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June 2010 Archives

8 Million Dollar Verdict Against Merck For Its Osteoporosis Drug

A jury in New York awarded a plaintiff eight million dollars last week against Merck Pharmaceutical because of its drug Fosamax. In this suit and others the plaintiffs have claimed that Merck misrepresented the drug's safety and failed to warn doctors and patients that it might hamper blood flow to the jaw, causing jawbone-tissue death. The plaintiff (Shirley Boles, 72) had been taking the drug for 10 years. She was prescribed the drug by her doctors because of certain stress fractures in her foot. She subsequently developed problems with her jaw causing bone deterioration  following an extraction of two teeth. Her bone continued to deteriorate resulting in leakage  through her chin. She is now limited to eating soft foods  Fosamax, available in pill or liquid form, is part of a group of medicines known as bisphosphonates. Included in this group is Boniva the drug which has been heavily promoted by the actress Sally Field. These drugs are part of a group of medicines categorized as post menopausal which have become big business for many drug companies. At the time of trial counsel for the plaintiff claimed that these drugs have no known benefit. The complaint alleged that the drug Fosamax is defectively designed and unreasonably dangerous. The Boles case is the first to go to trial against Merck.

Carpenter Wrong Again About Lawyers And Medical Malpractice

I have heard many accusations from Paul Carpenter over the years but now he has gone too far. He has now indicted personal injury lawyers for premeditated first-degree murder. Yes, we are apparently responsible for patients receiving massive overdoses of radiation because doctors are so fearful of a medical malpractice claim that they send their patients for unnecessary x-rays and scans which will inevitably lead to their deaths from radiation cancer. During the last month we have seen firsthand what unregulated big corporate entities like BP can do. I have heard snippets and quotations from every president alive and dead about our dependence on foreign oil. I have even heard the words of our former president Ronald Reagan promising us energy independence. His words came to mind this morning as I read Paul's column titled: "Radiation risk blamed on lawyers". Those words? - "There he goes again". Paul's source of information in support of his outrageous conclusion is contained in an article written by AP Medical Writer Marilynn Marchione on Medical radiation treatment. The article discusses the totality of radiation that Americans receive from airport scanners to cell phones to medical radiation-type testing like x-rays and scans. The article was very informative detailing the sometimes overuse of these tests, some of which use a higher or lower doses of radiation. An example is quoted where a young girl had received 14 high-radiation tests by her doctors looking for kidney stones until one of her doctors discovered the high number of tests. The Food and Drug Administration is taking steps to post warnings and information on these machines concerning the amount of radiation they emit. There is also consideration on requiring doctors to keep track of the amount of testing and that it becomes a part a patents chart. All good stuff. Of course, in his typical fashion when it comes to lawyer bashing, Paul Carpenter ignored the thrust of the article to seize an opportunity to blame cancer on lawyers and call us criminals. The article goes on to list 10 theories for why radiation testing is overused. She lists reasons such as "ease of use and accuracy". She states that tests "have become a crutch for doctors afraid of using exams and judgment". ER docs are often faced with making life and death decisions and the fastest way to make a determination is with a CAT scan. She cites patient pressure placed on doctors to "figure out what's wrong". Even insurance companies can require tests in certain diagnoses. I could go on but Paul chose one isolated sentence from the entire article upon which to base his murder charges. A one-line reference that states that malpractice fear of a missed heart attack or burst appendix could cause the use of such a test. That's it - one small line taken out of context from a very informative piece. If any blame is to be placed, I suggest that the author is placing it on the medical community. I don't know about you, but if there is a question that my appendix may be burst or I am having a heart attack then - please let this serve as notice - I WANT THE TEST.  Finally, I must address the continued misinformation regarding medical malpractice lawsuits and the never-ending spew that these suites are frivolous and that lawyers take most of the money. The statistics just do not bear this out. Medical malpractice suits are down as much as 40% to 50% across the state and the cost of bringing these suits to trial is so expensive that lawyers simply cannot afford to involve themselves in such unmeritorious cases. If Paul took the time to read the facts he would know this. I have written to him and e-mailed him suggesting that we should sit down and talk and listen to the lawyer's side, but he has never responded. Why would he? He then might have to reevaluate his cockamamie theories and print the facts. Hey, we all know that would not make good copy and he is not a journalist - just an opinionated columnist. Dennis F. Feeley

BP Causes Tort Reformers To Rethink Consequences

Have you noticed that the tort reformers have been conspicuously silent during this - the worst tort disaster in American history? Hum, I guess like Rosanne Roseannadanna( played by SNL's late and great comedian Gilda Radner) would have said, "never mind". The president  has insisted and BP has agreed to put up $20 billion to be handled by a third party administrator who will decide how to compensate the injured people and wildlands of Gulf Coast. Since the leak continues to spew tens of thousands of gallons of oil a day it is impossible to assess whether $20 billion is even close to paying for their damages.   Here's another thought: Does this mean more "big government" intervention? I bet the tea party conservatives are having a hard time with this one. Will corporate America, or in this case the United Kingdom, do the right thing on their own, and is this another chance for us to consider whether tort  reform advocates should eat their words or head down to Gulf with sponges and mops to help with the clean-up? In a recent article from the Wall Street Journal, Emeritus Professor of Law at the University of Chicago Richard Epstein suggested that a liability cap should not be imposed on BP. Professor Epstein is not a liberal mouth piece for anyone as those who have followed his career know. He asks the question of what mix of sanctions do we need to prevent and cure events like Deep Water Horizon (even the name conjures up a sci-fi movie trailer). He says:  "The first element in the mix is a no-nonsense liability system that fastens full responsibility on the parties who run dangerous operations, no excuses allowed. Accordingly, we have to be especially wary of statutory caps ..."  He also points out that:  "A tough liability system does more than provide compensation for serious harms after the fact. It also sorts the wheat from the chaff--so that in this case companies with weak safety profiles don't get within a mike of an oil derrick". He believes that insurance underwriting will do a better job in pricing risk then the government. The professor makes sense; we don't need government to regulate - but a strong tort system to hold business accountable. If there is one thing we have learned in the last couple of years,  it's that big, and I am talking big, big business,  has one primary focus - profit. I am not saying this is a bad thing, it can be  a good thing, but  corporations have no social consciousness, so they don't understand their own power to screw things up at so many different levels. Just look at the public face of BP over this crisis. Is it just me or do their spokespeople just not get it? I certainly don't get true contrition from their remarks and that's because what they represent is not flesh and blood but balance sheets and accounting reports.  The next time you hear or read that tort reform is necessary consider the source and consider where the poor people in the Gulf might be without it. One final quote from Professor Epstein: Tort remedies are essential to protect people (and their property) who do not have contractual relations with defendants from harms such as air and water pollution. The legal system should never allow self-interested parties to keep for themselves all the gains from dangerous activities that unilaterally impose losses on others--which is why the most devout defender of laissez-faire must insist, not just concede, that tough medicine is needed in these cases. ... Dennis F Feeley

Supreme Court Limits Arizona Clean Election Law

Previously I did an analysis of the Supreme Court case in Citizens United vs. The Federal Election Commission (scroll down for entire blog). In the Citizens United case Justice Kennedy writing for the majority overturned the McCain Feingold amendment of the federal election laws. Using the First Amendment as his crutch and spear he and the majority ruled that  Citizens United (a political action group) should be treated no differently than any other citizen when it comes to making financial contributions to political campaigns. Consequently, large corporations will have unlimited financial power to influence a political campaign. Now, Justice Kennedy once again has taken the lead in what could possibly result in another victory for big business and candidates with unlimited financial resources. Arizona, who has been the subject of attack by constitutional advocates for its new law allowing police to detain suspicious looking individuals whom they think may be illegal immigrants, has its own campaign finance law. Arizona's Clean Elections Law which was approved by voters in 1998 was designed to control corruption in state legislature. The law provides for candidates who agree to abide by limits on campaign spending to receive public matching funds. In those states who have clean election laws (Maine, Arizona, Massachusetts, New Mexico, Connecticut , Vermont, Wisconsin, and even one of my favorite cities Albuquerque) the laws provide that publicly financed candidates who are outspent by a privately funded candidate  will normally receive additional funds (sometimes called "rescue funds") to match their privately funded opponent, up to a cap, with the intent of assuring that a candidate who runs with private funding will not outspend his publicly supported opponent. Most of Arizona's house races have used this publicly funded option. Two years ago the court struck down the Millionaires Amendment of the Mcain-Feingold law which allowed a candidate to raise more money through larger donations if his opponent was spending lavishly. Justice Alito said that this amendment was a drag on the free speech of the millionaire candidate because he or she was effectively penalized for spending more money. Now the Arizona law is being challenged. The lower court struck down the law and the 9th Circuit reversed and said the law was not unconstitutional. An appeal was filed with arguments to be heard later this year. But, in an unusual ruling Justice Kennedy handed down a one page order prohibiting the candidates from receiving any public funds until full argument and a decision. Maybe this wouldn't ordinarily be a terrible thing but the primary election for governor is scheduled in August and the incumbent Gov. Jan Brewer was scheduled to receive a $700,000 public installment which she now will not receive. Her opponent Buz Mills has already spent over $2,000,000 on his race and it's just the primary. The final ruling in this case is bound to influence the clean election laws of all those other states and put the electorate and the election back into the hands of those with the deepest pockets. It would appear that the balance of power in the Supreme Court when it comes to campaign financing is clearly with the conservative branch and with Kennedy on their side I would look for more to come. Dennis F Feeley

Oil Spill Litigation A Sure Thing - BP Damage Control Just Gets Worse

I don't know about you but the truth is I don't know who to believe about the cause or the severity of this colossal oil spill. We all know its bad but  just how bad is not clear. Is there a plume or isn't there a plume?  The more news I read and hear the more confused I get. Will the finger-pointing ever stop? The truth is we -  you and I -  and all of us who continue to remain addicted to the black drug in the ground are as responsible as BP. But,  I will save that rant for another day. What I find most interesting is the battle to control the media information. This news -  hot off the press  www.cnbc -----> BP has purchased the search terms "oil spill" "volunteer" and "claims" from Google for an undisclosed amount. Since more people get their news from the internet then the newspapers, guess what? When the innocent news junkie (like me) does a search they will be directed to BP's site where they can give you their spin.  This is after the President chided them yesterday for spending $50 million on TV advertising. Its been said many times but bears repeating, big corporations like BP have only one agenda and have more money then the news networks that would hold them accountable. $50 million on TV to spread their story or $50 million to influence a political campaign (see my previous blog on Citizens United vs. Federal Election Commission). It all about the spin.  As trial lawyers we will do what me must to protect all those little guys whose lives will be completely changed. We can only wonder what voodoo BP will try in order  to avoid their responsiblity?  Perhaps, bankruptcy or merger? One thing is for sure - it's times like these that Americans can feel good about our system of justice. The worse man-made disaster in history occurred in India about 30 years ago when a  Dow Chemical pesticide plant leaked poisonous gas that killed 8,000 people outright, and a total as high as 30,000 people. What did they pay in civil penalties? About $400 million. Thats it, $400 million for the lives of 30,000 people and the untold suffering of thousand of others. Dow settled quickly before the smoke had settled and thus avoided billions in additional liability. Be sure of one thing - that will not happen here. Dennis F Feeley

Chrysler Recalls 700,000 Jeeps And Minivans

Chrysler Motors is recalling 700,000 Caravans and Jeeps. Sticking gas pedals seem to be the recurring nightmare that plagues auto makers throughout the world. Chrysler is trying to avoid the public relations nightmare of  Toyota who refused to acknowledge their problem until the federal government got involved by issuing the recall almost immediately. Chrysler's problems involve their 2007 model. According to the National Highway Traffic and Safety Administration there were 5 complaints of sticking or binding gas pedals. It appears that the sticking pedal systems are manufactured by CTS. Corp of Indiana. These are the same people who made the pedal systems for the problem Toyotas. Our product liability law in Pa. protects consumers against these types of defective products. If you suspect that your Chrysler is having braking problems contact you nearest dealer for details on the recall. Dennis F Feeley

Toxic Chinese Drywall Cases Get Certified By A Federal Court

For those who have been following the Chinese Dry Wall dialogues, a federal court judge yesterday certified a class action lawsuit against distributors and manufacturers of the toxic drywall. A Miami judge certified the case involving 152 families based on product liability. According to Bloomberg, over 2100 people, nationally, are plaintiffs in coordinated nationwide federal drywall litigation. There may be as many as 40,000 plaintiffs out there. Florida and Louisiana seem to be the two current hotbeds, in part because of their high levels of humidity  During the building boom, hundreds of millions of pounds of drywall was shipped to ports around the United States from China. By June 2008, the state Department of Health had received its first complaint of sulfur odors from a homeowner. Toxicology testing that followed showed some drywall imported from China appeared to be emitting sulfur-based gases that corrode metal, although no cause had been determined. A task force has been assembled composed of the U.S. Consumer Product Safety Commission, The EPA, The Center for Disease Control and the U.S. Department of Housing and Urbana Development. Testing continues but a partial study has revealed that drywall made in China emits higher levels of sulfur and strontium then U. S. made product. The complaints being made claim that the drywall emissions cause corrosion to metal and air conditioning cores, blackened electrical wires and jewelry. Health complaints have alleged that the gases irritate eyes, causes bloody noses, rashes and insomnia. These product liability claims are being vigorously pursued by trial attorneys across the country whose work make our homes and workplaces safer. Dennis F Feeley

Opposition To Local Cell Phone Bans Continue To Mystify

This mornings Letter section of the Morning Call contained yet another readers complaint about the Valley's new cell phone laws. Both Bethlehem and Allentown have passed laws making it illegal to use a hand held cell phone while driving. Previously I blogged on this topic when a local lawyer raised opposition to Allentowns law (scroll down to see blog on Joe Maher). This mornings writer agrees that driving with a cell phone is dangerous but believes that the law is in violation of Pennsylvania's motor vehicle code which prohibits municipalities from creating laws which are inconsistent with the rest of the State.  He states, " we cannot have differing vehicular laws varying from county to county, city to city..." He claims its a money making scheme - Hogwash. I am reminded of a Broadway play later turned into a movie staring Jack Nicholson titled, " one flew over the cuckoos nest". In it Nicholson's character is a con artist who has avoided a prison sentence by convincing the authorities that he is crazy, and as such he is placed in a mental hospital where he quickly becomes the "bull loony". His scheming behavior runs him amuck with the head nurse who sees him for what he is. It's not long before the nurse cracks down and instructs the orderlies to get him in line. One evening after lights- out an orderly discovers him brushing his teeth and reads him the rule which he is violating. McMurphy (Nicholson's character) says he doesn't understand the rule and is instructed that if people were allowed to brush their teeth at anytime it would result in chaos. "People would be brushing their teeth at all times of the day and what would that be like?", he is chided. "We cannot allow indiscriminate brushing". A long story to make a short point. Harrisburg has failed to take the initiative on the cell phone issue. All of the States around us have laws restricting cell phone use. Why don't we? Cell phone use causes accidents which can result in injury. This is uncontroverted. Who's in control?  The patients or the asylum?  Just imagine, dozens,  if not hundreds of cell phone laws throughout the State each making our highways and children safer.  Lets not stand on formality.  Maybe the writer is correct that we should not have inconsistency, but the people running the asylum need to see that the inmates mean to "brush their teeth when they are dirty" regardless of the perceived chaos. We need to get Harrisburgs attention and the cities of Allentown and Bethlehem are our McMurphy. Maybe Easton will be next. Dennis F Feeley

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