives offered a settlement to our Zicam clients right before Christmas. Matrixx is offering a $15.5 million to settle the lawsuits who allege that they lost their sense of taste and smell due to the company’s recalled line of nasal sprays and gels.

Zinc gluconate-containing Zicam products were recalled in 2009 after the FDA identified at least 120 adverse event reports involving loss of smell with Zicam Cold Remedy Nasal Gel, Zicam Cold Remedy Nasal Swabs and Zicam Cold Remedy Swabs Kids Size.

In the aftermath of the recall, FDA inspectors discovered 800 reports of Zicam problems that Matrixx Initiatives failed to forward to the agency, in violation of federal regulations.

New Auto Insurance Limits in Jan 2011!

2010-12-16T11:57:00.003-06:00

Good news. The Texas Department of Insurance is raising the minimum coverage for auto liability in Texas to $30,000 up from $25,000. It is effective January 1, 2011. Yes, it's a small step, but at least it is moving in the right direction. We meet with potential clients frequently who were in accidents in which the medical bills are tens of thousands of dollars.

However, as you've read in my previous posts, why depend on a bad driver's insurance or the lack thereof? Count on yourself and buy uninsured/underinsured coverage on your own policy. It's cheap and it could save your life or your family member's life when it comes to paying for damages. Most of the time, the bad driver that hits you isn't going to be the responsible millionaire--it's going to the be irresponsible driver who let his or her policy lapse.

Texas Supreme Court Finds Against Insurance Company

2010-12-06T11:48:00.003-06:00

A victory for common sense and justice...for the millions who have a home office comes this recognition of the realities of the 21st century workplace. From the Austin American-Statesman:

The Texas Supreme Court ruled Friday that an insurance company improperly denied workers' compensation coverage to a traveling saleswoman injured while driving her company car toward her company-furnished office.

Liana Leordeanu was denied coverage for the 2003 accident because her office was also her home in a Northwest Austin apartment complex. Driving home is a personal reason for travel that left her ineligible for insurance meant to cover employees injured on the job, American Protection Insurance Co. determined.

But the Supreme Court, ruling 8-1, said Leordeanu was injured while on a work-related mission, driving from an employer-sponsored dinner in South Austin to an employer-provided storage facility and then on to her home office to finish some paperwork.

"Generally, traveling home from work is not in the 'course and scope of employment,'" said the opinion by Justice Nathan Hecht. "But is traveling from one workplace to another while on the way home?"

Yes, Hecht said in an opinion with implications for the growing number of Texans who combine home and office.

The accident on Loop 360 left Leordeanu in a three-month coma and led to 26 surgeries to rebuild her face and skull.

"After eight years and all the emotions, I don't even have all the words to describe it. I started crying when I heard," said Leordeanu, 36, who now lives in California. "I'm mostly glad how this is going to impact a lot of people who have an office in their house."

clindell@statesman.com; 912-2569

The Best Part of Waking Up?

2010-12-06T11:44:00.004-06:00

Hmm...I'm going to stick with Folger's.

Marketers must have done studies that people will buy anythings labeled "all-natural." At least the FDA is being tough. From law360.com:

The U.S. Food and Drug Administration recently issued a warning letter to a company for marketing an "all-natural" virility-boosting coffee that the agency found to contain an active ingredient similar to one in Viagra. The letter is the latest step in the FDA's decade-long crackdown on so-called dietary supplements designed and marketed to treat erectile dysfunction and enhance sexual performance...

Just remember, arsenic is "all-natural" too.

Aredia and Zometa Verdict

2010-11-30T14:41:00.002-06:00

Novartis Pharmaceuticals Corp. is on the hook for nearly $1.2 million in damages after a federal jury in North Carolina found that the company failed to warn a woman's doctor that its Aredia and Zometa drugs could cause a disfiguring bone condition. The actual verdict was $12.8 million but is being reduced to $1.2 million due to North Carolina tort reform laws.

The woman's family’s lawsuit was the third product-liability case to go to trial over the bone-strengthening treatments. Last month, a New Jersey jury rejected a woman’s claims that Aredia and Zometa caused her jaw deterioration. In October 2009, a Montana jury ordered Novartis to pay $3.2 million in damages to a cancer patient who made the same claims over the medicines.

Novartis is facing about 700 suits over the bone-strengthening medicines, according to court filings. Some of the cases have been consolidated before a federal judge in Tennessee. Others have been sent back to their home courts for trial. Still other cases have been heard in state courts around the country.

Our Zometa/Aredia cases are currently still consolidated in the MDL awaiting transfer for trial.

Hyland Teething Tablets Recalled

2010-11-11T12:02:00.003-06:00

We are currently reviewing cases of Hyland Teething Tablet poisoning. Please STOP using this product immediately and keep the product in a safe place in a waterproof container as evidence.

The U.S. Food and Drug Administration (FDA) warns that the recalled tablets may pose a risk to children due to inconsistent amounts of belladonna, a substance that can cause serious harm at larger doses. The FDA has received reports of seizures, difficulty breathing, and muscle weakness in children using the tablets. There have also been reports of overdose; the containers do not have child safety caps.

Tissue Stabilizer Recall

2010-11-03T11:50:00.001-05:00

The Food and Drug Administration has announced that a recalled medical tissue device "could cause more problems than originally thought." The device, Octopus Nuvo Tissue Stabilizer, was recalled by Medtronic Inc. in September because of its potential to break during use, posing a danger to patients. Now, officials are saying that using the product could cause severe injury or death and demand health care facilities cease using them. The recall has been stepped up to a Class 1 Recall according to Medtronic. Read the full story here.

Yet Another Heparin Recall

2010-11-02T12:00:00.002-05:00

The FDA announced a nationwide recall of the blood thinner heparin made by B. Braun Medical Inc. because of concerns that the product may be contaminated with trace amounts of the same substance that was found to be in the 2008 heparin recall.

The heparin was manufactured in 2008 and will expire on Oct. 31, 2010, and Nov. 30, 2010. The FDA said people who have heparin from the recalled lots should discontinue use immediately. If you have been affected by this recall, please contact your doctor immediately, and contact Thomas & Wan, LLP to know your legal rights.

Here are the recalled lots:

Product Name	Catalog Number	Lot Number	Manufacture Date	Expiration Date
25,000 Units Heparin in 5% Dextrose Injection, 50 Units/mL	P5771	J8D674	4/15/2008	10/31/2010
1,000 Units Heparin in 0.9% Sodium Chloride Injection, 2 Units/mL	P8721	J8D676	4/17/2008	10/31/2010
1,000 Units Heparin in 0.9% Sodium Chloride Injection, 2 Units/mL	P8721	J8D677	4/17/2008	10/31/2010
1,000 Units Heparin in 0.9% Sodium Chloride Injection, 2 Units/mL	P8721	J8D702	4/30/2008	10/31/2010
1,000 Units Heparin in 0.9% Sodium Chloride Injection, 2 Units/mL	P8721	J8D703	4/30/2008 – 5/1/2008	10/31/2010
25,000 Units Heparin in 5% Dextrose Injection, 50 Units/mL	P5771	J8E462	5/8/2008	11/30/2010
1,000 Units Heparin in 0.9% Sodium Chloride Injection, 2 Units/mL	P8721	J8E539	5/15/2008	11/30/2010

New Report on Nursing Home Negligence

2010-10-26T15:11:00.001-05:00

A new report released today by the American Association for Justice (AAJ) illustrates how the civil justice system is the most effective force in uncovering abuses by corporate nursing homes and insurance companies that target elderly Americans.

There are 1.5 million elderly Americans currently residing in nursing homes – facilities that are now operated by mostly large corporate chains banking on the upcoming influx of baby boomers. Many of these vulnerable residents have suffered abuse by staff members and even died from dehydration or infection caused by inadequate care. The report explains how litigation has revealed this neglect and abuse and allowed residents and their families to hold offending corporations accountable.

“Corporate nursing homes and insurance companies have continually chosen to put profits ahead of the well-being of our most vulnerable population,” said AAJ President Gibson Vance. “Where regulatory and legislative bodies have been unable to cope with this distressing rise of neglect and abuse of our elderly, the civil justice system has stepped into the breach.”

A common theme in the report is abuse by insurance companies taking advantage of senior citizens. It highlights the story of a South Dakota farmer named Rudy, who was one of a flood of patients that companies signed up for long-term care insurance in the 1990s. Rudy moved into a nursing home at his doctor’s suggestion, only to have his benefits cut after three years when the company declared his care was no longer “medically necessary,” despite faithfully paying his monthly premium.

Thousands of seniors met similar fates as insurance companies miscalculated mortality rates and searched for ways to deny claims and cut off benefits, figuring few of their terminated policyholders would fight back. Trial attorneys across the country eventually found evidence of corporate programs aimed at terminating seniors’ benefits, and helped stop these deplorable practices.

Unfortunately, while litigation has revealed incidences of abuse and neglect, many other offenses never see the light of day due to nursing homes inserting forced arbitration clauses in the fine print of lengthy admission contracts. Residents and their families often sign these contracts while under considerable stress and anxiety without realizing they are being stripped of their access to court. Congress has introduced legislation to ban forced arbitration in nursing home and other consumer contracts.

The report, titled “Standing up For Seniors: How the Civil Justice System Protects Elderly Americans,” can be found at www.justice.org/seniors.

Graco Stroller Recall

2010-10-21T10:10:00.002-05:00

As if you didn't have enough to worry about as a new parent:

Four deaths have been blamed on the older model versions of the Quattro Tour and MetroLite strollers made by Graco Children’s Products Inc. of Atlanta. For this reason, the company is now recalling about two million of those models. The four infant deaths referenced occurred between 2003 and 2005.

In addition to those four deaths, six other infants suffered either cuts, bruises, entrapment or breathing difficulties after being placed in those strollers. The potentially dangerous Quattro Tour strollers were made before November 2006 and the MetroLite strollers were manufactured prior to July 2007. The full Consumer Product Safety Commission detail on the recall is here.

Call us at 713-529-1177 if your child or someone you know has been hurt by these products, and we can provide you with your legal options.

Weight Loss Drug Meridia Pulled from Market

2010-10-08T17:12:00.001-05:00

Today, the obesity drug Meridia has been withdrawn from the U.S. market because of an increased risk of heart attack and stroke. Pharmaceutical giant Abbott Laboratories voluntarily agreed to pull the drug after a U.S. Food and Drug Administration review of data that showed a 16 percent increased risk for heart attack, stroke and death among people taking Meridia (sibutramine), compared with those taking a placebo.

Currently, about 100,000 people in the United States take Meridia, Dr. Gerald Dal Pan, director of FDA's Office of Surveillance and Epidemiology, noted at the news briefing.

The FDA approved Meridia in November 1997 for weight loss and maintenance of weight loss in obese people, and in overweight people with other risks for heart disease.

In a recent editorial, the New England Journal of Medicine called Meridia “another flawed diet pill.” They note that in return for offering a weight loss of under 9 pounds — less than 5% of the body weight of the overweight participants in the study — the drug had a one-in-70 chance of causing a heart attack or stroke.

If you have taken Meridia and have suffered a heart attack or stroke, contact us today to discuss your legal options.

Hip Implant Recall

2010-10-05T14:21:00.002-05:00

DePuy Othopedics Inc has announced the recall of their ASR Hip Resurfacing and Replacement Systems due to an abnormally high rate of failure associated with the devices. In total about 93,000 DePuy hip resurfacing and replacement devices are covered under the recall. The recalled components include the DePuy ASR XL Acetabular System and DePuy ASR Hip Resurfacing System. The resurfacing system was not approved for use in the U.S. and therefore should not be of concern to most Americans; however, thousands of Americans have had the DePuy XL Acetabular Hip Replacement System implanted.

The data shows that five years after implantation, about 12% of patients who had received the ASR resurfacing device and 13% of patients who had received the ASR total hip replacement needed to have a revision surgery.

We are providing free consultations and claim evaluations for individuals who received the DePuy ASR XL Acetabular System or DePuy ASR Hip Resurfacing System who have experienced:

Unexplained hip pain
Loosening of their hip implant
Failure of the hip replacement
Additional hip surgery to revise their implant

For a free consultation with us, please go to our website and fill out the contact form or call us at 713-529-1177.

Med Mal Costs Are Only 2% of Health Care Spending

2010-09-24T08:54:00.002-05:00

It is so frustrating to us that misrepresentations continue to be made by insurance companies in order to create fear in people.

Nowhere is this more apparent than in the "tort reform" of medical malpractice cases. A new study by the Harvard School of Public Health in the journal Health Affairs shows that medical malpractices costs are only 2% of health care spending in the United States. Although the full text of the study is not free online, you can read the abstract here.

Costs related to medical negligence litigation accounted for only 2.4 percent of total health care spending in 2008, far less than some tort “reform” advocates have been asserting, according to a new report. “This study, along with the vast majority of academic data, shows that limiting the rights of injured patients will do practically nothing to lower health care costs,” said American Association for Justice spokesman Ray DeLorenzi. Instead, our focus should be on preventing the 98,000 deaths that occur every year because of preventable medical errors.”

2010-09-10T13:10:00.003-05:00

Certain Zicam Class Actions Settled

2010-08-23T09:44:00.003-05:00

Zicam-maker Matrixx Initiatives agreed to settle certain Zicam class actions related to false advertising and warnings. Zicam has agreed to add warning labels to their products should the FDA allow the return of zinc-containing Zicam products to the market. We are pleased that Matrixx has taken this first step to resolving this litigation and continue to work hard to resolved the personal injury lawsuits.

Fosamax Trial Victory

2010-06-30T15:37:00.003-05:00

A jury returned an $8 million dollar verdict against Merck this week for its drug Fosamax which causes osteonecrosis of the jaw (ONJ). Basically, it is a rotting of the jawbone that is irreversible. Along with last year's $3 million dollar verdict for the IV form of the drug Aredia/Zometa, this verdict gives our Fosamax and Aredia/Zometa clients hope that justice will come for them too.

Not surprisingly, Merck claims it is seeking to overturn the verdict which it calls "excessive." I don't know, but it seems that an incurable rotting jaw from taking a dangerous drug is worth at least $8 million dollars.

Zicam MDL Update

2010-05-20T19:04:00.003-05:00

As most of our Zicam clients know, the MDL is moving along with the first phase of written discovery through the completion of fact sheets. In November of 2009, the Judicial Panel for Multi-District Litigation assigned all of the Zicam cases to Judge Frederick Martone in Phoenix, who will oversee pre-trial proceedings, discovery and the bellwether trial process for all of the lawsuits pending in the federal court system.

In the coming months, in addition to the production of fact sheets, we will be going through expert designations, establishing procedures for generic depositions, establishing procedures for document production relating to liability and scientific issues, and most likely a hearing to determine the scientific aspects of the case. It is expected that the first trials in the MDL will take place in 2011.

This blog has moved

2010-04-14T12:29:00.001-05:00

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Trial with Dogs: Helena Chemical v. Uribe

2010-04-05T09:41:00.002-05:00

Trial is so much more fun when you bring your dogs. They have really enjoyed the Ramada Inn--they got walked 5 times a day and got to watch Animal Planet.

Anyway, closing arguments postponed until Wednesday...here is some news from the Las Cruces Sun-Times regarding the trial. I can't comment on anything until trial is over:

Last day of testimony

Day 3 of Testimony

Day 2 of Testimony

Day 1 of Testimony

Reglan Side Effects

2010-01-25T15:15:00.002-06:00

Happy Belated New Year!

It's been extremely busy for us, so unfortuantely it means I am behind on blogging. We have been getting a lot of calls from former clients who take and/or used to take Reglan for GERD or acid reflux. Unfortunately, the FDA has previously issued a black box warning for this drug because it can cause a disease called Tardive Dyskinesia.

Tardive Dyskinesia is characterized by repetitive, involuntary, purposeless movements such as grimacing, tongue protrusion, lip smacking, puckering and pursing, and rapid eye blinking. Rapid movements of the arms, legs, and trunk may also occur. Impaired movements of the fingers may appear as though the patient is playing an invisible guitar or piano.

If you or family member has taken reglan or one of its generic alternatives and suffers from Tardive Dyskinesia contact us at 713-529-1177 for a free consultation.

Our Trial Against Chemical Companies Begins

2009-10-24T10:07:00.003-05:00

Well, it's finally here...the first trial against the chemical companies supplying the former Hayes Sammons Pesticide Plant has begun. The Monitor has a full story. There is a gag order in place so I can't comment on the trial at this time.

As bad as drunk driving

2009-10-02T12:57:00.002-05:00

Yes, it's been a while since posting, but that's a good thing--we've been swamped. We're about to start the big pesticide trial, but I'm taking a breather for an hour to pass along this safety information:

Something that caught my attention yesterday though about the dangers of using your cell phone and driving. It's frightening and a wake-up call to all of us. I know I've been guilty of doing this, but now I'm trying to be better. It's a long story but worth the read. Kudos to Exxon (a company that I usually don't kudo) for doing something about it:

In 2004, Exxon Mobil started asking the same question after it became concerned about the safety of its 90,000 workers and 100,000 contract workers, who drove up to 1.5 million miles each day, said Michael Henderek, the company’s safety executive at the time. The company wanted to know what a ban would do to the bottom line.
“Exxon Mobil is a corporation in which 50 percent of employees are engineers,” said Mr. Henderek. “It’s driven by data.”
The company determined that research equating the dangers of behind-the-wheel multitasking with drunken driving was reliable. So in early 2004, Exxon Mobil ran a pilot project, restricting some employees from using the phone while driving. It found no loss in productivity, and quickly imposed a ban for all workers and contractors.
“To not act was irresponsible,” Mr. Henderek said. “The risk to employees was much greater than any marginal benefit of the productivity you get.”
Exxon Mobil was particularly concerned about its big fuel trucks.
“The last thing you want to have,” Mr. Henderek said, “is an incident between the fuel fleet and the community.”

Thomas & Wan files new Zicam lawsuit with 117 clients

2009-06-22T18:42:00.004-05:00

Our firm filed a new Zicam lawsuit today with 117 plaintiffs against Matrixx Initiatives for their permanent loss of smell from using Zicam Cold Remedy. The Arizona Republic has a story here and the WSJ MarketWatch has a story here.

Zicam Client in Houston Chronicle

2009-06-19T08:59:00.002-05:00

The Houston Chronicle interviewed one of our Zicam clients here. The story highlights the safety issues and dangers of losing your sense of smell permanently. We represent many others like Mr. Ehler who need their sense of smell at the workplace such as chefs, firefighters, nurses, and refinery workers.

Fox News Story on Zicam

2009-06-16T22:23:00.003-05:00

We were interviewed last night on Fox News Houston regarding yesterday's announcement of Zicam's dangers and permanent loss of smell. Here is the full story.

US FDA Warns About Zicam

2009-06-16T15:58:00.001-05:00

The U.S. FDA has just come out with an advisory warning people not to use Zicam products containing zinc as they are linked to permanent loss of smell. Read the full advisory here.

We represent over 100 people who have permanent loss of smell and taste from using Zicam. This advisory confirms what our clients and Thomas & Wan have always known--these are dangerous products that must be taken off the market. Even to this day, Matrixx refuses to put a warning on the products that they can cause permanent loss of smell and taste. We are currently in litigation in Arizona state court over several of these cases.

Mercy from the Law

2009-06-16T08:52:00.003-05:00

Well, this is a first. I got pulled over yesterday for making an illegal turn right in front of the courthouse. Always a great way to start trial. Anyway, my DL and insurance were in the back of the truck with our trial boxes. So, I go back there, and the officer gives me a strange look and says, "I'm going to let you go this time...it looks like you got bird poop all over the back of your suit." Pepito saves the day! Now I know why I love animals so much. They are always looking out for us dumb humans.

The "best" health care in the world?

2009-06-05T09:11:00.002-05:00

We spend a lot of time in McAllen and looking at medical records from McAllen healthcare providers. It is always interesting to see that injuries, quite frequently occur not from the primary illness but from a test or procedure gone awry. This eye-opening article from the New Yorker may explain this phenomenon.

Caps Don't Save Money

2009-04-22T08:59:00.003-05:00

The Dallas Morning News has a good story on getting to the real issues in high health care costs, and it's not so-called greedy lawyers...it's the insurance companies. Damage caps do not work--they only punish children, retired people and low-income people. They don't work, period.

Insurance Industry Tricks of the Trade

2009-03-12T16:39:00.003-05:00

Want some free information on how the Insurance industry can unfairly deny your claim? The American Association for Justice has a great .pdf handout on how people become the victims of unfair and illegal insurance denials...it's called Tricks of the Trade. It's the kind of stuff that we as lawyers have to deal with sometimes, and it can be really frustrating.

Supreme Court Knocks Down FDA Preemption

2009-03-04T16:12:00.003-06:00

Today, the U.S. Supreme Court held that FDA drug regulation does not preempt common law claims in state courts. This is a huge victory for consumers! The Court's decision in Wyeth v. Levine allows consumers to move forward with lawsuits against drug companies that sell defective drugs. I am happily surprised at the 6-3 outcome, and the Court in its wisdom found that Congress never intended for FDA labeling rules to preempt lawsuits in state courts.

The American Association of Justice has more:

Writing for the Court, Justice Stevens said:

“If Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express preemption provision at some point during the Food, Drug and Cosmetic Act’s 70 year history…Its silence on the issue, coupled with its certain awareness of the prevalence of state tort litigation, is powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness.”

Justice Thomas, in a concurring opinion, also dismissed the Wyeth preemption argument, calling it unconstitutional:

“Because such a sweeping approach to pre-emption leads to the illegitimate – and thus, unconstitutional – invalidation of state laws, I can no longer assent to a doctrine that preempts state laws merely because they ‘stand as an obstacle to the accomplishment and execution of the full purposes and objectives’ of federal law.”

The Plaintiff in the case, Ms. Levine, was a musician who lost her arm and her livelihood due to the failure of Wyeth to warn about the dangers of Phenergan...more from the NYT:

Ms. Levine’s suffering began in the spring of 2000 when, suffering from a migraine, she visited a local clinic for a treatment she had received many times: Demerol for pain and Phenergan for nausea.

If Phenergan is exposed to arterial blood, it causes swift and irreversible gangrene. Therefore, it is typically administered by intramuscular injection. Ms. Levine’s lawyers said an intravenous drip is also quite safe.

But a physician’s assistant used a third method, injecting the drug into what she thought was a vein, using a technique known as “IV push.” The assistant apparently missed a vein and hit an artery instead, causing Ms. Levine’s right hand and forearm to turn purple and black in the following weeks, leading to amputation of much of her arm.

The F.D.A.-approved label warned that “inadvertent intra-arterial injection” can cause gangrene requiring amputation, but it did not rule out administering the drug by the “IV push” method. The Vermont trial judge instructed the jury that compliance with F.D.A. requirements did not establish that the warnings on the labels were adequate.

Justice Stevens noted that the trial record contained evidence of at least 20 reports of amputations similar to Ms. Levine’s since the 1960’s. Phenergan was first approved in 1955.The justices who sided with Ms. Levine on Wednesday said that “Wyeth could have unilaterally added a stronger warning about IV-push administration” without running afoul of federal regulations. Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined Justice Stevens, while Justice Clarence Thomas filed an opinion concurring in the overall judgment.

Preserving the Right to a Jury Trial

2009-02-23T16:11:00.003-06:00

Something Congress is doing right this month...preserving your right to a jury trial...from The American Association for Justice:

Consumers No Longer Forced to Sign Away Their Rights Under Arbitration Fairness Act

Bipartisan bill will protect Americans like Jamie Leigh Jones, John Donahue from abusive corporate practices

Washington, DC – Countless Americans will no longer be forced to give up their legal rights and enter unfair arbitration agreements under bipartisan legislation introduced today in the U.S. House.

Mandatory binding arbitration clauses are hidden in the fine print of everything from cell phone, credit cards, franchise and employment agreements to nursing home care contracts. These clauses force consumers or employees to give up their right to take their case to court in the event there is a dispute with the corporation.

The bipartisan Arbitration Fairness Act of 2009 (H.R. 1020), introduced by Rep. Hank Johnson (D-GA), will ensure that the decision to arbitrate be made voluntarily and after the dispute has arisen, so corporations cannot manipulate the arbitration system in their favor at the expense of consumers.

“The Arbitration Fairness Act will prevent negligent corporations from stacking the deck against consumers who unknowingly sign away their access to justice,” said American Association for Justice President Les Weisbrod. “Arbitration can only be an effective means to resolve disputes when both parties agree voluntarily, not when it is forced upon consumers in secret to limit their rights.”

The Arbitration Fairness Act will help people like Jamie Leigh Jones, who was raped, drugged, beaten, and then confined to a shipping container by KBR/Halliburton employees while working in Iraq. Because of a clause placed in her employment contract, KBR tried to force Ms. Jones to submit to a binding, secret, non-appealable arbitration. Ms. Jones had to fight to obtain access to the justice system because she unknowingly signed an arbitration clause as part of her 18-page employment contract.

John Donahue was a 93-year-old nursing home resident in Massachusetts. Because a nurse did not follow standard policy when operating a mechanical lift, he experienced an eye injury so severe that it required removal of his eye, and the infection caused by this injury later killed him. Once Mr. Donahue’s daughter pursued the case on behalf of her father’s estate, the nursing home presented what it claimed to be a document, which Mr. Donahue, at age 91 and without any family members or any other witnesses present, had supposedly signed. The nursing home was forcing mandatory binding arbitration on its own terms.

Americans overwhelmingly disprove of mandatory binding arbitration agreements. When consumers learn that the company picks the arbitrator, they give up their right to take the case to court, and binding arbitration applies even if they are seriously injured, 81 percent disapprove. The Arbitration Fairness Act also has wide support across party lines with no statistical difference between Democrats (+38) and Republicans (+37). AAJ’s polling can be found here

Uninsured Drivers on the Rise

2009-02-20T16:45:00.004-06:00

The Insurance Research Council has come out with a study that rising unemployment means more drivers who choose to drop their car insurance. As if you didn't have enough to worry about on your drive home...

We have been telling our friends, family and clients to always buy as much uninsured/underinsured coverage as possible. Many times you can get a lot of coverage for literally $15 extra per six-month period of your insurance premium. I think I have $300,000/600,000 or $500,000/$1,000,000. Get as much coverage as you can. We have had many clients who are hit by people without insurance or who have been victims of hit-and-runs. It's extremely sad and frustrating. Without uninsured coverage, those clients were out of luck to get any compensation or medical bills paid.

Thomas & Wan Wins Jury Verdict in Trip & Fall

2009-02-19T17:03:00.003-06:00

The lawyers of Thomas & Wan are pleased to announce a jury verdict in Jasper County, Texas of over $185,000 on behalf of their client who broke her ankle in two places after tripping on a dangerous ramp at a senior center. The ramp was in deplorable condition for seniors, disbled people or even able-bodied people. The ramp had rotted and missing wood, raised nails, wobbly and short handrails, an uneven surface and was too steep--all in violation of standard Texas and Federal building codes and the Americans with Disabilities Act. The client may have to have her foot amputated as a result of the trip and fall.

The verdict included $75,000 in future pain and suffering and $45,000 in future medical damages. Contributory negligence of the Plaintiff for 25% was found by the jury.

We Have Moved!

2009-02-10T13:28:00.003-06:00

Thomas & Wan, LLP has recently moved! We are now located at 1710 Sunset Blvd., Houston, Texas 77005 which is very close to Rice University. We are very happy to be in our new space and are located on the second floor.

New Mexico Residents File Lawsuit Against Helena Chemical

2008-10-15T11:05:00.003-05:00

Represented by Thomas & Wan, LLP, residents of Mesquite, New Mexico filed a lawsuit against Helena Chemical Company in Santa Fe District Court. The lawsuit alleges that Helena, without proper permits, operated a fertilizer/herbicide/pesticide mixing plant in Mesquite, New Mexico.

The mixing plant spans more than five acres of land and is located within yards of some residents’ homes. The lawsuit alleges that since Helena began its operations in 1989, it has caused large chemical spills to occur in and around the residents’ homes, has vented chemical dusts and fumes outside the Helena plant into the neighborhood and has contaminated the underground water below the plant. Prior to filing the lawsuit, the residents had tried to reach a compromise with Helena to stop the contamination of their neighborhood, but such efforts proved unsuccessful.

Coverage of the press conference announcing the lawsuit is here, here and here.

Interview on Hayes Sammons Hearing

2007-10-08T09:03:00.001-05:00

KURV 710AM in the Rio Grande Valley interviewed Lawsquawker's own Linda Laurent Thomas last week regarding this week's hearing to move forward with trial on our Hayes-Sammons lawsuit in Mission, Texas. Listen to the interview.

Pick Your "Friends" Carefully

2007-10-01T10:57:00.000-05:00

As Texans know, the ability to sue a negligent doctor or hospital is virtually impossible now that the tort reformers (read: insurance executives) got their $250K caps on non-economic damages (i.e., you can sue if you make a lot of money like an investment banker, but if you are a housewife, file clerk or bookkeeper, your damages are negligible).

Today, the Houston Chronicle exposed one of Texans for Lawsuit Reform's spokesmen Dr. Forney Fleming who advocated against med mal lawsuits. He failed to mention that he was reprimanded and fined by the Texas Medical Board and still has complaints pending:

He was eager to bash plaintiffs' lawyers, particularly those who targeted doctors. So TLR, a business group that has spent hundreds of thousands of dollars bashing plaintiffs' lawyers and winning restrictions on judgments against physicians and other defendants, signed him up as a volunteer speaker.

Fleming, however, left out some details of his professional life, including his reprimand and $7,500 fine by the Texas Medical Board in 2004 for misdiagnosing what turned out to be bone cancer in a 16-year-old girl's leg. The leg later was amputated. The board also accused Fleming of providing substandard care to six other patients, including an 81-year-old woman with a fractured hip. That formal complaint was still pending when he let his medical license lapse and retired last December. And, according to state records, Fleming was sued or threatened with suits for malpractice three times. All were settled out of court or resolved through mediation for undisclosed terms.

None of his professional problems was mentioned on the TLR Web site, but his profile was removed last week, within an hour after I informed a TLR spokeswoman about them.

Here is a link to his "removed" TLR profile by way of Burnt Orange Report and Texas Watch: Dr. Forney Fleming, Texans for Lawsuit Reform Spokesman

True Value of a Texas Worker

2007-09-14T08:40:00.000-05:00

Well, Texas has recently decided that plant owners will be shielded from liability by Worker's Compensation Laws if a contractor gets injured.

In Entergy Gulf States Inc. v. John Summers, the Texas Supreme Court held that "a premises owner that "undertakes to procure" work falls within the the Labor Code's definition of a general contractor, for purposes of qualifying for the exclusive-remedy defense."

This case marks a sweeping change in the ability of an injured worker to get any meaningful protection from a negligent landowner and ultimately discourages plant owners from making safety changes to reduce injuries in the first place. If there is a silver lining to the 2005 BP explosion in Texas City, it is the fact that it occurred before this ruling came out.

A sad day for Texans, but not surprising according to John Eddie Williams, a prominent Texas personal injury lawyer who was quoted in the Houston Chronicle's story today: "The court ruling followed several unsuccessful attempts in recent years by the business community to convince the Legislature to address the same issue."

Slow Death, Slower Justice

2007-07-03T09:39:00.000-05:00

The Texas Observer has a detailed story on our Mission lawsuit and the struggles of our clients to obtain justice against the Goliaths of the chemical industry. The story paints a good picture of the conditions at the time the plant was in full swing:

The plant exhaled pesticide dust like a vacuum cleaner with a full bag. The fan sucked poisonous dust and fumes from the factory, sending them into the neighborhood. Families left their windows open most of the year because they didn’t have air conditioners. Strong Gulf winds moved the dust around so much that residents said they could taste it. The poison blew off of trucks, open-top kettles, and piles of residue left outside, which neighborhood kids used like a community sandbox, according to former workers, locals and court records. Rainbow colored storm water frequently flooded unpaved streets, at times muddying dirt kitchen floors.

Texas Supreme Court Lifts Stay in Mission, TX case

2007-06-19T10:39:00.000-05:00

The Texas Supreme Court lifted its stay on our Mission, Texas case last Friday. The mandamus had been pending for two years. Our clients provided some video commentary for KRGV-Channel 5 here.

A Victory for Safety

2007-05-30T13:58:00.000-05:00

Common sense finally won last week when President Bush's pick to head the Consumer Product Safety Commission, Michael Baroody, withdrew his nomination. As you recall, Mr. Baroody was Executive Vice President at the National Association of Manufacturers (NAM) - a K Street lobbying behemoth devoted to helping big manufacturers evade accountability for their wrongdoing.

Maybe I should just start my own farm and ranch

2007-04-25T12:17:00.000-05:00

Just a follow up to yesterday's post on food safety, the FDA is now going to look at imported human food and potential for contamination. It's about time...frankly it's a national security issue...all our inexpensive products today come here through our seaports, airports and border crossings. Maybe we should eat things that don't travel half way around the world (just think of the savings in gasoline to haul stuff over here)? Just a thought. CNN has the full story.

Reading, I Mean Testing, the Tea Leaves

2007-04-24T13:24:00.000-05:00

So in keeping with the consumer safety topic, here's something of concern...the contaminated wheat gluten in pet food was just the tip of the iceberg when it comes to tainted or downright dangerous food produces from China. I'm almost shocked, but sadly, I'm not surprised...this from a former FDA official...the AP has the full story:

Exporting countries are supposed to help. But governments such as China, where tainted food scandals are common, can have a stunning lack of oversight, said William Hubbard, a top FDA official for 14 years who now advocates for stiffer food safety regulations. He recounted how one supplier drove a truck over tea leaves to dry them with exhaust, which leached lead into the leaves.

Safety for Your Family or Corporations?

2007-04-20T10:30:00.000-05:00

So, I thought the Consumer Products Safety Commission was supposed to protect you and me and our families (and our pets) from dangerous, unsafe products. Now, an industry lobbyist has been tapped to run the Commission. I'm thinking of taking the Commission's link off our blog if the Baroody's nomination is approved. Not that people can't have a change of heart and switch sides, but considering his track record, you can't blame me for being concerned.

The Stop Baroody campaign is reprinted below: http://www.stopbaroody.com/

President Bush has nominated Michael Baroody - one of Corporate America's leading anti-consumer henchmen - to head the Consumer Products Safety Commission (CPSC) - our top government agency protecting millions of Americans from injury and death from unsafe products.
For the past 13 years, Michael Baroody has served as Executive Vice President at the National Association of Manufacturers (NAM) - a K Street lobbying behemoth devoted to helping big manufacturers evade accountability for their wrongdoing.
The CPSC protects American consumers from deadly or harmful products - ranging from flammable children's pajamas to collapsing cribs. Now, a leader in the fight against the CPSC has been nominated by President Bush to head this important agency.
During his tenure at NAM, Michael Baroody:
Fought to allow a higher level of arsenic in drinking water:
NAM claimed that negligent manufacturers would feel a pinch in their profits if forced to prevent their waste products from poisoning local communities. Arsenic is often found downstream from negligent chemical producers and users that knowingly try to bypass EPA Regulations - thus endangering all communities downstream. A deadly poison, even in the smallest amounts, it causes shock, vascular disease and a plethora of cancers in the body.
Opposed attempts to ban tobacco billboards near schools: NAM claimed federal agencies were "silencing commercial speech without authority." Since 1998, cigarette companies have spent more than $40 million a day to market their deadly product.
Lobbied to eliminate the rights of Americans exposed to asbestos to hold the responsible corporations accountable: As head of the front group "Asbestos Alliance," Baroody fought to cut off victims' access to our courts, the only place negligent corporations could be held accountable for knowingly exposing victims to this deadly material. NAM described victims' efforts to hold the accountable those corporations that knowingly exposed them to asbestos as "an anchor weighing down the business community." Even though the risks were discovered in 1940 by the corporate pushers of asbestos, 27.5 million workers have been exposed to asbestos on the job and hundreds of thousands of workers and their family members have suffered and died from asbestos-related diseases. In 2003 alone, nearly 10,000 people in the United States died from asbestos-related diseases.
Lobbied to keep corporate documents regarding unsafe products from the public: Over the years, the release of secret corporate documents in court cases have informed the public of corporate negligence and dangerous products. Secrecy agreements allow negligent corporations to hide this information from the public, such as the Ford Pinto's recklessly placed gas tank or even BP's easily preventable refinery explosion which killed 15 workers.
Lobbied to immunize negligent corporations from responsibility for their actions: NAM lobbied for legislation that would have provided immunity to manufacturers, no matter how deadly their negligence. Corporations that knowingly place dangerous or deadly products on the market such as unsafe baby cribs that kill small children or kids' pajamas that are highly flammable would not be held accountable if Baroody and NAM get their way.
Pushed to limit fines for corporate wrongdoing that placed American consumers in direct danger: NAM testified that the CPSC "should be prevented from inflicting economic harm," thus ensuring an even lower standard of accountability for corporations producing and marketing dangerous or deadly products, regardless of the harm they cause to innocent Americans.
Worked to eliminate rules that protect and keep safe Americans in the workplace: NAM went so far as to sue the Occupational Safety and Health Administration to stop enforcement of rules regarding worker safety. NAM lobbied to keep manufacturers from having to publicly disclose how much lead they were producing.
NAM has consistently lobbied on behalf of corporations more intent on protecting their bottom lines than the public safety. Worked to immunize corporate CEOs from criminal liability for marketing deadly products to the public, maintaining such actions might slow "productivity."As an example, knowingly marketing clearly defective bulletproof vests - leading to deaths of soldiers, police and elected officials - would not be a criminal act.

Tear Down that Warehouse, Mr. EPA!

2007-04-13T13:36:00.000-05:00

Well, it's finally happening. The contaminated Hayes Sammons Warehouse located on the EPA Helena Chemicals Superfund Site is coming down. The residents of Mission, Texas have worked very hard to pull down the warehouse, an ugly reminder of the source of their contaminated properties and bodies. Thomas & Wan has the full story here.

Brain Damage from Hydrogen Sulfide Exposure

2007-04-13T13:28:00.000-05:00

The family of Jesus Deleon is suing Motiva Enterprises for negligence and violations of OSHA standards which left their primary bread winner brain damaged. Mr. Deleon was working in an industrial tank at Motiva Enterprises when toxic hydrogen sulfide gas was carelessly allowed into the tank. All of his co-workers were lucky enough to climb out in time, but Mr. Deleon did not share the same fate. He was overcome with fumes and now has permanent brain damage. Thomas & Wan is humbled to represent Mr. Deleon and his family against a negligent and careless company. The Southeast Texas reporter has more.

Zelnorm--FDA says Risks Outweigh Benefits

2007-04-02T10:33:00.000-05:00

Well, the FDA is stepping up to the plate and putting scrutiny of drug companies who spend more on advertisements than research. Novartis, the maker of Zelnorm, a drug prescribed for irritable bowel syndrome (IBS) reluctantly took Zelnorm off the market on Friday, March 30th.

Zelnorm was linked to a statistically significant number of heart attacks, strokes and angina pain. In fact, Novartis even admits that it knew about increased angina pain back in 2002, but the company did not feel it was statistically significant. This recent review of the same data showed differently.

This tidbit is very interesting..."In a 2003 presentation, Thomas Ebeling, chief executive of Novartis's drug division, said that Zelnorm's sales in the United States were closely tied to consumer advertising. 'The weeks we go off the air, the growth flattens. When we restart, you see the growth accelerate again,' Mr. Ebeling said." NYT has the full story.

If you take Zelnorm, contact your doctor immediately for help in getting on a new and safer drug. If you take Zelnorm and suffered a heart attack, stroke or angina pain, contact us to protect your legal rights.

Throwing Out Good Science in the Name of Profits

2007-03-13T09:52:00.000-05:00

Bringing a lawsuit against a corporation for a defective product or toxic chemical has always been difficult--at the very least, a consumer and her lawyers are David against the Goliath corporation.

In order to prove a product caused an injury requires many experts trained in the relevant scientific fields. Yet, it's not good enough just to have the number one expert in a field--you've got to have other experts, research, studies and the smoking gun documents from the corporation you are suing (assuming no shredding was done) to prove your case. In 1993, the Supreme Court ruled that courts, i.e. judges, would be the gatekeepers of determing what is science and what is not. This was the seminal Daubert v. Merrell Dow case. Since then, some courts have taken Daubert, and made the rules even more stringent--all to the detriment of consumers with valid cases.

Barry Yeoman of The Nation has a well-written piece on the real world effects that Daubert and its progeny have had on hurting consumers and helping corporations avoid responsibility for their bad acts.

This quote sums it up nicely:

Until significant changes take place, say Daubert critics, the system will continue to harm more than scientists' reputations--it will also harm ill and injured Americans. "We do need tools to make sure that bad science doesn't get to court," says David Michaels, a George Washington University epidemiologist who served as an assistant energy secretary during the Clinton Administration. "But Daubert is an imprecise tool, and its application has resulted in miscarriages of justice."

Drug Commercial? Change the channel!

2007-01-30T09:18:00.000-06:00

This is the reason why you should change the channel when commercials come on…

Media
Study: TV Ads Overstate Benefits of Medication
by Patricia Neighmond

Morning Edition, January 30, 2007 · The amount of money drug companies spend on TV ads has doubled in recent years. Studies show they work: Consumers go to their doctor with a suggestion for a certain prescription drug they saw advertised on TV. Now a study in the Annals of Family Medicine raises questions about the message the ads promote.
You're most likely to see drug ads during prime time, especially around the news. Researchers analyzed 38 ads aimed at people with conditions like hypertension, herpes, high cholesterol, depression, arthritis and allergies.

The drug industry says the ads arm consumers with information. Researchers found that the information was technically accurate, but the tone was misleading.
"Typically, what we would see with these ads is that before taking a particular prescription drug, the character's life is out of control and the loss of control extended beyond the impact of their health condition," says UCLA psychologist Dominick Frosch, who headed the study.
For example, herpes patients were portrayed as being incapacitated for days. Insomniacs were utterly out of synch on the job. Depressed patients were friendless and boring at parties.
"When the character is then shown taking the drug, he then magically regains complete control of his life," Frosch notes.

None of the ads mentioned lifestyle changes that could also help treat the condition. That's not surprising, given that the ads are just another form of mass marketing.
But prescription medicines are not soap.

Dr. David Kessler, dean of the school of medicine at the University of California, San Francisco, headed the FDA for seven years, under the first President Bush and then President Clinton. He opposed TV advertising for drugs.

"We tend to forget pharmaceuticals are powerful agents, not just any commodity," he says. "Advertising them based on their emotional appeal is something that has great risks."
After Kessler left the FDA, rules were relaxed and TV ads for drugs were permitted. That was a mistake, Kessler says.

He insists the FDA should be responsible for insuring overall accuracy, both in tone and content. And he says the agency should ask this question:

"Does the ad in the end convey a fairly balanced view of what this drug is going to do — not some wish list?"Kessler says a complete ban on TV ads for prescription drugs is unlikely, now that ads has been approved. But he says regulation can — and should — be tightened

Zicam Nose Sprays

2007-01-04T10:01:00.000-06:00

Happy new year...it's been a long time since we've posted, but we're back from weddings, honeymoons, etc.

In light of the current cold and flu season, please reconsider what you take as a nasal decongestant. Zicam, a nasal spray/swab, is heavily marketed in drug stores. It contains zinc which has been known for years to cause the permanent loss of your sense of smell, aka anosmia. It's a terrible thing to have, especially since you lose your sense of taste as well. And, it can be dangerous (imagine not being able to smell the gas leak in your house). Or, detrimental to your career (people in the restaurant business).

Funny, the parent company of Zicam reported that sales will be down due to the slow start to the cold and flu season...strange that there are companies rooting for you to get sick.

Here's more about multi-million dollar lawsuit settlements against Zicam. Here's a Consumer Reports article from this month re safety and efficacy of Zicam. Find out more about Zicam and anosmia and your legal rights.

Justice Delayed is Justice Denied

2006-11-20T09:24:00.000-06:00

The McAllen monitor has an update on our Mission lawsuit.

"Justice delayed is justice denied."--William E. Gladstone, British Prime Minister, 1809-98.

Change is Good, Ellen Cohen and South Dakota voters

2006-11-09T11:38:00.000-06:00

Good news all over the country with the election results...change is inevitable and change is good. A shout out to Ellen Cohen for her victory over a Tom Delay lackey. Pathetic that Martha Wong didn't even call to concede...it shows a lack of moral character.

Great news also for the integrity and independence of the judiciary--South Dakota voters were smart enough to look past fringe special interests and keep the judiciary protected from being sued by unhappy parties. Voters overwhelmingly rejected the South Dakota initiative that would have stripped judges of their legal immunity and made them vulnerable to lawsuits over unpopular decisions.

Corpus Christi Residents Demand Accountability

2006-11-02T11:54:00.000-06:00

Well, Corpus Christi, Texas residents are finally fed up with the lack of action by industry and government to their serious pollution problems. A local environmentalist group announced Friday it will post monthly results of an air monitoring program on its new Web site. Citizens for Environmental Justice spokeswoman Suzie Canales said data will report air quality near the refinery zone on the group's Web site at www.cfejcorpuschristi.org. The Corpus Christi Caller has more.

The article fails to mention one of the most serious "side effects" of benzene exposure--Acute Myelogenous Leukemia (AML). Sadly, we have several clients who worked in the Corpus Christi area in solvent plants, asphalt paving and refineries that were exposed to benzene and now have AML. There are many industrial occupations at risk for benzene exposure and AML. Yet, government doesn't seem interested reducing the safety risks of working with benzene...certainly industry isn't interested...

Grand Old Hypocrites

2006-11-02T08:31:00.000-06:00

We voted today--just a reminder to do so if you haven't already--remember, you can't gripe if you didn't vote. It's the American thing to do.

Here's something to think about when you do go vote...hypocrites--people who demand tort reform for us common folk but turn around and file lawsuits, some frivolous, when they or their family members get injured (minor car wrecks, "negligent" doctors and demands for pain and suffering). I guess it's only pain and suffering when it happens to them, not us. We call them our Grand Old Hypocrites...

HYPOCRITES OF “TORT REFORM”
By Emily Gottlieb
Deputy Director, Center for Justice & Democracy

INTRODUCTION
No one likes a hypocrite. Yet one would be hard pressed to find more hypocrites than in the “tort reform” movement. Take a look at the record of a host of lawmakers, lobbyists and even journalists who complain about lawsuits and argue that the rights of injured consumers to go to court should be scaled back because we are too “litigious.” Yet when they or family members are hurt and need compensation for their own injuries, often minor ones, these same individuals do not hesitate to use the courts to obtain compensation, to right a wrong, to hold a wrongdoer accountable or to obtain justice.

The same is true for corporations that have funded the “tort reform” movement. These companies support efforts to immunize themselves from liability for harming consumers. But when these same companies believe they have been wronged by a business competitor, they are the first to sue.In this report we take a look at the cases of several proponents of tort restrictions who do not “practice what they preach.” We examine individuals who have sued sometimes for millions of dollars while at the same time championing damage caps and other severe liability restrictions for others. We also look at corporate litigants who have lent financial or other support to groups like the American Tort Reform Association (ATRA), the Manhattan Institute and state business coalitions like New Yorkers for Civil Justice Reform (NYCJR). [1] Notably, tort restrictions advocated by these organizations virtually never limit the rights of corporations to sue business competitors for commercial losses. This list is by no means exhaustive but merely representative of businesses and other “tort reformers” who say one thing but do another when it comes to the civil justice system.

INDIVIDUAL HYPOCRITES
George W. Bush
As Texas Governor, George W. Bush was one of the “tort reform” movement’s biggest proponents. One of Bush’s first acts as governor in 1995 was to meet with representatives of nine Texas Citizens Against Lawsuit Abuse (CALA) chapters in a salsa factory outside of Austin, after which he declared a legislative “emergency” on “frivolous lawsuits.” Over his two terms, Bush signed a series of brutal bills that severely reduced injured consumers’ rights to go to court.However, when it comes to solving problems involving his own family, Bush heads straight to court. In 1999, Bush sued Enterprise Rent-A-Car over a minor fender-bender involving one of his daughters in which no one was hurt. Although his insurance would have covered the repair costs making a lawsuit unnecessary, Bush sought additional money from Enterprise, which had rented a car to someone with a suspended license. In this case, Bush seemed to understand one of the most important functions of civil lawsuits — to deter further wrongdoing. The case settled for $2,000 to $2,500. [2]

ABC News Correspondent John Stossel
As 20/20 viewers know, there are few things that irk John Stossel more than people who file lawsuits. “We all have pain and suffering in our lives. And if each time we hang onto it until we get some kind of compensation, society can’t work,” he says. [3] When speaking before corporate-funded groups such as the Cato and Manhattan Institutes, organizations whose members advocate severely restricting the ability of injured consumers to sue companies for their injuries, he can barely contain his contempt for those who file lawsuits and the attorneys who represent them. [4] But what did John Stossel do when a pro wrestler hit him in 1986 after Stossel implied pro wrestling was fake? He sued. And in settling his lawsuit, Stossel reportedly accepted $200,000 for his pain and suffering. [5]

U.S. Senator Rick Santorum (R-Pa.)
As a United States Senator, Rick Santorum has repeatedly supported limits on consumers’ rights to seek compensation in the courts. In 1994, Santorum sponsored the Comprehensive Family Health Access and Savings Act that would have capped non-economic damages at $250,000. [6] In a 1995 floor speech supporting damages caps, Santorum said, “We have a much too costly legal system. It is one that makes us uncompetitive and inefficient, and one that is not fair to society as a whole. While we may have people, individuals, who hit the jackpot and win the lottery in some cases, that is not exactly what our legal system should be designed to do.” [7] But the same rhetoric does not seem to apply to Senator Santorum. In December 1999 Santorum supported his wife’s medical malpractice lawsuit against her chiropractor for $500,000. [8] At trial, the Senator testified that his wife should be compensated for the pain and suffering caused by a botched spine adjustment, claiming that she had to “treat her back gingerly” [9] and could no longer accompany him on the campaign trail. After the verdict, Santorum refused to answer phone calls asking what impact the case had on his views of “tort reform.” [10] According to his spokesman Robert Traynham, “Senator Santorum is of the belief that the verdict decided upon by the jury during last week’s court case of his wife is strictly a private matter. The legislative positions that Senator Santorum has taken on tort reform and health care have been consistent with the case involving Mrs. Santorum.” [11] In January 2000, a judge set aside the $350,000 verdict, deeming it excessive, and offered a reduced award of $175,000 or a new trial on damages only. [12]

Alaska State Representative Mark Hodgins
Alaska’s Republican Assemblyman Mark Hodgins was a proponent of a severe “tort reform” package, including caps on damages, that was enacted in Alaska in 1997. Yet on two separate occasions — once in 1989 and again in 1994 — Hodgins filed “loss of comfort, care and consortium” claims against the families of teenage drivers who struck his wife’s car. The 1989 lawsuit settled out of court. The outcome of the 1994 suit, filed two years after the accident, is unknown. [13]

“Lawsuit Abuse” Group Founder and Trustee, Sterling Cornelius
Sterling Cornelius, owner of Cornelius Nurseries and Turkey Creek Farms in Houston and a trustee of the corporate front-group, Citizens Against Lawsuit Abuse (CALA), is one of the most vocal businessmen complaining about lawsuits and advocating tort restrictions in Texas. With the help and support of the Texas CALA group, Texas enacted a series of “tort reforms” in 1995, including caps on punitive damages and severe restrictions on lawsuits filed under Texas’ Deceptive Trade Practices Act. [14] But in 1993, Sterling filed a $100 million lawsuit against DuPont, claiming that its fungicide, Benlate, damaged his companies’ crop and nursery. Among the damages Cornelius sought were $75.3 million in punitive damages under the Deceptive Trade Practices Act as well as additional punitive damages. Because his lawsuit was filed before enactment of the 1995 legislation, his lawsuit was not affected by the “tort reforms” that passed. [15]

Florida State Representative Art Argenio
Republican Representative Art Argenio in Florida has been one of the state’s most outspoken supporters of restricting the rights of injured Floridians to go to court, calling himself “a leader” in this movement. But in 1993, when Argenio was injured by a driver who hit him as he jogged along the street, what did he do? He sued the driver, of course. Moreover, campaign literature distributed by Argenio’s opponent noted that he filed suit even though his insurance company had paid all his medical bills. Argenio, it seems, wanted more money to compensate him for what he said were “severe and permanent injuries” — i.e., noneconomic damages, the kind of injuries “tort reform” proponents continuously rail against. The case ultimately settled. The compensation he received must have helped him recover. Three years after the accident, Argenio ran in a marathon. [16]

Florida State Representative Mark Flanagan
As a member of the House Civil Justice and Claims Committee, Mark Flanagan was a major force behind severe tort restrictions that were enacted in Florida in 1999, sponsoring and co-sponsoring bills that protect manufacturers of defective products, while calling Florida “the most litigious society in the world.”But it was a different story when his own daughter fell from a daycare center’s jungle gym and broke her leg in 1995. Flanagan sued both the day care center and the manufacturer of the jungle gym, alleging that the manufacturer “negligently and carelessly designed” the apparatus and that the preschool failed to properly supervise his daughter. Like many injured victims whose rights Flanagan’s legislation decimates, the lawsuit alleged that his daughter suffered from “severe pain” and “lost the capacity to enjoy life.” After 18 months of litigation — and two months before his bid for re-election — Flanagan settled for an undisclosed amount. [17]

Texans for Lawsuit Reform Board Members
In April 1995, Texans for Lawsuit Reform (TLR) helped lobby for legislation that capped punitive damages, limited governmental and professional liability, undermined joint and several liability and decimated Texas’ Deceptive Claims Practices Act. [18]Yet at the time this legislation passed, TLR Board members Leo Linbeck, [19] Richard Trabulsi and Richard Weekley had themselves filed over 60 lawsuits either personally or as business owners. Between 1978 and 1995, Leo Linbeck’s construction company was the plaintiff in at least 37 lawsuits. In one suit, which was settled confidentially, his company sued its own insurance company for triple damages stemming from the deaths of three workers in a construction accident. In another case, settled in November 1988, Linbeck sued for punitive damages.By 1995, Board member Richard Trabulsi had also filed suit numerous times. In 1986, as the owner of Richard’s Liquor and Fine Wines, Trabulsi sued Walgreen’s to force it to stop selling alcohol in Texas. He also filed a personal-injury suit against his company in which the company prevailed. He told the Houston Post, “I have had access to the courts a number of times I had forgotten.” [20] As of 1995, TLR President and co-founder Richard Weekly, head of Weekley Properties and Weekley Development and a partner of David Weekley Homes, had sued six times; his companies had sued 14 times. [21]

W.V. Supreme Court Justice Richard Neely
In January 1994, West Virginia Supreme Court Justice Richard Neely testified before the New Jersey Senate Commerce Committee as it considered bills designed to abolish the state’s tort system. Appearing as a paid spokesman for the corporate front-group, New Jersey Citizens Against Lawsuit Abuse, Neely attacked every player in the civil justice system, from lawyers to judges to injured victims who sue.Those pronouncements were surprising given Neely’s personal history with the civil justice system. In 1986, he reportedly sued TWA because his bags arrived 70 minutes late. He demanded $38,000, $3,000 of which was a “speaker’s fee” for telling other passengers about the delay. Three years later, the case settled for $12,500. In 1993, Neely sued Goodyear Tire after a wheel fell off his father’s Cadillac. He sought $49,000 that included $2,000 for himself for five-hours worth of telephone calls to his parents. As Neely testified before the New Jersey Senate, the case was dismissed. [22]

Citizens for a Strong Ohio Advisory Board Member R. Emmett Boyle
In 1996, the Ohio Chamber of Commerce lobbied for a package of laws that made it more difficult or impossible for injured Ohio citizens to sue wrongdoers and be fairly compensated for their injuries. [23] On August 16, 1999, the Ohio Supreme Court struck down this package of laws in its entirety, calling it “openly subversive of the separation of powers and, in particular, of the judicial system” established by the Ohio Constitution. State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451 (1999). During the 2000 elections, Citizens for a Strong Ohio, a group created by the Ohio Chamber of Commerce, [24] spent an estimated $5 million to oust Supreme Court Justice Alice Robie Resnick, who wrote the Sheward decision. [25] Yet when it comes to his own company, Citizens for a Strong Ohio Advisory Board Member R. Emmett Boyle does not hesitate to sue. In 1995, Boyle’s company, Ormet Primary Aluminum Corporation, sued Certain Underwriters at Lloyd’s of London, Employers Insurance of Wausau, Globe Indemnity Company and Home Indemnity Company, seeking coverage for environmental contamination at its Hannibal, Ohio reduction facility and remediation costs. After five years of litigation, the Ohio Supreme Court upheld the lower court’s decision to throw the case out, finding that the company had known it was liable for the contamination yet waited 16 years before notifying its insurers. Ormet Primary Aluminum Corporation v. Employers Insurance of Wausau et al., 88 Ohio St.3d 292 (2000).

NOTES[1] Information relating to specific corporate sponsorship of ATRA and the Manhattan Institute is based on John Gannon’s article, “Tort Deform – Lethal Bedfellows” (Essential Information, 1995), citing Chesebro, Kenneth, “Galileo’s Retort: Peter Huber’s Junk Scholarship,” Amer. Univ. L. Rev., Volume 42, No. 4 (Summer 1993). Very few state “tort reform” groups publicly list their corporate members. One of the few that does, with the most comprehensive public list available, is New Yorkers for Civil Justice Reform. NYCJR’s list can be found at the organization’s website, http://www.nycjr.org/.[2] Burger, Timothy, “Bush sued Enterprise Rent-A-Car over daughter’s fender bender,” Daily News, August 26, 2000; “Bush sued rental agency over fender bender,” Houston Chronicle, August 26, 2000.[3] Martin, John, “ABC takes aim at the ‘blame-game,’” Providence Journal-Bulletin, October 26, 1994. See, Stossel, John, “The Blame Game: Are We a Country of Victims?” ABC News, October 26, 1994.[4] Rose, Ted, “Laissez-Fair TV,” Brill’s Content, (March 2000), found at www.brillscontent.com/ features/stossel_0300.html, Cato Policy Report, (September/October 1999), found at http://www.cato.org/pubs/policy_report/v21n5/catoevents.html; Stossel, John, “Pandering to Fear,” keynote address at Manhattan Institute conference, January 20, 1999, listed at http://www.manhattan-institute.org/html/past_events_1999.htm; Solomon, Norman, “Media Moguls on Board,” Extra!, (January/February) 1998, found at www.fair.org/extra/9801/cato-media-moguls.html; Warren, James, “Born-Again Free-Marketer,” Chicago Tribune, December 4, 1994.[5] Lacy, Mike, “ABC report looks at system of litigation,” Tampa Tribune, January 2, 1996; Martin, John, “ABC takes aim at the `blame-game,’” Providence Journal-Bulletin, October 26, 1994. See also, Hoffman, Ken, “Talking on the radio and making some (air)waves,” Houston Chronicle, January 3, 1996; Slewinski, Christy, “Stossel Contemptuous In Trouble With Lawyers,” Daily News, January 2, 1996. Notably, on the August 11, 2000 edition of ABC’s “20/20,” Stossel was forced to make an apology for fabricating data that disparaged the benefits of organic food. Makiinger, Felicity and Jim Rutenberg, “Apology Highlights ABC Reporter’s Contrarian Image,” New York Times, August 14, 2000.[6] Keller, Amy, “Judge Strikes Down Award in Santorum Case,” Roll Call, January 10, 2000; White, Ben, “POLITICS; For a Senate Champion of Malpractice Damage Limits, a Controversy Close to Home,” Washington Post, December 25, 1999.[7] “Wife’s Malpractice Win Is Jury Award Pa. Senator Doesn’t Mind,” Commercial Appeal, December 15, 1999.[8] Keller, Amy, “Karen Santorum Wins Lawsuit Va. Jury Gives Senator’s Wife $350,000 Victory,” Roll Call, December 13, 1999.[9] Id.[10] “Santorum’s Views On Litigation Questioned,” Pennsylvania Law Weekly, December 20, 1999.[11] “Lawsuit critic’s wife wins medical claim,” Telegraph Herald, December 15, 1999.[12] Keller, supra note 6.[13] Kizzia, Tom, “Phillips Weathers Whitmore’s Strong Challenge,” Anchorage Daily News, November 6, 1996; Kizzia, Tom, “Tort Reform-Backer Is A Plaintiff Himself,” Anchorage Daily News, November 1, 1996.[14] See, e.g., Sterling, Cornelius, “When juries give plaintiffs outlandish awards, little folks pay,” Houston Chronicle, May 23, 1993; Piller, Ruth, “Fledgling group takes on abuse of lawsuits,” Houston Chronicle, February 28, 1993; Houston CALA website, http://www.calahouston.org/reform95.html.[15] “Tort reform lobbyists have litigious history,” Austin American-Statesman, April 13, 1995.[16] Argenio, Art, “Argenio: I Have Never Filed A Frivolous Lawsuit,” Stuart News/Port St. Lucie News, August 30, 2000; Rosynsky, Paul, “Flier Details `93 Suit In Attack On Argenio,” Stuart News/Port St. Lucie News, August 30, 2000.[17] Lyons, Tom, “The truth doesn’t always lie somewhere in the middle,” Sarasota Herald-Tribune, October 24, 2000; Makiouquere, Brett, “State Rep. Flanagan Settles Negligence Suit,” Sarasota Herald-Tribune, September 1, 1998; Russell, Gordon, “Paradox? Reformer Wages Suit,” Sarasota Herald-Tribune, March 13, 1998.[18] Patterson, Kelly, “More tort reform needed, businessman says,” Dallas Morning News, March 9, 2000; Glaberson, William, “Damage Control: A special report: Some Plaintiffs Losing Out In Texas’ War on Lawsuits,” New York Times, June 7, 1999; Texans for Lawsuit Reform website, http://www.tortreform.com/.[19] Linbeck headed the commission that investigated the November 18, 1999, Texas A&M bonfire collapse. He said that liability questions “did not figure into his commission’s work. The commission, however, appeared to let off the hook two private entities that legal experts say also could face lawsuits, especially since potential damages from A&M are so limited.” Lee, Christopher, “Despite commission, Aggies still dwell on deadly bonfire collapse,” Dallas Morning News, May 4, 2000.[20] “Tort reform lobbyists have litigious history,” Austin American-Statesman, April 13, 1995.[21] Id.[22] “Ambulance Chase Neely’s Cash Quest,” Charleston Daily Gazette, December 29, 1995; Baker, Gerald, “‘America’s Dumbest Judge’ Argues for Tort Reform,” New Jersey Law Journal, February 7, 1994; Bleemer, Russ, “Senate Weighs Tort Reform, And Angers the Trial Bar,” New Jersey Law Journal, January 31, 1994.[23] Showalter, Kathy, “Time limits, payout caps major tort reform issues,” Business First-Columbus, Vol. 12, No. 36, May 3, 1996; O’Malley, Christine, “Tort revisers find liability nagging issue,” Business First-Columbus, Vol. 12, No. 31, March 29, 1996; Miller, Tim, “Push On For `Tort Reform’ Action,” Dayton Daily News, January 19, 1996.[24] Hershey, William and Kristen Convery, “Teamsters Rally For Resnick, Other Labor-Backed Candidates,” Dayton Daily News, November 1, 2000.[25] Hallett, Joe, “Biggest Money In Court Races Still Secret,” Columbus Dispatch, December 16, 2000.[26] Dummit, Ralph, “Couple Wins County Council’s Approval To Run Winery At Farm Along Highway 94,” St. Louis Post-Dispatch, December 13, 1999.[27] “Japan-America patent war,” Business Line, April 14, 1998; “Kodak Sues Sony Over Patent,” The Record, April 1, 1993.[28] “Antibiotic: Italian Settlement,” Pharmaceutical Executive, May 1, 2000; “Biochimica Opos and Eli Lilly Settle Lawsuits Involving Cefaclor,” PR Newswire, January 25, 2000.[29] Raymond, Jeffrey, “Dueling Pick-Up Lines: Md.-Based Car Rental Defends Its Ad Rights,” Daily Record, May 12, 1998; “Federal Judge Rules in Rent-A-Wreck’s Favor in Trademark Dispute with Enterprise Rent-A-Car,” Business Wire, September 26, 2000.[30] Asher, Ed, “Federal judge permanently enjoins Mobil from infringing on Exxon,” Houston Chronicle, September 11, 1998; Sit-DuVall, Mary, “Jury orders Mobil Oil to pay in patent lawsuit,” Houston Chronicle, August 12, 1998.[31] Sommer, Constance, “Auto Companies Gear Up to Take on Cyberpirates,” Corporate Legal Times, August 2000; Truby, Mark, “Automakers fight cyberpirates,” Detroit News, May 30, 2000.[32] “Johnson & Johnson/Merck Announces Favorable Ruling In SmithKline Beecham Lawsuits,” PR Newswire, October 13, 1995; “Johnson & Johnson/Merck Files Suit Against SmithKline Beecham For False Advertising,” PR Newswire, September 6, 1995.[33] Galewitz, Phil, “J&J Sues Bausch & Lomb Over Lenses,” Seattle Post-Intelligencer, March 20, 1999.[34] “Pfizer files second suit in takeover fight,” National Law Journal, December 6, 1999; “Warner-Lambert Sues Pfizer Over Drug,” New York Times, November 30, 1999.[35] Koberstein, Wayne, “Standing on Scale: Chairman Bill Steere Likes Pfizer’s New Size,” Pharmaceutical Executive, Vol. 20, No. 8, August 1, 2000; “Peer Pressure; Warner-Lambert will explore Pfizer’s merger offer,” Med Ad News, Vol. 19, No. 2, February 1, 2000.[36] Testimony of David Mauer before the Senate Subcommittee on Administrative Oversight and the Courts, “Cost Of The Legal System,” May 2, 1995.[37] Testimony of Julie Nemens, “Product Liability Law Revision,” Hearing of the Senate Commerce, Science and Transportation Committee,” March 4, 1997.[38] Cornelius, Frank, “Crushed by My Own Reform,” New York Times, October 7, 1994.

The Center for Justice & Democracy is a non-profit, non-partisan public interest organization that works to educate the public about the importance of the civil justice system, and fights to protect the right to trial by jury and an independent judiciary for all Americans. CJ&D is funded by individual contributions and foundations, including the Deer Creek Foundation, the Nathan Cummings Foundation and the Stern Family Fund. It is not connected to any business or trial lawyer organization.

Wong Wrongs

2006-10-23T15:40:00.000-05:00

In the spirit of election season, we bring you a local Houston, Texas race for State Representative in District 134. For the record, we endorse the sane candidate: Ellen Cohen. Make sure you get out and vote!

Current State Rep. Martha Wong represents one of the most affluent and educated districts in Houston. Yet, watching her in debate and reading about her political mishaps is unbelievable--we are starting to feel sorry for her, and we're not even voting for her.

Take a look at some of Wong's wrongs:

Endorsement problem(s)

Signage issues

Mailing/lying issues

Bribery of High School Students: In an uncomfortable moment, Wong mentioned that she sits on the board of the University of St. Thomas, adding, “so if any of you want to go there…”

It's no wonder the spinich is poisoned

2006-10-17T14:09:00.000-05:00

When the head of the FDA is lying and cheating, is it any wonder that the food and drug suppliers are getting away with murder?

(From the AP)
Former FDA chief Lester Crawford has agreed to plead guilty to charges of failing to disclose a financial interest in PepsiCo Inc. and other firms regulated by his agency, his lawyer said Monday.
The Justice Department accused the former head of the Food and Drug Administration in court papers of falsely reporting that he had sold stock in companies when he continued holding shares in the firms governed by FDA rules.
Court papers say Crawford chaired the Food and Drug Administration's Obesity Working Group while he and his wife owned shares worth at least $62,000 in soft drink and snack food manufacturer Pepsico Inc., based in Purchase, N.Y. In addition, the documents say, he held stock worth at least $78,000 in food product manufacturer Sysco Corp., based in Houston.

While he and his wife owned the stock, the panel Crawford chaired met with representatives from the packaged food industry and gave congressional testimony encouraging manufacturers to relabel serving sizes to give calorie counts greater prominence.

Documentary on Medical Errors

2006-10-11T11:06:00.000-05:00

TV can be good for you--make sure you tune in tomorrow night (Thursday) for this 4-part documentary--it's sure to be educational (plus, I don't think PBS will be running a fund drive, so they won't be interrupting every 10 minutes for a donation).

Four-part PBS series will explore medical errors
(taken from The Belleville News-Democrat by Roger Schlueter)

One million more are injured, many by drug-dosing errors like the ones that recently killed three premature infants in Indianapolis. In fact, it is estimated that medical errors kill as many people each year as breast cancer, AIDS and car accidents combined.

The four-part series will explore both the quality crisis and the innovative solutions being undertaken to improve the medical care patients depend on. The one-hour programs will be shown locally in Houston at 9 p.m. on Thursdays through Oct. 26 on Houston PBS Channel 8.

Each program will examine critical health-care issues facing the country today, including patient safety, medical and medication errors, hospital-acquired infections, family-centered care and effective management of chronic disease.

But rather than simply assign blame for the failings, the series spotlights solutions by showcasing the stories of individuals and institutions that are working to ensure better care.

Tomorrow night "First Do No Harm" will examine the impact of medical errors and patient safety in two hospitals. It will follow the efforts of doctors like Donald Berwick, founder and CEO of the Insitute for Healthcare Improvment, who are challenging their colleagues to live up to their medical school oath.

On Oct. 19, "The Stealth Epidemic" will take up the challenge of treating common chronic diseases that now affect nearly 100 million Americans. Conditions such as diabetes and heart disease now consume 70 percent of all health-care resources.

The final program, "Hand in Hand," will look at how doctors can retain the human touch even as medicine becomes more technologically sophistacated and complex. The show focuses on Julie Moretz, whose son Daniel was born with serious heart disease. She helped the Medical College of Georgia's Children's Medical Center change how it treats families to become a leader in patient- and family-centered care.

The show will be hosted by Peabody- and Emmy award-winning journalist John Hockenberry, who wound up needing intense medical care himself after an accident on the Pennsyvania turnpike left him a paraplegic in 1976.

Failed Drug Administration

2006-09-29T10:28:00.000-05:00

Scary but not surprising... The Food and Drug Administration recently requested a report card on how it is doing. The result? The FDA is in serious disrepair with only itself and the pharmaceutical industry to blame. The Washington Post has the scoop on the report.

This is the worst part:

R. Alta Charo, a panel member and bioethicist at the University of Wisconsin at Madison "also cited 'a lack of collaboration among divisions, tensions [and] inappropriate management' at the FDA, saying officials who focus on safety issues are chronically underfunded compared with those who handle new-drug approvals."

"Part of the problem, the report said, is that the money paid by industry to help fund FDA's regulators, under a 1992 law designed to speed up new drug reviews, cannot under the law be diverted to FDA's safety division, which suffers from chronic underfunding."

Not sure what "inappropriate management" means...maybe that's a polite term for "interference by Big Pharma."

It's no surprise that our firm is getting calls everyday for people who have suffered serious health problems as a result of drugs rushed to market. Fosamax, Zometa, Ketek, Ortho-Evra, Tequin, Trayslol...we are learning about new ones every day from our clients.

We talk with patients and their doctors alike who haven't been told anything about serious side effects by drug companies or the FDA. The system is beyond broken when it takes serious injury or death to push the FDA to beg for warnings from its backers.

But What They Didn't Tell You: The Medical Malpractice Myth

2006-09-28T09:22:00.001-05:00

The medical malpractice crisis. Tort reform. Frivolous suits. Runaway juries.

These are terms thrown around by politicians and talking heads. But what do they really mean? What is the truth behind the rhetoric?

Tom Baker, a professor at the University of Connecticut School of Law, is the author of an outstanding book The Medical Malpractice Myth. This is a must read for any policy maker, voter, doctor or patient. I would recommend it to insurance executives or defense lawyers, but they already know the truth behind the myth. The excerpt is a lengthy read, but it's very well-written.

EPA back for more cleanup in Mission, Texas

2006-09-28T08:52:00.000-05:00

The EPA is once again in Mission, Texas for more cleanup of the former Hayes-Sammons pesticide plant, an infamous Superfund site. In its latest report, the EPA describes the site as causing "unacceptable threats to human health and the environment." So, despite the fact our lawsuit has been stalled by the pesticide corporations and their lawyers, actions are taking place to remove the pollution. Going up against Goliath is always an uphill battle--at least we've got the government and truth on our side. The McAllen Monitor has the latest.

Welcome to Thomas & Wan's Law Blog

2006-09-26T14:59:00.000-05:00

We are happy that you found us! This blog is dedicated to providing information about your health and safety under the law as well as preserving the right to trial in the United States. We'll also share our views on personal injury rights and interesting topics on the environment, medical negligence and product safety.

LawSquawker owes its name to our firm's mascot Pepe the Cockatiel who chirps and squawks daily with us at the firm.