West Palm Beach Personal Injury Lawyer - Corporate Fraud

Contact Lens Solution Linked to Acanthamoeba Keratitis

John Hopkins — Wed, 30 May 2007 09:12:52 GMT

On May 25, AMO (Advanced Medical Optics) announced a recall of their "No Rub" solution, CompleteÂ® MoisturePlus â„¢ Multipurpose Solution. Although the company stands by its product and casts the blame on contact lens wearers who "improperly store, disinfect or handle" their contact lenses, the CDC forced them to recall the solution

This recall is not so distant from Bausch & Lomb's recall of ReNu with MoistureLoc, which caused serious injury to many contact lens wearers. AMO's press release states they have known since January of 2005 about at least 46 patients who claimed to have contracted a unique form of keratitis from the AMO solution. This keratitis is called "acanthamoeba keratitis (AK)". From all indications, AMO delayed as long as Bausch did in coming forward and recalling the product; potentially exposing an untold number of unsuspecting contact lens wearers to this painful eye infection that can cause permanent vision loss or blindness.

In 2004, the eye infection first occurred in more than a dozen people against the normal count of one or two in a year. Dr. Elmer Tu, an ophthalmologist at the University of Illinois, Chicago, along with other doctors attended around 35 patients from May 2003 to September of 2006, 55% of whom were infected due to usage of AMO's solution.

One must wonder what corporations who suspect problems with their products are thinking when they wait one, two, or more years before warning the public about a potential hazard provoked or caused by their product. We wonder how much injury must occur before corporate dollars are sufficient.

Originally posted at InjuryBoard by John Hopkins

AOL; the lady doth protest too much, methinks

John Hopkins — Mon, 05 Mar 2007 14:17:42 GMT

AOL, the once power house of on-line communities, has just put up a new feature on the "Money & Finance" portion of their web site. The section is called "Most Outrageous Lawsuits" and they say that "Americans are lawsuit crazy". They also make the claim that lawsuits have "caused some companies to be extra cautious..." Wow, imagine how horrible--lawsuits cause companies to become more careful--how terrible!

AOL says that companies "factor future lawsuit costs into product pricing". It's funny that there are more companies out there who have not been sued than have been sued; if you exclude one corporation suing another corporation. Maybe AOL is simply stinging from a few minor legal altercations that it has had in the last few years:

â€¢ $2.6 billion to shareholders who accused its AOL unit in a lawsuit of exaggerating revenue to push through the companies' merger in 2001;
â€¢ $25 million for their first settlement for securities fraud including $18 million for settlement of Orman v. America Online, Inc.
â€¢ $210 million to settle with the Justice Dept. for fraud charges
â€¢ $300 million to settle over fraudulent deals with Bertelsmann AG
â€¢ $50 million to settle Alaska's fraud suit
â€¢ $105 million to settle Calstrs' fraud suit
â€¢ $405 million to settle more fraud claims
â€¢ $260 million to settle the University of California's fraud suit
â€¢ $34 million in 1998 to settle state's class-actions for overbilling and anti-cancellation policies
â€¢ $28 million to pay off various states again for overbilling and anti-cancellation policies
â€¢ $15 million to settle claims against their 5.0 software

So, with this track record, I guess AOL wants to now "educate" the public about all those "frivolous" lawsuits out there. It is interesting to note that even insurance company executives have repeatedly stated that there is no pervasiveness of frivolous lawsuits, yet Big Corporations continue to whine on about them.
Let's look at some more numbers:

â€¢Studies reflect that average jury awards do not even keep pace with inflation;

â€¢Tort cases (the kind they will tell you are over running the judicial system) represented only 6% of all cases filed;

â€¢If there is an over burdening of judicial resources, thank Big Businesses' inability to get along. Fights between "the boys" have made up over one half of the cases in the court system;

â€¢Recent analysis from the National Center for State Courts found that tort filings have declined by 5% since 1993.

â€¢According to the Department of Justice's Bureau of Justice Statistics, the number of civil trials dropped by 47% between 1992 and 2001. The decrease was also reflected across specific case types. The numbers of automobile cases dropped 15%, premises liability 52.1%, medical malpractice 14.2% and product liability by 76%.

â€¢The Department of Justice's Bureau of Justice Statistics also shows that the trend in award size was down.

â€¢The median inflation-adjusted award in all tort cases dropped 56.3% between 1992 and 2001 to $28,000.

Doctors, corporations and politicians have repeatedly cast this spin of trial attorneys running hither and yon, filing frivolous lawsuit after frivolous lawsuit. Yet when the facts are really brought into the bright of daylight, there is only one thing in common with the whining: corporate America wants you to be all about them. They want to tell you what your opinion should be; they want to tell you how you should live; they want to tell you that everything is going to be fine--or the sky is falling.

Originally posted at InjuryBoard by John Hopkins

Big Tobacco, Scorched Earth Tactics & the Engle Case

John Hopkins — Tue, 06 Feb 2007 17:05:07 GMT

The Florida Supreme Court has issued its mandate in the Engle v Liggett case. This case involved a class action by Florida smokers against Big Tobacco. Florida smokers who qualify as "Engle class members" must now take some action against Big Tobacco in less than one year. The Supreme Court made certain findings of fact and law that may place Big Tobacco at a distinct disadvantage and Florida smokers at an advantage--if Florida courts make Big Tobacco get to trial swiftly. The court made some of the following findings:

1. that smoking cigarettes causes aortic aneurysm, bladder cancer, cerebrovascular
disease, cervical cancer, chronic obstructive pulmonary disease, coronary heart disease, esophageal cancer, kidney cancer, laryngeal cancer, lung cancer, complications of pregnancy, oral cavity/tongue cancer, pancreatic cancer, peripheral vascular disease, pharyngeal cancer, and stomach cancer;
2. that nicotine in cigarettes is addictive;
3. that the defendants placed cigarettes on the market that were defective and unreasonably dangerous;
4. that the defendants concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both;
5. that all of the defendants agreed to misrepresent information relating to the health effects of cigarettes or the addictive nature of cigarettes with the intention that smokers and the public would rely on this information to their detriment;
6. that the defendants agreed to conceal or omit information regarding the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment;
7. that all of the defendants sold or supplied cigarettes that were defective;
8. that all of the defendants were negligent.

Almost sounds as if Big Tobacco has finally met their match; but this brings up the "scorched earth" approach to defending lawsuits and Big Tobacco is the most proficient practitioner of this craft. To set the stage for this, let's look at the most classic definition of this theory of warfare:

A scorched earth policy is a military tactic which involves destroying anything that might be useful to the enemy while advancing through or withdrawing from an area. Apparently a translation of Chinese (Jiao Tu), the term refers to the practice of burning crops to deny the enemy food sources, although it is by no means limited to food stocks, and can include shelter, transportation, communications and industrial resources, which are often of equal or greater military value in modern warfare, as modern armies generally carry their own food supplies. The practice may be carried out by an army in enemy territory, or by an army in its own home territory.

Big Tobacco is famous for this strategy. In the context of litigation, it essentially means they and their armies of lawyers will do nearly anything and, some have claimed, anything, to destroy the plaintiff and the plaintiff's case. All is fair in the heat of the battle? Well, maybe, but some claim that Big Tobacco's scorching of the earth exceeds the measures employed by even the most ruthless adversary. They have been known to employ delay tactics in hopes that the plaintiff will die before the case can reach trial; they have been known to drag their feet to the point of violating court orders in an effort at delaying cases from reaching the courthouse for years. They have allegedly, in the past, withheld evidence to avoid the presentation of documents clearly demonstrating deceitful and fraudulent practices.

In fact, one of the very famous warriors against Big Tobacco's tactics when he went after them, Richard Scruggs said, "This was an industry that had never been beaten, that had literally defied the judicial system and the regulatory system for decades, and yet was killing millions of people. You know, it was just a challenge that cried out for somebody to do it."

Another respected Big Tobacco adversary, former Attorney General of Mississippi, Mike Moore, said: "Because they come after you. And they did. They sent former attorneys general, hired as lobbyists, to every attorney general in this country. They sent business representatives, industry representatives, not just tobacco, but whatever state it was in. In Louisiana, they sent a chemical industry and oil industry to the state attorney general, said "You better not do this or we are coming after you." You know, "It's bad for business." I mean, in my own state, my governor sued me."

So, what will Big Tobacco do with the plaintiffs who pursue them in the "Engle" class of cases? Probably the same approach. They know they have a group of sick, elderly and infirmed smokers or ex-smokers. My guess is they have already crunched the numbers and have calculated the length of delays needed in order to allow a sufficient number of the Engle class plaintiffs to die or become worn out with the litigation.

Some of the greatest trial attorneys in the State of Florida; in fact, some the best trial attorneys in the country are coming together to further the fight on behalf of injured victims of Big Tobacco. For the first time in history Big Tobacco will face thousands of individual lawsuits and a cadre of skilled trial attorneys that they have never had to face before at one time. That is the good news for the Engle class victims.

Originally posted at InjuryBoard by John Hopkins

The Law of Large Numbers

John Hopkins — Mon, 11 Dec 2006 10:49:57 GMT

The "law of large numbers" is the theory upon which all insurance exists. Essentially, it says that if you can put enough "risks" together, then the majority can pay the claims of the minority. It relies on the idea that, in any large group, it will be the minority who suffer some sort of loss and submit an insurance claim. The larger the group, the more likely that premiums paid by the policyholders will cover losses and provide the insurance company with a profit. So, it goes, that if you limit the possible numbers in the group, you may suffer adverse loss experience.

If I provide insurance to Kate Winslett's legs, for example, and promise to pay for certain, stated injury to her legs; my group from whom I receive premiums is limited to one. This is the oppositie of the law of large numbers; in that I have no group over which I can spread my potential losses.

This theory becomes important in Florida policyholders' current problems with insurance and what has been dubbed the "insurance crisis". We seem to have experienced many insurance crisis in the recent past; just recently we punished injured victims in exchange for supposedly helping doctors with malpractice premiums. So, now the insurance industry has created a new insurance crisis.

Florida is not the first or last state in which the insurance industry gets a bad taste for paying lots of claims and decides it has had enough. It has happened repeatedly over the years and as long as states allow it to happen, it will continue. Many states have found solutions to these crisis that do not involve punishing the average citizen; as prior answers our legislature has come up with have punished average Floridians.

If we approach the problem from the perspective that it is not new and that other states have dealt with it; then it is not really rocket science. It is not likely to really be the huge campaign issue that Charlie Crist made it out to be. For example, in the late 60's, urban America was plagued with rioting and crime in its inner cities areas. Insurance companies were sprinting away from insuring the areas; using a technique called "redlining". In answer to this, FAIR Plans were opened in various states (Fair Access to Insurance Requirements) and these entities provided insurance coverage in the areas that insurance companies refused. These associations were formed through legislation requiring every insurance company writing property insurance in the state, to participate in the losses and profits of the association. In this way (remember the law of large numbers) no single insurance company would have to shoulder any large losses on their own. Rather, ALL the companies share in the losses.

One big step in the correct direction, would be to prohibit the State Farms and Allstates in the state from forming a "Florida" company, to artificially appear to be losing more money than they really are. Currently, state law permits large conglomerate insurance companies to create a "Florida company" and book their losses and profits through that company. The result is that when a catastrophe occurs, it appears as though the companies are getting hurt worse than they would appear to be if measured against the assets of the larger, "parent" company (once again, think "law of large numbers"). This allows these "Florida companies" to publicize the horrible losses they suffer when, for example, a hurricane visits our state.

So, the message to Florida legislators? If you really want to solve the problem, you can. There are other approaches that have been successfully used. Similarly, if you really do not want to solve the problem, you will not. My advice is to ignore the insurance lobby that helped you get elected and concentrate on the average citizens who imagine they elected you.

Originally posted at InjuryBoard by John Hopkins

First, Physician Do No Harm

John Hopkins — Fri, 08 Dec 2006 14:18:58 GMT

Three years ago, insurance companies and rabid tort reformer physicians convinced the unsuspecting public that tort reform was needed to reduce malpractice insurance rates being paid by physicians. They told the public that victims of medical negligence were simply litigious and that trial lawyers were greedy. They told the public that if tort reform was not passed, they were all leaving Florida for greener pastures. Well, tort reform passed; injured victims can no longer receive the compensation they deserve; insurance company payouts are down; and doctor malpractice rates are no better than they were before tort reform. Once again: the insurance industry wins!

The Pensacola News Journal reports that payouts since 2003 have dropped 43.6 percent and insurance companies have booked 2005 profits of $803,000,000!! What level of premium decreases have physicians seen? First Professional Insurance co. has apparently filed an 11% rate reduction. But, if you are a victim of a physician's negligence, there is a limit to the value of the compensation you should receive; at least according to the doctors.

Physicians have historically bemoaned "run away juries" and unrealistic damage awards. First, if they are honest and look at the statistics, it is crystal clear that doctors uniformly win more than victims in medical malpractice cases. Further, the average damage awards in medical negligence cases are anything but excessive. Let's take an example; 30 year old patient is brain damaged and paralyzed as a result of medical negligence. It is expected that he will live a normal life expectancy; so, 40 more years. The patient's non-economic damages are capped at $500,000 for 40 years of living as a paralyzed brain injured person. That's $12,500 per year; $114.15 per day; and $4.76 per hour. So, physicians apparently feel that, if they cause injury as the result of their negligence, it is fair to compensate the injured victim at a rate lower than the minimum wage. I have to wonder when they will feel the same way about their fees.

So lawmakers and physicians can be proud that they have lined the coffers of the insurance industry, while punishing victims of medical negligence. First, physician do no harm? Only if you think you can cap your damages?

Originally posted at InjuryBoard by John Hopkins

Drug Companies Scamper to Garner Members of Congress

John Hopkins — Sun, 26 Nov 2006 11:31:50 GMT

If you are in the US senate or house, Big Drug Companies want you! So, if you want a luxury vacation, a free executive jet ride, or a contribution, just speak up as the pharmaceutical lobbyist comes to call.

The New York Times reported that: "Drug Industry Is on Defensive as Power Shifts". Apparently, Big Drug Companies do not think that Democrats will be quite as generous with them as Republicans have been. Big Drugs is afraid the Democrats might do something to benefit constituents, such as allowing Medicare to negotiate lower drug prescription prices or permit cheaper Canadian drugs to be purchased by Americans. But, would even the Democrats do something so heinous as trying to help the average American. Well, that seems to be Big Drug's worry because they are recruiting lobbyists from just about everywhere.

Although the pharmaceutical companies traditionally spent $100 million dollars a year to lobby congress, they seem on the verge of throwing significantly more "influence" at this problem. They have also gone out and tried to find all the Democratic congress members' "ex" one thing or another:

Mr. Greenwood, a former Republican congressman from Pennsylvania, said he had a list of 37 Congressional Democrats whom he intended to call in the next month.
Amgen, the biotechnology company, recently disclosed that it had retained as a lobbyist George C. Crawford, a former chief of staff for Representative Nancy Pelosi of California. Ms. Pelosi, the House Democratic leader, is in line to become speaker in January and has said that the House will immediately take up legislation authorizing Medicare to negotiate prices with drug manufacturers.
Amgen is also seeking strategic advice from the Glover Park Group, a consulting firm whose founders include Joe Lockhart, a former press secretary for President Bill Clinton.
Other major drug companies have been snatching up Democratic former-aides-turned-lobbyists. Merck recently has hired Peter Rubin, a former aide to Representative Jim McDermott of Washington, one of the more liberal House Democrats. Cephalon has hired Kim Zimmerman, a health policy aide to Senator Ben Nelson, a conservative Democrat of Nebraska.
The Biotechnology Industry Organization has retained Paul T. Kim, a former aide to two influential Democrats, Senator Edward M. Kennedy of Massachusetts and Representative Henry A. Waxman of California.

Perhaps this will be only one of the tests facing the new Congress. We may be able to see what Democrats stand for and whether they can stand up to Big Business, like the Drug Companies. Will they stand firm with Americans or will they be swayed by Big Drugs' influence? For sake of Americans who have already been taken advantage of by Big Drug for far too long, let us hope that Democrats show up with back bones and honest wills.

Originally posted at InjuryBoard by John Hopkins

Frivolous Lawsuits "Picking On" Big Business

John Hopkins — Mon, 20 Nov 2006 11:23:46 GMT

A California group, Citizens Against Lawsuit Abuse (CALA), thinks that corporate America needs protection from lawsuits. They fear that Big Business can not continue to reap profits producing products they know are dangerous and so, they intend to continue a campaign to "inform" the public. According to Ralph Shaffer, Cal Poly Pomona Emeritus of History, they intend to continue their campaign of half truths; only giving the public the information that will leave the impression they want to leave with an unsuspecting public:

Ignoring the multitude of health experts who have warned us against dangerous trans fats, CALA echoed KFC's frivolous claim about the safety of all KFC products. How do we know they're safe? Surely an agency controlled by the Bush Administration would intervene if consumers were in danger. Yeah, right.
Lurking in the background was the possibility of a consumer class action suit against KFC.
CALA and big business would like class actions to go away. They know they can beat into submission a single plaintiff. No private citizen can afford top-flight lawyers well-versed in product liability, with resources to track down evidence, engage in lengthy discovery and in the end win justice for the plaintiff. But big corporations can.

Imagine that a corporation produces a product in a way that is really only done to maximize profits; even though the corporation knows it is dangerous to produce the product the way they do. Imagine that, in the face of illness or injury, the corporation's "bean counters" demonstrate that, for a while, the corporation can risk the cost of lawsuits in favor of maximized profit.

Professor Shaffer says what Kentucky Fried Chicken, and the rest of the informed world, has known that dangerous trans fats could make you sick; maybe ultimately kill you. KFC, though, continued to cook with trans fatty acids; presumably because it made the food more attractive and, thus, maximized their bottom line. CALA came out with a press release that claimed:

A consumer group filed a lawsuit against Kentucky Fried Chicken (KFC) seeking to end the restaurant chain's use of partially hydrogenated oil in fried chicken and other dishes, even though all KFC products are safe to eat and meet or exceed all government regulations. That italicized clause was lifted verbatim from KFC's response to the suit.

As Professor Shaffer points out, CALA's press release is only a part of the truth; the part they wanted potential jurors to hear. The fact is, the lawsuit was filed by a highly respected organization, the Center for Science in the Public Interest and only filed after KFC refused to stop harming the public.

CALA and Big Business want product liability lawsuits outlawed; they want immunity for the Goliaths of business;and they want to maximize profit potential.

Imagine no lawsuits; imagine no trial attorneys to wage battle against Big Business; no right to access to courts in order to seek compensation against injuries and deaths. Imagine we are on our way to this very situation and citizens will be subject to "protection" by only Big Business' compassion. Certainly if groups such as CALA have their way, Big Business will thrive while "Rome" burns.

Originally posted at InjuryBoard by John Hopkins

We Can All Sleep Better...Malpractice Insurers Reaping Profits

John Hopkins — Fri, 10 Nov 2006 08:46:10 GMT

Injured victims of medical negligence continue to suffer the inability to find lawyers who have the expertise and financial strength to handle medical negligence cases. The passage of "tort reform" in Florida has created a situation in which injured victims can no longer recover fair compensation for their "human damages". Human damages are those that the insurance lobby feel juries have gotten carried away with in verdicts. You know, like the pain and suffering of losing a loved one as the result of errors committed during "routine surgery" or the pain & suffering of parents who must take care of their child brain damaged by health care errors.

But, alas, there is good news on the horizon! Although injured victims of medical malpractice may go without thier day in court and without the ability to receive compensation for their injuries; insurance companies are doing better! It was recently reported in the Birmingham Business Journal that the nation's fourth largest medical malpractice insurance company, ProAssurance, has posted a $29.38 million dollar profit.

So, we can all sleep better knowing that the insurance industry is profiting and health care providers are able to skirt accountability. Injured victims? Let them eat cake!

Originally posted at InjuryBoard by John Hopkins

Physician First Do No Harm; but if you do its OK to coerce patients

John Hopkins — Fri, 29 Sep 2006 11:08:39 GMT

The St. Petersburg Times reports a startling event. Physicians who, through less than candid means, convinced voters to limit the damages that victims of medical malpractice can collect; are now going to "convince" their patients to forgive them for their malpractice.

The Times reports that the waiver, which physicians will ask their patients to sign, will limit non-economic damages to $250,000. So, I guess the way it happens is that sick patients go in to see their "healer" and the doctor explains that he/she will be glad to "heal" them if they will simply sign this "little form". The sick patient does not want to sign the waiver; the healer apologizes for their inability to treat them without the agreement to limit the "healer's" liability to the sick patient in the event something goes wrong.

Physicians and the health care industry bemoaned that if the last round of tort reform was not passed by the public, they would all have to move out of Florida because malpractice insurance would not be affordable. Physicians' groups told the public that caps on damages were a good thing and they better pass them, if patients wanted to keep their doctors.

The insurance industry, though, stood before the legislature and testified that tort reform would have no effect on medical malpractice premiums and that Florida was not in the midst of a malpractice crisis. Study after study reveals the same thing: few malpractice cases are ever filed that lack merit and those that are filed against physicians are usually well deserved.

The fact is that the cost for a plaintiff's attorney to support the investigation and prosecution of a medical malpractice case is significant; sometimes into the hundreds of thousands of dollars. The average case takes years to get to trial and the plaintiff attorney is typically carrying all those costs for all those years. Since doctors statistically win in front of juries more often than plaintiffs; many attorneys end up "eating" all those costs in the event of a defense verdict.

The healthcare industry has done a dreadful and shameful job of policing itself. The medical boards are slow to ever discipline doctors and the "peter principle" is alive and well in the healthcare industry. Physicians have adopted the corporate health care mentality; where a patient is more a statistical profit margin than a "sick patient". Patients are treated to ten minutes and a cloud of dust from their physicians; rather than a caring, interested, healer.

Certainly, there are good doctors, just as there are good trial attorneys. I suspect patients will not see this waiver form thrust in front of them by good doctors.

And doctors whine about being sued; it has been the only thing keeping them in check...until now anyway.

Originally posted at InjuryBoard by John Hopkins

Light Cigarettes and Class Action

John Hopkins — Sat, 16 Sep 2006 12:34:56 GMT

The Tobacco Industry began marketing "light" cigarettes because? Anybody, anybody? It seems likely that it involved, at least a little, the need to hedge against the increasing sounds being made by the anti-smoking faction; don't you think? Could a fear of shrinking profits have been involved? Could they have had a desire to create the idea that smoking "light cigarettes" was somehow healthier?

The Schwab case being heard by Judge Jack Weinstein, in Brooklyn, NY, involves some of these very issues. A fascinating account of the hearing is published by Gene Borio at Tobacco on Trial

Apparently, the Big Tobacco lawyers were quite talented and, in fact, Borio reports that at times, he almost believed their arguments. Tobacco's lawyers argued that after publication of the study done by Dr. Neal Benowitz's group in 1983, "everyone" surely knew that smoking "light" cigarettes made little difference in the ultimate outcome. They argued that just because smokers switching to "light" cigarettes and smoking more (in order to get that much craved nicotine) could not be cited as fraud by Big Tobacco.

Once again, we have the argument by Big Tobacco that it is not really their fault. After all, they were providing a public service, right? They simply provided a drug everyone wanted and adapted to "light" cigarettes because the public wanted them! What they interestingly avoid, of course, is the careful manipulation of nicotine; the brilliant marketing campaigns to enlist more and more nicotine addicts; and their failure to disclose to the public that they knew or certainly should have known that "light" cigarette smoking does not equate to lower risk.

Originally posted at InjuryBoard by John Hopkins