West Palm Beach Personal Injury Lawyer - Defective & Dangerous Products

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

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

Correcting Injustice--The Medical Device Safety Act

John Hopkins — Mon, 26 Oct 2009 10:26:43 GMT

The decision in the Supreme Court case of Riegel v Medtronic created special protection for medical device manufacturers that defied all logic and contradicted 30 years of experience in medical device regulation. The Riegel case set forth that lawsuits against medical device manufacturers were preempted where the manufacturer had properly submitted the device to and received approval from the food & Drug Administration. This decision ignored real world issues. Nearly everyone knowledgeable at the FDA will tell you they have neither the time nor the budget to conduct sufficient independent analysis of every medical device. Largely, their approval relies on the truthfulness and sufficiency of the testing reported to them by the device manufacturer. By necessity, the FDA’s process is somewhat like the fox guarding the henhouse, in situations where the manufacturer has failed, intentionally or negligently, to put the medical device through the testing that would best evaluate the product’s safety. The Medical Device Safety Act, currently in Congress, would seek to correct this error and place consumers back on level footing with medical device manufacturers. US Representative Henry Waxman summarized the situation well when he said:

"As the Supreme Court affirmed in its Wyeth decision yesterday, lawsuits by injured consumers play a critical role in helping to ensure safety," said Chairman Waxman. "The Court noted that these lawsuits 'uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly.' The same is true for medical devices. We must act quickly to enact this important legislation that will restore the ability of patients injured by defective medical devices to seek compensation, and realign the incentives for manufacturers to ensure the ongoing safety of their products."

The bill has now garnered support from many organizations including:

AARP

Center for Justice & Democracy

Consumer Federation of America

Consumers Union

Homeowners Against Deficient Dwellings

National Association of Consumer Advocates

National Consumers League

OWL - The Voice of Midlife and Older Women

Progressive States Network Public Citizen

U.S. Public Interest Research Group

The New England Journal of Medicine

National Conference of State Legislators

National Research Center for Women & Families

What can you do?

Call your legislators and ask them to do the correct and just thing—vote in favor of the bill.

Go here to find contact information for congressional members!!

Originally posted at InjuryBoard by John Hopkins

Unsafe Children's Toys Recalled

Laurie Briggs — Tue, 06 Oct 2009 14:46:05 GMT

Target Corporation twice found itself in the news last week concerning the sale of children’s toys in its stores. First, Target was fined $600,000.00 last week by the Consumer Product Safety Commission for knowingly importing and selling children’s toys with paint or other coating which contained lead levels above the Federal legal limits. The toys specifically cited by the CPSC were Kool Toyz Products, Anima - Bamboo Collection Games, Happy Giddy Gardening Tools and Sunny Patch Chairs. Target denies knowingly breaking the law.

Then, following an inquiry from Mitch Lipka, who spends his time investigating consumer product safety, Target was in the news for children’s flashlights which begin melting when the battery is placed inside. Sold at Target in a 3-for $1 package, the mini flashlights were being marketed as a Halloween item. After Mr. Lipka contacted Target, the CPSC and the importer of the flashlights, from China, Debrian Global Industries, the product was immediately pulled from the shelves, an investigation into the cause of the problem was initiated and full refunds were offered by Target.

The Target fine is coupled with today’s news from the CPSC that Daiso California LLC has voluntarily recalled children’s toys, purses, pen cases and inflatable baseball bats it sold between March of 2008 and May of this year because the surface paint on the balancing toys and zippers of the purses and pen cases contain excessive levels of lead, violating the federal lead paint ban. In addition, the inflatable baseball bats contain excessive levels of DEHP, violating the federal phthalate standard.

As we head into the holiday gift buying season, these types of stories do little to quell the growing fear over children’s toys, oftentimes from China, which somehow find their way to our store shelves in violation of United States safety standards.

Originally posted at InjuryBoard by Laurie Briggs

Tobacco Companies to Kids: Be Cool, Try It!

Brian Denney — Mon, 05 Oct 2009 09:33:16 GMT

Would you believe that eating lots of apple sauce is no more dangerous than smoking cigarettes?

www.youtube.com/watch

Would you believe that some pregnant women like to smoke so they can have babies that are smaller?

www.youtube.com/watch

Would you believe the Flintstones smoked cigarettes?

www.youtube.com/watch

Chances are, if you are educated enough to access this blog, you wouldn’t believe any of the above statements and recognize them for what they are – poppycock (with the exception of the Flintstones, whose illustrators took part in advertisements for Winston cigarettes).

However, up until approximately twelve years ago, the tobacco industry would have had you believe that cigarettes were not bad for you, but were in fact good for you. Indeed, it wasn’t until 1997 that a single tobacco company finally admitted that cigarette smoking causes cancer, heart disease and that cigarettes were marketed to children.

www.youtube.com/watch

Here are some additional facts concerning children and cigarettes that may shock you:

Approximately 89% of people who smoke began smoking before the age of 18. Accordingly, most experts agree that the tobacco companies have traditionally targeted their advertisements to adolescents. Adolescents, as most of us know from experience, are impressionable and often suffer from a lack of self esteem (what teenager hasn’t gone through an awkward phase). Iconic figures created by the tobacco industry such as Joe Camel and the Marlboro Man provide adolescents with an example of confidence, strength and coolness, with a little rebellion mixed in (what teenager hasn’t wanted to rebel against authority). The message the tobacco industry is sending is clear: Kids, if you want to be strong, confident, cool and springboard into adulthood, light up a cigarette. Don’t take my word for it…the tobacco industry has admitted in numerous internal documents that kids as young as 14 were in their target group. Have a look at the chilling statistics cited at Tobacco Free Kids. While you’re there, take a look at some of the ads the tobacco industry has published in the USA and throughout the world with two goals in mind: To get people (kids, it would seem) to become and remain smokers.

Originally posted at InjuryBoard by Brian Denney

Medtronic...Beleaguered Consumers and Yet Another Recall

Brenda Fulmer — Tue, 29 Sep 2009 15:31:58 GMT

On August 27, 2009, the Food & Drug Administration issued yet another recall for a device manufactured by Minnesota-based Medtronic (who also has experienced recalls of its pain medication infusion pumps, defibrillators, defibrillator leads, and insulin pumps recently). This Class I recall, the most serious level of recall of an FDA-approved medical device, involved the Medtronic Neuromodulation, INDURA 1P Intrathecal Catheter, Sutureless Pump Connector Revision Kit, and Intrathecal Catheter Pump Segment Revision Kit. These devices are used in connection with the popular Medtronic SynchroMed II and SynchroMed EL infusion pumps; these pumps deliver pain medications such as baclofen and other drugs directly into the spine. Chronic pain patients have been led to believe that implanted pain pumps such as the Medtronic devices would provide a panacea and avoid all of the pitfalls of chronic use of narcotic pain medication, including the stigma and potential addiction associated with such drugs, their side effects, and recent safety concerns (including manufacturing defects in Fentanyl pain patches that leach toxic levels of the drug due to improper sealing techniques and Ethex morphine pills manufactured at double strength).

The latest recall for Medtronic and its pain pump line stems from design defects that prevent the catheter from properly connecting to the infusion pump, which could lead to disconnection of the pump or a blockage. The inability of the device to properly administer a steady stream of pain medications to a patient creates the potential for an inadvertent overdose or unnecessary suffering for the patient who receives an inadequate level of pain medication. The SynchroMed II line of infusion pumps has been in the news a great deal over the past couple of years with numerous advisories of potential safety problems. These are located on the Medtronic site and can be accessed by clicking on "Medical Device Safety Alerts". They include:

July 2009 -- Premature Battery Removal
August 2008 -- Potential Effects of MRI Imaging on Pump Performance
June 2008 -- Potential Disconnection of Sutureless Connector Catheters
May 2008 -- Pump Malfunction Due to Missing Propellant
January 2008 -- Formation of Inflammatory Mass at Catheter Tip Leading to Serious Injuries
August 2007 --Notification of Malfunction of Synchromed El Pump with Stalling Due to Gear Shaft Wear
November 2006 -- Educational Brief to Physicians on proper monitoring of patients to reduce risk of death or serious injury during initiation of intrathecal opioid therapy for pain
July 2006 -- Voluntary Worldwide Medical Device Recall for Model 8731 Intrathecal Catheter and Model 8958 Intrathecal Catheter Distal Revision Kit (due to platinum-iridium tip becoming dislodged by guide wire during implantation)
May 2006 -- Medical Device Recall of Model 8627 SynchroMed EL Due to Pump Reliability Concerns
January 2006 -- Education Brief for Patients regarding drug formulations using preservatives that may be neurotoxic or compromise the safe use of the Medtronic infusion pumps

Patients who have received these devices should contact their physician for more information regarding the impact of these various recalls on the functioning and safety of their implanted infusion pumps. Medtronic has a sales force that regularly calls upon physicians and should be able to provide current safety data to healthcare providers and their patients. There are also tools available on Medtronic’s web site that enable physicians and patients to input the serial number for a particular infusion pump device to determine whether it is impacted by the various safety alerts and recalls.

It appears from the documents published on Medtronic’s web site that it has also enhanced its warranty coverage to include some of the out of pocket expenses incurred by patients. A review of these warranty supplements, however, indicates that patients are only being reimbursed up to $1,000 for out of pocket expenses associated with surgery and medical care necessitated by the defective product and that health insurers are left without recourse for the tens of thousands of dollars that they might be required to pay for medical care necessitated by the litany of defects associated with these pain pumps. This is an excellent example as to why federal preemption for FDA-approved medical devices (as outlined in the Medtronic v. Riegel decision) is a travesty for patients, physicians, and health insurers, all of whom are shouldering the burdens created by poorly designed and manufactured medical devices. It is for this reason that the Medical Device Safety Act, which would once again hold device manufacturers such as Medtronic responsible for their defective products, is gaining significant, bi-partisan support in Congress. More information about federal preemption and how it unfairly shields manufacturers of defective products can be found on our firm’s web site. We urge you to contact members of Congress to voice your support for this very important safety legislation.

Originally posted at InjuryBoard by Brenda Fulmer

Tort Reform to Help Business

John Hopkins — Thu, 24 Sep 2009 11:14:31 GMT

In 1996, Louisiana's Governor Mike Foster and his Republican legislature fulfilled his campaign promises to business and gave tort refom to Louisiana. He wanted to help the business climate; to protect the corporations who do or might do business in Llouisiana.

This is the same state devastated by Hurricane Katrina and the deplorable efforts on the part of FEMA in providing aid to the ravaged citizens there.

Now, these same Louisiana citizens are hit by a hurricane spawned by the good Governor Foster.

New Orleans Business News reports that as a result of tort reform efforts, 4000 to 7000 "Louisiana households face financial ruin" because of the destruction of these people's homes by Chinese manufactured drywall.

Louisiana State Senator Julie Quinn put it better than I could:

"We took that away from the consumer. We say, ‘Sorry, you’re going to have to sue the manufacturer in China.’ That puts people in Louisiana at a huge disadvantage. We threw the consumer under the bus under the purview of ‘Hey, this will attract business to Louisiana.’ All we did was hurt the consumer."

For his part, Governor Foster said he thought it was unfortunate that the law "...may work to someone's disadvantage".

With Governor Foster's tort reform and Katrina, I think Louisiana has had more than its fair share of disaster.

Originally posted at InjuryBoard by John Hopkins

Big Tobacco and the Tactic of Delay

John Hopkins — Tue, 22 Sep 2009 16:28:57 GMT

Big Tobacco and their lawyers have always understood that time is on their side any time an injured victim of nicotine files a lawsuit against them. If they can drag their heels long enough; if they can construct practical and legal delays to allowing the plaintiff to get to trial of their case; and if they can use the courts to install legal impediments to further the delay; well, they often win in the long run. Who really wins if years of delay and retrial results in the death of the plaintiff from their smoking related illness and/or a significant reduction o f their verdict because of further aged evidence in retrial. They produced a product they knew would addict people. They produced a product that they knew would kill people. They produced a product that, if you can wait long enough, will kill people before they can get their case in front of a jury.

There may be a less obvious side benefit to this whole delay tactic that Big Tobacco has been capitalizing on: young jurors. Big Tobacco knows that if they can get their cases in front of really young jurors, they have a better chance of having the case heard by people who did not grow up with article after article in the newspapers explaining the unscrupulous methods employed by Big Tobacco to:

Hook people on nicotine at as young an age as possible;
Hand out cigarettes to children on the corner;
Invent the “smoke’em if ya got’em” break in the military…and then give free cigarettes to young GI’s;
Continue to market cigarettes as cool, hip, enticing;
Bury studies and statistics illustrating the dangerous addiction of nicotine;
Discredit studies pointing to the dangers of smoking;
Create scientifically sounding organizations to discredit scientists who were trying to warn the public;
Manipulate levels of a highly addictive drug in an effort to keep smokers smoking;

How does Big Tobacco deal with this wrinkle? They appeal every verdict. They never, never admit they were wrong. They influence politicians to appoint just “the right” jurists. They are arguing for new trials; not to necessarily win outright; they want new trials. Why? Younger jurors—less able to remember Big Tobacco’s sins of the past. Each time they get a new jury, they have a shot at younger jurors.

Is this because younger jurors “don’t get it” or aren’t smart enough? Of course not. It forces plaintiff’s attorneys to present a very long and sometimes boring history of Big Tobacco’s history to jurors who have no point of reference for Big Tobacco’s past bad deeds. I have to think that younger jurors may very well have some difficulty believing that Big Tobacco really did some of the things they are accused of; even though the outrageous misdeeds of Big Tobacco are well documented. Even after I have read reams of pages of internal memos and other documents that paint a picture of Big Tobacco in terms that even I had to spend many, many days of reading before it actually sank into my conciousness

Many younger jurors do not recall the scandal of the Ford Pinto. This involved a small car produced by Ford that had a really bad complication of blowing up or catching fire when it was rear ended. Ford knew about the defect causing these fires and could have corrected it for around $11 per car. They crunched the numbers and decided that not enough people would be killed to justify spending the money and they decided to take their chances defending the lawsuits. That was one car causing injury and death and, of course, no one agrees that Ford’s death benefit analysis was acceptable.

Big Tobacco has been doing death/cost analysis for decades and they decided a very long time ago that they knew they were addicting and killing people—but, the profits were just too good to pass up. Big Tobacco went the extra distance, though; they started trying to control the truth. It is difficult to understand how an entire industry was as bad as Big Tobacco, but the government never did anything to stop them.

Maybe the profit was just too good.

Originally posted at InjuryBoard by John Hopkins

Rhino ATV -- Simply a Dangerous Product

David Sales — Mon, 21 Sep 2009 11:16:32 GMT

A few weeks ago, people were talking about the defense verdict in the first trial involving a Rhino ATV. A Texas jury concluded last month that Yamaha was not responsible for the death of a thirteen year old Rhino operator. Everyone interested in product safety and product liability litigation follows the verdicts. It is a subject of tremendous interest. In this instance, however, we don’t think that this verdict means very much.

The fact remains that the Rhino is associated with nearly sixty deaths in this country, an imposing number giving the relative size of the affected number of vehicles (about 145,000). The problem: this is a very stiff vehicle which, because of its width and high center of gravity, is prone to roll over, at speeds as low as 11 miles per hour.

It was not lost on many of us that Yamaha’s victory in the first trial came just three weeks after a news release from the U.S. Consumer Product Safety Commission (the “CPSC”), reminding Rhino operators to “Stay Safe this Summer” by observing basic operating tips (e.g., using seatbelts and helmets) and critically, taking Yamaha up on its offer to provide free repairs for the affected Rhino models (450, 660 and 700). Back in March, the CPSC, “in cooperation” with Yamaha, announced this free program to address the very safety issues that make the Rhino unsafe.

The repair includes the installation of rear-wheel spacers and an anti-sway bar. These ‘fixes’ are supposed to add vehicle stability and improve handling, both of which should reduce rollover accidents. Yamaha is also installing half-doors and additional passenger hand grips to help keep occupants’ arms and legs inside the vehicle.

Experience teaches that the success rate of campaigns such as these is directly related to the amount of energy (and money) a manufacturer applies to getting the word out. The jury is still out on this question, certainly. It is likely that many thousands of owners and operators remain uninformed and misinformed about the hazards of the Rhino. And, of course, these belated repairs can’t help the families of those who were already injured or killed.

The Texas jury may well have been influenced by the fact that the operator was only thirteen (according to Yamaha, the Rhino’s warnings are clear that operators should be at least sixteen) and lacked protective gear. Yamaha blamed the accident on operator error and a spokesman said, after the verdict, that the accident, though “tragic,” was not the result of a defective design.

Well, maybe. The point is that the design of the Rhino is defective. What are the odds that Yamaha would have ‘cooperated’ with the CPSC to repair vehicles that were free of defects? In fact, Yamaha’s own website says, “You should not operate your Rhino until it is modified with these repair parts.”

A better understanding of the recent Texas verdict would probably require more information than we have seen in the press. As for us, we remain confident that the Rhino is a defective product and expect to see substantially different results in the cases that remain to be tried.

Originally posted at InjuryBoard by David Sales