Tampa Bay Personal Injury Lawyer - The Litigation Process

First Federal Ortho Evra Trials Scheduled

Brenda Fulmer — Mon, 31 Dec 2007 18:05:24 GMT

On December 6, 2007, Judge David Katz, the federal judge who oversees the Ortho Evra multi-district litigation proceedings in Cleveland issued a scheduling order for the first trials to be conducted in the federal system. Judge Katz oversees more than 1,400 lawsuits pending against Johnson & Johnson (http://www.jnj.com/home.htm) and its subsidiaries relating to the controversial Ortho Evra birth control patch. The patch was marketed as an alternative to modern low-dose oral contraceptives, but it is now known that the patches deliver as much as 60 times higher doses of hormones than other alternatives without providing any greater efficacy. Many years ago, birth control pills contained higher doses of hormones, but the dosages have been reduced over the years after high-dose medications were associated with an unacceptable increase in adverse events, including strokes and blood clots. Ortho Evra has also been associated with an increased risk of heart attacks, strokes, and the formation of blood clots in the lungs and legs.

Seven cases involving plaintiffs from Ohio have been selected for the initial (or bellwether) trial process in the federal MDL proceedings. Five of the cases involving plaintiffs who survived their injuries, including the following plaintiffs: a twenty-four year old woman who suffered blood clots in her lungs and brain in July of 2005 after using Ortho Evra for two weeks; a thirty-two year old woman who developed deep vein thrombosis and a pulmonary embolism in April of 2004; a forty-one year old woman who developed a blood clot in her leg and multiple blood clots in her lungs in July of 2005; a twenty-two year old woman who suffered a heart attack after using the Ortho Evra patch for two months; and a twenty-five year old woman from developed a pulmonary embolism after use of the patch for two months in April of 2003. This bellwether trial group also includes a personal injury claim brought by the parents of a 14 year-old girl who used the patch to regulate her menstrual cycle and suffered a deep vein thrombosis in July of 2005. The remaining case is a wrongful death claim filed by the surviving husband and infant son of a university volleyball coach who died of cardiac arrest at the age of twenty-five after using the patch for one month.

The first trial will begin on June 24, 2008, and a second trial will occur on July 22, 2008. The Court has not yet selected the cases to be included in these first trials, and indicated that the cases that are not selected initially will be tried as soon as the Court's calendar permits. The parties have been ordered to complete fact discovery by January 31, 2008 and expert witness discovery by March 28, 2008. A Daubert hearing on scientific issues has been scheduled for April 15, 2008.

Originally posted at InjuryBoard by Brenda Fulmer

Closing The Chapter on HRT Litigation in 2007

Brenda Fulmer — Mon, 31 Dec 2007 15:37:34 GMT

Great strides were made in 2007 to educate the courts and juries about the great deception over the past few decades that led many to ingest combination hormone therapy products such as Prempro and Premarin in combination with Provera. Conventional wisdom about these hormones is finally shifting, especially in light of an unprecedented drop in national cancer registries that dovetails with the drop in use of the drugs after publication of the WHI Study results in July of 2002. All of this new data is also helping to answer the question of whether these drugs promote the development of breast cancers (and they do). It is a shame that the drug manufacturers were unable or unwilling to provide answers to these important questions during the decades when women were ingesting the drugs after being reassured that the risks of invasive breast cancer and ovarian cancer were non-existent or insignificant, especially when balanced against the "body of evidence" of HRT benefits that included supposed protection against heart disease, Alzheimer's disease, and a number of other significant conditions. Today, many of these supposed benefits have been disproven, and women have far more choices in dealing with menopausal symptoms.

A number of trials were completed during 2007. Several favorable verdicts were obtained in state court in Philadelphia on behalf of plaintiffs against Pfizer and Wyeth with awards ranging from $1.5 million to $3 million. Unfortunately, those verdicts were overturned by judges, but appeals are pending and hopefully the verdicts will be restored by the appellate courts in 2008. Two cases were tried in the federal MDL proceedings in Little Rock, and both of those trials resulted in verdicts in favor of Wyeth. In October of 2007, a state court jury in Reno returned a monumental $134 million verdict on both compensatory and punitive damages in favor of three plaintiffs who all developed invasive breast cancers after long-term ingestion of combination hormone therapy products, which included equine-derived estrogens (such as those contained in Premarin and Prempro) and a synthetic progestin (as was included in the name-brand Provera and in the generic formulation known as medroxyprogesterone acetate). Several other trials were canceled after Wyeth and Pfizer settled the claims of those plaintiffs for confidential sums.

There are a number of additional trials scheduled against Wyeth and Pfizer for 2008 on behalf of women who developed breast cancer after long-term use of HRT drugs. These trials will be held in the federal multi-district litigation proceedings in Little Rock, Arkansas and in state courts in New Jersey, Kentucky, Alabama, and Florida. The law firm of Alley, Clark, Greiwe & Fulmer is currently preparing for the first trial in Florida involving the wrongful death of a Pinellas County woman who died in late 2006 after a valiant battle with advanced breast cancer that was diagnosed after her use of Prempro.

Originally posted at InjuryBoard by Brenda Fulmer

Wyeth Facing 3 More HRT-Induced Breast Cancer Survivors

Brenda Fulmer — Mon, 10 Sep 2007 09:54:26 GMT

Jury selection will begin on September 10, 2007, in the latest round in the HRT litigation involving Wyeth. Pfizer was also a defendant in the case, but, according to Bloomberg, settled with the plaintiffs in late August. This trial involves the claims of three Nevada women, one of whom is terminal, who developed breast cancer after taking the combination hormone replacement therapy drugs Premarin (with Provera) and Prempro.

An earlier case in Reno state court (McCready) was settled just days prior to that trial by Wyeth. The HRT litigation is focused on the failure of Wyeth, Pfizer, and other manufacturers to properly test combination hormone therapy products, over-promotion of the alleged benefits of the therapy, and failure to warn or minimization of risks associated with the drugs including the risk of breast cancer.

The claims of nearly 7,800 women who developed breast cancer after ingesting HRT drugs are pending in state and federal court in the HRT. A number of HRT trials have been completed resulting in several verdicts for the plaintiffs. More trials are expected in the coming months in state courts and in the federal MDL proceedings in Little Rock.

For more information on this subject matter, please refer to the section on Drugs, Medical Devices, and Implants.

Originally posted at InjuryBoard by Brenda Fulmer

Off-Label Drug Promotion - New Litigation Frontier?

Brenda Fulmer — Mon, 10 Sep 2007 08:41:00 GMT

Schering-Plough is now facing eight lawsuits in coordinated federal MDL proceedings in Newark. These lawsuits follow a plea agreement in which the company agreed to pay $435 million to settle criminal and civil charges stemming from its improper, off-label marketing programs and payment of "kickbacks" to prescribing physicians. The pending lawsuits involve several popular Schering-Plough drugs: Intron and PEG-Intron (chronic hepatitis), Temodar (brain tumors), Eulexin (prostate cancer), Integrillin (heart conditions), and Fareston (breast cancer). One of the examples of improper conduct by Schering-Plough was the payment of $1,000 to $1,500 for each patient that prescribing physicians enrolled in a clinical trial for a cancer drug that, apparently, Schering never even sought to have approved for use.

The $435 million settlement was the third such settlement in five years for the company, which has paid approximately $1.3 billion in civil and criminal fines since 2002. However, Schering-Plough is not alone in this type of conduct. Years of pharmaceutical litigation have shown that it is not uncommon for drug company sales forces to reward their highest prescribing physicians with invitations to participate in small studies of somewhat questionable scientific value in exchange for the payment of tens of thousands of dollars.

These lawsuits against Schering-Plough include claims under New Jersey's Consumer Fraud Act and have been brought by unions and health insurers who allege that they were defrauded into paying for expensive Schering medications when there were other safer, more effective, or cheaper medications available for their members. A similar consumer fraud class action brought by health insurers who paid for Vioxx prescriptions was struck down by the New Jersey Supreme Court last week.

These types of actions represent a new frontier for pharmaceutical litigation, as they focus on how fraudulent pharmaceutical marketing efforts have driven up the costs of prescription drugs. The industry has always tried to shift the focus instead to their investments in research and development, but the truth is that most of their budgets are instead spent on expensive direct-to-consumer television advertising, aggressive sales forces that personally visit physicians on a regular basis, and payments to prescribing physicians for studies to expand the use of their drugs and counter the claims of competing drugs. If we truly want to make drugs affordable, we need to eliminate off-label promotion and kickback schemes and give the FDA the support and legislative authority that it needs in order to properly police the pharmaceutical industry.

For more information on this subject matter, please refer to the section on Drugs, Medical Devices, and Implants.

Originally posted at InjuryBoard by Brenda Fulmer

The Losses That Really Sting A Trial Lawyer

Bob Carroll — Fri, 09 Feb 2007 09:45:02 GMT

Winning and losing cases is the lot of trial lawyers. We have our unbelievable wins and our equally unbelievable losses. The feelings of an experienced trial lawyer are expressed at Albany Lawyer in his post, Why it's hard to be a trial lawyer.

I can only add that losing hurts more when it happens before a case can be decided by a jury. The derailment of a personal injury claim by the entry of a Summary Judgment, a Directed Verdict or a Final Order of Dismissal is particularly galling. It never has a feeling of justice about it. I can still remember those few instances over my 35 years of practice when my client and I were shown the courthouse door before a jury of our fellow citizens could determine the merits of our claim. The memories are painful to experience.

Originally posted at InjuryBoard by Bob Carroll

The Huge Surgeon's Bill - A Grenade In A Personal Injury Claim

Bob Carroll — Sun, 04 Feb 2007 07:54:07 GMT

When a surgeon bills one of my injured clients $75,000 or more for a single surgical procedure, several things happen, not necessarily in this sequence:

1. I regret my decision to attend law school rather than medical school.

2. I wonder if there has been a typo on the bill.

3. Any group health insurance company to whom the bill is submitted immediately pulls out its microscope and chopping knife.

4. Any insurance adjuster to whom I provide the bill as part of a claim raises serious questions about the credentials of the surgeon, the nature of the surgery, the reasonableness of the charges and, ultimately, the validity of the liability claim I am submitting.

Think how you would react if you were told your cup of coffee was a $25 item. (Starbucks excluded.)

Unreasonably high (read that outrageously high) medical charges are not helpful to anyone making a personal injury claim. They often require me to have chats with medical providers and to work much harder in the negotiations with the liability insurance company. Sometimes an astronomically high surgeon's bill forces a claim into litigation.

Once in litigation the reasonableness of the surgeon's bill, as well as all medical charges, is a matter of proof. The Illinois Trial Practice Weblog has a series of articles on medical bills which provide an overview of the issues and procedures involved. Although the articles are written for attorneys they demonstrate the effort required by the civil trial lawyer just to achieve jury consideration of medical expenses.

Proving Up Medical Bills #4: More About Reasonableness

In most jurisdictions, including Illinois, proving up medical bills at trial requires evidence that the charges for medical services were reasonable. Usually, the reasonableness of a bill can be easily established with proof that the bill was paid. But what if the bill hasn't been paid yet?
If the bill hasn't been paid, you'll have to work a little harder.

Originally posted at InjuryBoard by Bob Carroll

Your Claim Deserves An Experienced Litigator

Bob Carroll — Sat, 03 Feb 2007 09:50:02 GMT

Should your personal injury claim be handled by a tall lawyer or one with a warm personality? Should he have a way with words? What law school should he have attended? I don't have a clue. And, I don't think it matters.

What does matter (and it matters a lot) is what fellow InjuryBoard blogger from Vermont, Ed Van Dorn, discusses in his recent post.

Personal Injury Firm's Track Record

When a personal injury claim cannot be settled it is resolved by a jury trial. Insurance companies will usually only pay top settlements to personal injury victims represented by attorneys with proven track records in court. When personal injury victims are represented by lawyers with only limited experience or limited success insurance company's and defense lawyers often take advantage of this and offer limited settlements or try to defeat the claim in court. Make sure the law firm you hire for your personal injury case has a successful track record in personal injury jury trials.

Ed's advice applies in Florida just as much as in Vermont. I thank him for pointing out the most important quality of a personal injury attorney - will the attorney and firm take the claim to court aggressively if a fair settlement is not to be?

What does matter (and it matters a lot) is what fellow InjuryBoard blogger from Vermont, Ed Van Dorn, discusses in his recent post.

Personal Injury Firm's Track Record

When a personal injury claim cannot be settled it is resolved by a jury trial. Insurance companies will usually only pay top settlements to personal injury victims represented by attorneys with proven track records in court.
When personal injury victims are represented by lawyers with only limited experience or limited success insurance company's and defense lawyers often take advantage of this and offer limited settlements or try to defeat the claim in court.
Make sure the law firm you hire for your personal injury case has a successful track record in personal injury jury trials.

Originally posted at InjuryBoard by Bob Carroll

Why Not Require The Highest Standard Of Care In Storing Firearms?

Bob Carroll — Sat, 03 Feb 2007 07:27:56 GMT

A Florida Appellate Court decision informs us that a reasonable careful person is not required to use the highest degree of care in regard to the safe storage of a firearm. Call me crazy, but I feel it would be certifiably unreasonable for anyone not to use the highest degree of care in safely storing a firearm. Why would we accept a lower or the lowest degree of care in dealing with a gun which is considered a dangerous instrumentality?

NATHAN ZUVER v. GERALD GOTTNER

Gottner kept a Glock pistol with a laser sight in his vehicle's center console. He kept a spare key inside the vehicle's gas cap. Gottner knew that his seventeen-year-old grandson, David, was aware the key was kept there. David and his seventeen-year-old friend, Billy Mack, used the key to enter the vehicle and take the pistol without permission. Billy was playing with the laser at Zuver's house when the gun discharged, injuring Zuver.
Zuver sued Gottner, claiming he was "under the duty to exercise the highest degree of care towards" him. He requested that the jury be instructed that Gottner "had a duty to use the highest degree of care for Nathan Zuver's safety"..."The reasonable care required of the owner of a gun is the highest degree of care."
Instead, consistent with Florida Standard Jury Instruction 4.1, the trial court instructed the jury that: "Negligence is the failure to use reasonable care. Reasonable care is the degree of care which a reasonable careful person would use under like circumstances."
[The opinion agreed with the instruction given by the trial court.]
An instruction that Gottner was required to use "the highest degree of care" would have removed from the jury's determination how much care a reasonable man should use in safeguarding his weapon.

I am prepared to remove from a jury's determination how much care should be used in safeguarding a weapon. It should always be care that qualifies as the highest degree of care.

Originally posted at InjuryBoard by Bob Carroll

Why Sealed Court Files Are A Serious Mistake

Bob Carroll — Wed, 20 Dec 2006 09:36:19 GMT

If anyone needs evidence that allowing negligent defendants to have court files sealed from public view is wrong, wrong, wrong, they should read this article in the Seattle Times:

Woman's coma leads to secrecy, silence

Sylvia Lane, a diabetic, lay in her apartment bed in Lynnwood, comatose and alone, her blood and brain in desperate need of sugar.
But the medical device she'd just received instead kept pumping insulin into her body, pumping and pumping, starving her brain and making it more unlikely she would ever wake up.
Lane was 17 weeks pregnant. Her husband was on an aircraft carrier, halfway round the world. Relatives were calling but getting no answer.
The pump, about the size of a cellphone, had a safety feature designed to stop the insulin flow in emergencies like this. But the feature wasn't on. The pump had been shipped to Lane with the option turned off, and the device's instructional video devoted only 15 seconds to it, saying nothing about why the feature should be used.
Ultimately, Lane suffered severe and permanent brain damage. Her family sued Medtronic Inc. -- the parent company of the pump's manufacturer -- alleging the pump was unsafe. Medtronic had already sold 150,000 insulin pumps in the United States.
What happened to Sylvia Lane could have yielded insight into the pump's design and instructions, alerting patients and health-care providers to the importance of this safety feature, originally called a "Deadman's Switch."
But when Medtronic settled the lawsuit three years ago, the entire court file was improperly sealed, hiding every allegation and discovery behind an electronic password.
What's more, Medtronic failed to disclose Lane's injury to the federal government, which uses such reports to spot problems with medical devices and to protect the public.
Lawsuits and regulatory reports allow patterns to emerge and warnings to sound. Here, there was merely secrecy and silence.

Originally posted at InjuryBoard by Bob Carroll

Your Deposition Should Not Be Your Second Crash

Bob Carroll — Sat, 16 Dec 2006 07:55:52 GMT

Every week I prepare clients for the taking of their depositions by the opposing attorney. Then, I sit with my clients as the opposing attorney questions my client for two or more hours under oath with a court reporter present. My stress level during my client's deposition may actually be higher than my client's. Why? Because I know how a loose tongue can undermine an entire case.

Michael Myers, a fellow blogger on InjuryBoard.com from Seattle, has posted a short article on this topic.

Depositions--Check Yourself Before You Wreck Yourself

Depositions are typically the first "face to face" interaction between defense counsel and the injured person. Depositions are set by defense attorneys to obtain information about the case and to bolster their defense theories. Depositions provide an opportunity for the defense to elicit testimony that undermines the injured person's case.
There is oftentimes a strong temptation for injured persons to want to "tell their story" to defense counsel. They feel like if the defense attorney only knew their side of the story and how the injuries have affected them the case would settle favorably. Unfortunately it just doesn't work this way. The temptation must be resisted.

I totally agree with Mike. One of the things I emphasize during pre-deposition preparation is that a deposition is only a question and answer process. It is not an opportunity to place on the record an entire case in a convincing form. Nor is it the time to volunteer anything. If we are able to say at the end of the deposition that the client honestly and accurately answered the questions that were asked and did not volunteer anything, the deposition went well. I encourage yes or no answers where appropriate and, generally speaking, shorter rather than longer answers. Longer answers have a tendency to wander off into new subject areas for further questioning.

Originally posted at InjuryBoard by Bob Carroll