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Profit Over Safety -- A $20 Decision

John Hopkins — Tue, 01 Dec 2009 10:04:27 GMT

A 46 year old woman is paralyzed when her sport utility vehicle rolls over and the roof collapses onto her. The manufacturer knew their SUV was prone to rollovers and in the event of a rollover, the roof was insufficiently reinforced to prevent the very injuries suffered by the woman. In the case, the woman alleges that a fix to the roof stability would have cost the SUV maker approximately $20 per vehicle.

This story sounds a great deal like a car prone to catching on fire and exploding when rear ended at relatively low speeds. In those cases, the auto maker consciously chose not to spend the money to recall and retrofit the vehicles. That decision unnecessarily cost many lives.

Oh, yeah, in both instances it was Ford. In the earlier case it was a little car called the Pinto and in this most recent case, a little SUV called the Explorer.

It boils down to making “business decisions” in the best interest of stock holders is what Big Corporations say. They are forced to weigh their overhead against the need for design modifications. They are charged with answering to stockholders who have hitched some portion of their financial future to these very decisions.

It boils down to making decisions that do not place profits over safety is what I say. Sorry Corporate America, but it should not be acceptable to place the public in peril of life or limb for $20. In fact, it should not be OK with anyone to have a 46 year old woman and mother of two children who will never walk again because it was not expedient or economical to either, first design or second retrofit a product to make it as safe as possible.

When Ford was hit with this jury verdict amounting to over $350 million for both compensatory and punitive damages, they appealed. The courts reduced the jury verdict to $82 million, for both compensatory and punitive damages. Ford cried foul and appealed; arguing that they made reasonable judgments in the design of the SUV and they should not be responsible for punitive damages.

When Corporate America demonstrates a conscious disregard for the safety of consumers, punitive damages are appropriate. When an industry makes billions marketing a 3000 pound object that moves at 70 mph “reasonable judgments” that include the failure to spend $20 additional for safety most certainly justifies these damages.

Originally posted at InjuryBoard by John Hopkins

Wyeth Must Pay for Practicing to Deceive

John Hopkins — Mon, 23 Nov 2009 16:27:38 GMT

Cases involving lawsuits against Wyeth (a division of Pfizer) are going to trial and juries are being permitted to hear all the evidence against Wyeth. The evidence is clear: Wyeth acted in a way that was negligent and at least one juror has characterized Wyeth’s conduct as “despicable”.

Studies now confirm that 200,000 women – our grandmothers, our mothers, our sisters and our wives – would not have suffered breast cancer but for their use of combination hormone therapy drugs.

The evidence has caused two juries to deliver verdicts for combined totals of over 10 million dollars in compensatory damages and over 100 million dollars in punitive damages. In a total of 10 jury trials, jurors have delivered verdicts to plaintiffs of over 30 million dollars in compensatory damages and over 160 million dollars in punitive damages.

Was Wyeth negligent in its placing Prempro on the market? Clearly, the evidence demonstrates and the jury verdicts ratify that Wyeth was negligent.

The evidence of Wyeth’s conduct in these cases is damning. As early as 1975, Wyeth was on notice that combination hormone therapy causes breast cancer. Wyeth did nothing and continued to market the drug and take in huge profits.

Wyeth took steps to try and downplay the risk of these drugs and made efforts to contain data from other institutions, which demonstrated the risk.

Wyeth sponsored a practice of “ghost writing” of medical literature that promoted combination hormone therapy like PremPro. In addition, Wyeth exaggerated the benefits of hormone therapy in these very same “authoritative” articles written by Wyeth employees or agents.

Wyeth failed to conduct further studies of HRT even after the FDA told them in 1983 that human clinical trials were the only way to ascertain the safety of their drug.

The trial of these cases and the verdicts after jury upon jury has heard the evidence is a classic illustration of the justice system as a method for consumer protection when no other system will accomplish it.

Wyeth would not listen to “the truth will set you free” and they now are paying for decades of profits gained “while practicing to deceive”.

Originally posted at InjuryBoard by John Hopkins

Fighting the Good Fight -- Hormone Replacement Therapy Litigation

John Hopkins — Mon, 23 Nov 2009 09:53:49 GMT

They weighed profits against safety and profits won out. Women across the country lost and were forced to suffer with breast cancer. That is the conduct attached to Wyeth for their handling of hormone replacement therapy drugs (HRT).

In 1983, the Food & Drug Administration told Wyeth that human trials were necessary for the safe marketing of HRT medication, PremPro. Wyeth made the conscious decision to refuse doing the trials. Internal documents demonstrate that Wyeth refused to perform additional studies in order to conceal the risks associated with what they knew would be a drug, which would reap huge profits for Wyeth.

www.youtube.com/watch

Women such as Connie Barton and Donna Kendall demonstrated the courage to bring Wyeth into court to answer for their conduct. Jurors who have heard evidence related to Wyeth’s negligence and intentional failures have used terms such as “despicable” and "outrageous conduct” to characterize Wyeth’s behavior.

It was not until Wyeth was forced to admit the dangers of the HRT drugs that they finally took some action. When the study through the Women’s Health Initiative was terminated due to the development of breast cancer by participants, Wyeth’s hand was forced. What did Wyeth do? They “circled the wagons”; continued to deny their fault; and stone-walled women’s claims concerning the danger of their product.

Women such as plaintiffs, Connie Barton and Donna Kendall suffered the loss of their breasts and horrible consequences of cancer treatment because a corporation thought that profit was more important than patient safety.

Originally posted at InjuryBoard by John Hopkins

Big Tobacco Caught in the Back Draft of its Scorched Earth Litigation Strategy

Cal Warriner — Fri, 20 Nov 2009 09:20:46 GMT

Big Tobacco's pants are aflame today after suffering a 300 million dollar verdict in yet another defeat in its Florida litigation war. You see, knowing it has imposed more death and suffering than modern war, pestilence and aids combined, Big Tobacco's mantra has always been millions for defense and not a dime for restitution (and a few extra hundred million thrown in for political payola and advertising). Historically the strategy has worked. The big bully with its army of well healed, silver tongued lawyers could outspend, outmaneuver, and overwhelm wheezing customers and their lawyers. Tire them out, grind them into the dust, argue every issue, appeal every ruling and intimidate lawyers into not taking up the cause. No matter the cost, Big Tobacco had to make suing it so distasteful that smokers would just die and go away quietly. I mean, what would happen if all the sick smokers sued us at once? Right?

Today however, as Phillip Morris arrogantly thumbed its nose at yet another former customer who sat in the courtroom on oxygen, the strategy cost Phillip Morris 300 million dollars. Having once again turned its back on the opportunity to settle for for less than it paid one defense expert, Phillip Morris placed its fate in a gaggle of highly skilled cigarette lawyers from Chicago and San Francisco. The juries verdict, millions for restitution, to hell with your million dollar defense.

You see, the tide has turned in Florida. Instead of unleashing its army and unlimited resources on one poor smoker, Big Tobacco faces almost 8000 filed cases that are all proceeding concurrently. The cases arise from years of class action litigation in which a jury and ultimately the Florida Supreme court finally put an end to decades of Big Tobacco's dismiss, distract, deny and deceive strategy. No longer are Tobacco's slick litigators allowed to come to court ready to contest whether nicotine is addictive or whether it causes lung disease and cancer. Nor can the companies argue that their products were not defective or that they were not guilty of negligence and fraudulently lying to the consuming public about the dangers of cigarette smoking. Remember, as late as 1994 every tobacco company CEO stood before Congress and swore that nicotine was not addictive and that there was no medical proof linking cigarette smoking to cancer. Swallow lye to perpetuate the lie, no problem. Nope, the issue for the jury to decide in Florida is now what it always should have been. Is it the smoker's fault for buying the defendants' product and using it exactly as intended (quite ironic) or is it the product's addictive qualities manipulated so adeptly by Tobacco chemists that resulted in the smoker's disease? For the first time in the history of tobacco litigation, it's a fair fight. Recent history teaches when Big Tobacco can't poke, bite or hit below the belt, it is losing its shirt.

Since members of the now decertified Florida class have been trying their cases against Big Tobacco, the smoker has won eight of ten trials many in the multiple millions of dollars with today's 300 million dollar verdict being the largest. In each case, Tobacco has flatly refused to discuss settlement many times rejecting settlement offers of as little as $10,000. As a result, all of the smoker's litigation costs and attorney's fees are being tacked on to the verdict. Tobacco already faces over fifty trials next year with more being set every day. If past is prologue, the nicotine purveyors are in for disastrous 2010.

As the saying goes, all good things must come to an end. In Florida at least, the courts have put an end to traditional Tobacco defenses. When then will the companies spin to the financial industry about its exposure in Florida tobacco litigation end. The Florida Supreme Court's Engle decision is flawed, this verdict is an aberration; we intend to appeal; we feel good about our chances on appeal; we have plenty of resources to defend ourselves; lawyers will lose interest and Engle cases will just go away like the flight attendant second hand smoke cases did. Hogwash.

With this verdict, it's time that the financial markets woke up smelled the coffee. They need to start asking probing, hard questions. Can an industry that sells an addictive product that has killed millions and continues to kill hundreds of thousands each year cheat the fates indefinitely? Will the American public stand to have its children and its children's children addicted and killed by this evil industry?

Ironically, the litigation strategy that has served Big Tobacco so well for so long has exposed its biggest weakness. Tobacco cases are very winnable. They are even more winnable when filed en masse by just a fraction of its victims. Juries no longer buy Tobaccos' lies. Ironically, for less than the cost of corporate jet fuel, Big Tobacco could have resolved the entire Florida litigation. Now, it must live with the consequences of an archaic philosophy, hatched moons ago by dead men, each made rich by the very cigarettes that ultimately killed them.

Originally posted at InjuryBoard by Cal Warriner

Tobacco Held Responsible for Placing Profits Ahead of...Everything

Brenda Fulmer — Thu, 19 Nov 2009 17:16:34 GMT

Philip Morris suffered yet another blow in the latest post-Engle tobacco trial. A Fort Lauderdale jury rendered a verdict on November 19, 2009, for $300 million against the tobacco manufacturers on behalf of a living smoker who suffers from severe emphysema. The verdict included $246 million in punitive damages.

This verdict is one of a number of verdicts that have been entered in completed jury trials in Broward and Escambia Counties this year.

More than 8,000 claimants and their survivors have individual lawsuits pending in courts throughout Florida. These claims stem from the Engle class action which was filed in 1994 and resulted in a verdict of more than $145 billion after one of the longest trials in history. Currently, there are dozens of trials scheduled for 2010 in Miami, Fort Lauderdale, Bronson, Jacksonville, Gainesville, Bradenton, Tampa, Pensacola, and Daytona Beach.

Thousands of additional smokers and their survivors are hopeful that the current scheduling and budgetary problems facing the Florida court system are overcome so that they may have their day in court in the not too distant future.

Originally posted at InjuryBoard by Brenda Fulmer

Prevention, Early Detection and Good Health

Rosalyn Sia Baker-Barnes — Thu, 19 Nov 2009 15:03:59 GMT

A new study released by the United States Preventive Services Task Force has women and doctors confused and torn over recent recommendations regarding what age a woman should receive annual mammograms.

For years, the American Cancer Society, physicians, and other government organizations, have recommended that women receive annual mammograms at the age of 40 to prevent breast cancer, which seemingly aided in the early detection of the disease. Now, the task force, a government panel of doctors and scientists, are recommending that most women wait until age 50 to get mammograms and then have one every two years. The study states that beginning to test for breast cancer at age 40 saves few lives and can even harm patients. They point out that if a mammogram gives a false positive, it can lead to anxiety, unnecessary additional testing and biopsies, and exposure to radiation. Mammograms typically produce false-positives in about 10 percent of cases.

Opponents disagree and feel that these new guidelines will only confuse and scare women from seeking the recommended testing. The American Cancer Society posted a statement on its website stating that it would continue to recommend annual screening for all women, beginning at age 40. “It (the guideline) is very confusing and that’s one of the things we’re worried about is that women are already confused, scared, and worried about getting a mammogram because of what they may find out,” said American Cancer Society spokesperson Mary Kathryn Walker.

Breast cancer survivors are also angry about the new guidelines saying that if they didn’t receive mammograms in their 40’s, they wouldn’t be alive today. The American College of Radiology and other experts condemned the change saying the benefits of routine mammograms have been clearly demonstrated and continue to play a key role in reducing the number of mastectomies and deaths. Breast cancer is the most common cancer and the second leading cause of cancer deaths in American women.

The task force guidelines don’t apply to women at high risk for breast cancer, including those with genetic mutations that make them more susceptible to the disease.

Diana B. Petitti, vice chairman of the U.S. Preventive Services Task Force says “We’re not saying women shouldn’t get screened. But we are recommending against routine screening. There are important and serious negatives or harms that need to be considered carefully.”

The task force’s guidelines also recommend against teaching women to do regular self-exams, something that that American Cancer Society has been touting for years. The practice was so heavily promoted at one time that the organization distributed cards that could be hung in the shower demonstrating the circular motion women should use to feel for lumps. Recently, the American Cancer Society and other medical groups have backed off promoting breast self-exams because of scant evidence of their effectiveness, even before the new task force guidelines were revealed.

Insurance companies are claiming that coverage will not likely change because of the task force guidelines. In the past, the guidelines issued by the U.S. Preventive Services Task Force, has influenced the stance Medicare and many insurance companies take on healthcare coverage. Opponents of the new guidelines fear that the findings could spur insurers to deny coverage of annual mammograms and breast tests given to women under 50. “Screening isn’t perfect, but it’s the best thing we have and it works,” says Dr. Carol Lee, a spokesperson for the American College of Radiology. She also suggested that cutting health care costs may have played a role in the recent decision, but task force vice chairman Petitti said the task force does not consider cost or insurance in its review.

Whether or not you believe women’s health is again under fire, it is important to know your family medical history and routine visits to your doctor are your best tools against any type of disease, including cancer. The new task force guidelines are just that, guidelines. Mammograms, like all medical interventions, have risks and benefits. These new guidelines will hopefully help spur conversations and assist women in making the best decision for their personal circumstances.

Originally posted at InjuryBoard by Rosalyn Sia Baker-Barnes

FDA Warns About Pain Pumps -- Manufacturers Knew

John Hopkins — Mon, 16 Nov 2009 09:14:20 GMT

Sometimes law and science do not make close bed fellows; particularly where one or the other is trying to understand their respective meaning.

The FDA has come forward to warn about continuous intra-articular infusion of pain medication. This is the practice of using a pump to provide continuous infusion of pain medication to a surgical site. These devices began being used in abdominal surgeries and, predictably, that singular use did not provide manufacturers with sufficient market availability (profit). So, many manufacturers such as Breg, Strytker and IFlow began to promote the use of the pumps in shoulder, knee and ankle surgeries.

The explanation given by the manufacturers was that providing continuous pain medication to the place where you just operated gave the patient an easier recovery time. Doctors do, in fact, care about their patients and, so this manufacturer explanation had real attraction to doctors. Some of the manufacturers went further and demonstrated to doctors ways in which they could code the procedures and receive additional compensation if they used a pain pump. To doctors who often are forced to fight with insurance companies for a fair payment, this, too, seemed attractive.

What manufacturers “forgot” to tell doctors is they had not conducted competent testing of the use they were promoting. The manufacturers forgot to tell doctors that the FDA required clinical trials before use of the pain pumps intra-articularly could be permitted. The manufacturers forgot to tell doctors that no clinical testing had been done on the very tissue, cartilage, into which the pain pumps would be injecting medication.

When pain manufacturers saw the first study come out potentially linking destruction of cartilage to the use of pain pumps, they quickly retreated from their recommended application and circled the wagons. They knew that because they had sponsored no meaningful research of their own, interest would quickly evaporate for studying the problem if they stopped recommending intra-articular use. After all, why study something that will not happen anymore?

Pain pump manufacturers also hoped that the lack of research would shield them from liability by arguing to courts that insufficient scientific evidence existed to relate use of the pain pumps with complete destruction of joints in relatively young people. Sadly, by using a legal theory called “Daubert”, some courts have, in fact, bought into the manufacturers’ ingenuous arguments. Manufacturers argue that courts should ignore, as insufficient, the testimony of surgeons who, for 30 and 40 years, have seen no destruction of cartilage until they started using pain pumps in the way recommended by manufacturers.

Originally posted at InjuryBoard by John Hopkins

Loser Pays -- Tort Reform Hypocrisy

Patrick Quinlan — Fri, 13 Nov 2009 15:06:08 GMT

I just read another anti-lawyer diatribe by John Stossel. Mr. Stossel is one of the great many Tort Reform Hypocrites: people who scream in public about evil trial lawyers filing frivolous lawsuits for pain and suffering damages, but then run to a trial lawyer the moment that they feel that their rights have been violated. Mr. Stossel has said:

“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.”

Yet when a pro wrestler slapped him in 1986, what did Mr. Stossel do? He sued for -- you guessed it -- pain and suffering damages.

Mr. Stossel ends his latest attack on plaintiffs’ lawyers with this suggestion:

"America needs “loser pays." Lawyers marginalize "loser pays" by calling it “the English Rule," as if it’s some peculiar British rule. But it’s not. "Loser pays" is the "Rest-of-the-World Rule."

To Mr. Stossel and all of his tort reform warriors, I say “be careful what you wish for.” By no means do plaintiffs’ lawyers win every lawsuit. But, according to a Bureau of Justice Statistics report, plaintiffs won 59% of state court civil trials in 2005. Interestingly, that number is up from 55% in 2001, and plaintiffs won a higher percentage of bench trials than jury trials, but those are both subjects for another day. Moreover, the 59% figure does not account for the great many valid claims that get settled before trial. Suffice it to say that every plaintiffs’ lawyer I know would be thrilled to see a prevailing party fee provision (or, as Mr. Stossel puts it, “loser pays”) become the law of the land.

Originally posted at InjuryBoard by Patrick Quinlan

The Substance of Water

Jack Scarola — Tue, 10 Nov 2009 11:42:19 GMT

There have been a lot of heated debates surrounding the creation of a state water commission that could route water from North Florida to the overpopulated and overdeveloped South Florida region. Poor developmental planning and a lack of sensitivity to our valuable land and water resources are to blame. We now have to consider routing water to areas that developers have recently built with no concern to the environmental impact it would have on our resources.

In 2003, at the height of the land boom, Florida business leaders came up with a plan to create a state water commission to route water to newly built developments in South Florida. Developers continued to build home and business with no foresight for the repercussions of that growth on our environment and resources. Now it is the taxpayers who are dealing with the implications of their actions.

As a society, we give little thought to where our water resources come from. We turn on the sink, and water comes out. We turn on our sprinklers and water is available. We never give a second thought to where this valuable resource comes from or how it gets there. Now is the time to focus on the conversation of water and planning on how to use less, rather than how we can use more.

The Florida Hometown Democracy Land Use Initiative, or amendment 4, will be brought to the voters on November 2, 2010. This amendment gives voters more say over development, and if passed, any land-use decisions will require voter approval for all changes to local comprehensive land-use plans. In 2008, a lack of signatures kept the initiative off the ballot, but this year it has enough supporters to win a chance to be approved by Florida voters.

Supporter and Florida Hometown Democracy Land Use president Lesley Blackner says “Mismanaged growth destroys communities.” Amendment 4 has gained support from groups such as Clean Water Action Network of Florida, Alliance to Protect Water Resources, the Audubon Society, Save Our Wetlands Coalition, the Sierra Club, and hundreds of other environmental groups throughout Florida.

Those opposing Amendment 4, such as The Florida Chamber of Commerce and other industry groups, say they “strongly oppose” the initiative and argue that the bill would “put us in a permanent recession for Florida’s economy.”

Bottom line is this: we either conserve our natural resources, or we will run out. We can make efforts to pull water from other areas in Florida to accommodate our thirst for water in overdeveloped areas, but ultimately, that will also run out; not to mention the millions of dollars it will take to build the infrastructure for it. Our best bet is to truly make an effort to conserve our natural resources and become forward-thinking in our planning for land and development. We have overindulged for too long and developers have overbuilt and sucked the water dry. Now we must live with the consequences.

Can we afford NOT to do something to try and correct past poor judgment?

Originally posted at InjuryBoard by Jack Scarola

Tort Reform, Lies, and Lady Justice

John Hopkins — Thu, 05 Nov 2009 16:37:17 GMT

It is all about reforming our tort system, right? I mean fixing the health insurance problem for millions of uninsured people is all about preventing the filing of lawsuits against negligent doctors and hospitals, right? We need to limit or eliminate the constitutional right to jury try for a certain class of citizen to provide health insurance for our citizens, right? We need to provide special immunities to certain professionals to fix the health insurance problem?

Who has a “problem” that any of this fixes? One class of “people” has a problem that this will fix: insurance companies. The insurance industry wants tort reform so the insurance industry can increase profits. It is, in fact, that simple.

No one has ever been able to provide me with objective evidence that contradicts any of the following:

There are not an abundance of frivolous malpractice suits being filed now and there has not been in recent memory.
Malpractice claims do not, watch my lips, do not drive up insurance costs. In fact, under oath, many insurance executives have repeatedly testified as such.
Doctors are not fleeing states because of malpractice claims. In fact it is the very, very small minority of doctors who are sued for malpractice.
Malpractice claims do not drive up insurance premiums across the whole population of physicians. Empirical evidence demonstrates that little correlation exists between malpractice claims and increased premiums. Insurance executives have, under oath, also testified to that fact.
Tort reform will never lower insurance costs. The insurance industry simply does not have a track record for doing that.

All of this is a distraction from accomplishing a solution to the real problem. How do we provide health insurance to millions of citizens who are without it? Legislators indebted to the insurance industry need to throw up road blocks and provide distraction they can trump up to be popular with many people in this country.

When 98,000 people die every year and many more are injured from medical malpractice. I must wonder if the tort reformers would be making statements they know are not true if medical negligence killed their wife, their husband, their mother, or their child. Of course they would not. In the height of absolute indifference to the suffering of victims, tort reformers fabricate, invent, and misrepresent; all to benefit an industry who is dumping big dollars into their pockets.

So, if they are successful with roadblocks and propaganda campaigns, the victim will include justice herself.

Originally posted at InjuryBoard by John Hopkins