Maryland Injury Lawyer Blog

The Baltimore Sun reported last week that the FAA has banned pilots and air traffic controllers from using the quit-smoking drug Chantix following a study that found it had apparently contributed to auto accidents and other mishaps that posed risks to both users and others.

Chantix began as a success story, billed as a relatively risk free drug that helps you quit smoking in a far more civilized way than just quitting cold turkey. The “easier to quit smoking” part of the hype was as advertised: 44% of people taking Chantix were able to quit smoking in comparison to 17.7% percent of those taking placebos. Chantix is believed to block nicotine from stimulating the certain brain receptors, so nicotine would not give users the dopamine boost they receive when they smoke. Chantix also stimulates the release of low but consistent levels of dopamine to help decrease nicotine urge.

Correctly expecting the drug would be a real money maker ($883 million in 2007 alone), Pfizer had requested and received an accelerated review by the FDA and Chantix was approved in May of 2006. But it takes a while to see if serious side effect will emerge. Pfizer knows this as well as anyone from its experiences with Zoloft, a drug that was on the market for many years before reports of suicidal behavior (and lawyers filing lawsuits) forced Pfizer to put a warning on the drug.

Why doesn’t Pfizer just play it safe and put a suicide warning on the drug? As a lawyer who spent a number of years representing pharmaceutical companies, I certainly have a theory: warnings on the product label would have discouraged general practitioners from prescribing Chantix, which would have hurts sales. But in hindsight, not including a warning is going to cost Pfizer more in defending lawsuits and settling Chantix cases.

Our Chantix lawyers are investigating lawsuits on behalf of victims and their families who suffered a serious injury or death by suicide from the use of Chantix throughout the United States. If you or a loved one have experienced a severe side effect from Chantix, a Chantix lawyer at 1-800-553-6000 or click here for a free Internet consultation.

In a story that was making news before the Memorial Day weekend, GMAC Insurance polled 5,524 licensed drivers and asked them 20 questions from the tests given by various state motor vehicle administrations around the country. There are a zillion statistics offered by this study but the one that is getting everyone's attention is that approximately 33 million of us would fail a written drivers test if they took it today.

The lowest test scores were found in the Northeast. Drivers in the Washington, D.C. rank the second worst in the country, barely losing out to New Jersey for the dubious title of the state with the least knowledgeable drivers. Maryland and Virginia do not fare much better: Maryland ranks 41st; Virginia ranks 43rd.

This study is causing a good deal of faux angst in the media. Local newspapers are lamenting how poor their state ranks, leading to a lot of talk about how we have to make drivers' education a national priority.

Before we all get too worked up, it might be worthwhile to do a study to find out how many accidents are caused by the failure to understand the rules of the road. I cannot tell you how few serious injury auto accident cases our law firm has handled where the accident was caused by the at-fault driver not understanding the rules of the roadway. Instead, 99% of the auto accident cases our lawyers encounter are caused because the negligent driver either
failed to give the adequate time and attention to his/her car and the other cars or pedestrians on the roadway due to carelessness, or the negligent driver was impaired by drugs, alcohol, or as is often the case with truck drivers, lack of sleep.

What would make our roads safer is driving bigger, safer cars. But with gas approaching $4 a gallon, the incentive for bigger cars is going the other way.(Smaller cars can be made safer, but it increases the cost to make the vehicle, often beyond what car manufacturers and consumers believe is economically viable.) Beyond that and cracking down more on drunk drivers (which, regrettably, we are not seeing after so much progress in the '80s), the way to decrease car and truck accidents is to encourage people to be more careful and more risk adverse. But no one is sure quite how to do that.

I was a defense lawyer for a number of years. Incredibly, when I write motions, I still find myself reflexively referring to my client as “the Defendant.” But as time goes on, I’m starting to forget exactly how corporate defendants and insurance companies think. So whenever I get a chance to refresh my recollection, I like to grab that opportunity. I received yesterday a copy of a client’s prior claims file. You can review the redacted insurance file here. (For more sample legal forms and samples, visit the Miller & Zois Lawyer Help Center.)

Looking at this type of stuff is not exactly as insightful on your opponent thinking as videotaping the other team’s defensive signals in a football game, a la Spygate. But when putting your client’s personal injury claim together, it is good to remember what matters to the insurance companies and reviewing an insurance companies’ claims file is a lens to their thinking.

Digitek is manufactured by Icelandic generic drug-maker Actavis Totowa; it is distributed by Mylan Pharmaceuticals under the label "Bertek and by UDL Laboratories under the label "UDL." Digitek is medication for patients with mild to moderate heart failure, and control of ventricular response rate in patients with chronic atrial fibrillation. Digitek strengthens the contraction of the heart muscle, slows the heart rate and helps eliminate fluid from body tissues.

Digitek was recalled last month because it is linked to digitalis toxicity, which can cause nausea, vomiting, dizziness, low blood pressure, cardiac instability, bradycardia and death.

What happened? Apparently, tablets with double the appropriate thickness may have been commercially released. In other words, a patient taking 0.25 mg of Digitek might have received a pill labeled as 0.25 mg., but the pill itself was actually 0.5 mg. These tablets may have contained twice the approved level of active ingredient. It is not known yet exactly what happened, but the most obviously guess is that this is a manufacturing error. (Before you ask, the drug was made in the United States – not China.)

Our lawyers do not pretend to know exactly why Digitek tablets reflected half the dosage patients were actually receiving. But there are not many scenarios one can fathom where this apparent manufacturing error with Digitek was not the result of negligence of Actavis.

Accordingly, our Digitek recall lawyers are reviewing these Digitek overdose cases throughout the country with the expectation that a class action lawsuit will be appropriate. If you want to discuss your case with one of our Digitek lawyers call us at 800-553-8082 for a free consultation or click here for a free Internet consultation.

Dennis Quaid testified yesterday before the House Committee on Oversight and Government Reform considering the reversal of the Riegel v. Medtronic Supreme Court decision finding that state tort claims regarding medical devices were preempted if the FDA granted pre-market approval for the medical device. Dennis Quaid told Congress on Wednesday that taking away the right to sue pharmaceutical companies would turn consumers into "uninformed and uncompensated lab rats." Quaid emotionally described the near fatal drug mix-up in which his newborn twins were given 1,000 times the appropriate dose of Baxter’s blood thinner heparin in November at Cedars-Sinai Medical Center in Los Angeles.

Quaid has a lawsuit pending against Baxter for his twins’ heparin overdose. Medtronic v. Riegel does not bar his lawsuit but the Supreme Court will consider this Fall whether to extend the preemption umbrella to pharmaceutical drugs in Wyeth v. Levine. Congress has the ability to shut down all of this preemption talk by passing a bill negating Medtronic and Wyeth.

Apparently, Tom Davis from Virginia, the ranking Republican on the committee – fresh off his lovefest with Roger Clemens (any regrets on that one, Congressman?) – fell apart again, frozen by the presence of a star. He told Quaid that if this happened to his family, "I'd be suing everybody in sight." Interesting admission. What does this tell us? I’m just curious, Congressman, do you think you should get access to the justice you would seek but deny others because you are rich, famous, powerful, or all of the above?

Reminiscent of my blog post earlier this week, Quaid also said he has changed his tune on tort reform after the near tragedy. "Like many Americans, I believed that a big problem in our country was frivolous lawsuits," Quaid testified. "But now I know that the courts are often the only path to justice." I think Quaid is confusing “frivolous lawsuits” with tort reform which are two incredibly different topics. But, whatever, I am glad he is with us now.

I also have twins that had health concerns when they were born, so I certainly sympathize with what Quaid and his family went through. But while I love his movies, particularly the sports movies like Any Given Sunday, The Rookie, and Everyone’s All-American (although it ran a little long), I’m not sure Quaid is exactly the right person to be the anti-preemption spokesman testifying before Congress. I believe people who are famous and/or powerful have every right to speak up and use their power and influence to further their causes. But when Congress puts its seal of approval on the notion fame alone entitles you to a seat at a table to which you would otherwise be uninvited, it makes me a little queasy, even if the witness is someone that I’m in complete agreement with on the issue.

Others did testify, including Georgetown University law professor David Vladeck who told the House Reform and Government Oversight Committee what I have been saying repeatedly on this blog: the FDA does not have the ability – regardless of resources – to make drug companies accountable on their own. Committee chairman, Henry Waxman underscored my other theme: if these companies have no liability, all the financial incentives will push them down the wrong path and an already problematic situation from a pubic health standpoint will multiply exponentially.

Again, as long as President Bush is in office, all of this is just preliminary but it is good to get the ball rolling toward putting the preemption defense back in the hole in which it belongs.

In the Maryland Lawyer Blog a few weeks back, I wrote about what I thought was the primary fuel to the tort reform engine: people do not expect to be the victims of an accident that is the result of the negligence of someone else, and they certainly do not expect to be victims of medical malpractice. Statistically, they are right.

The odds were in favor of a West Virginia gynecologist when he went in for abdominal surgery last month. But after his surgery, the gynecologist developed an infection and developed severe and debilitating abdominal pain, decreased consciousness and overwhelming septic shock, requiring mechanical ventilation and additional surgeries. Attributing his injuries to negligence, the gynecologist brought a lawsuit against his doctors and the hospital for medical malpractice.

Flashback to April 7, 2008, the day before the doctor’s surgery: What would have the doctor said about caps on medical malpractice cases on that day? What would he have said about whether litigation is the answer? Obviously, in this case, he thought litigation was the only answer, filing suit an almost unheard of one month after the alleged negligence.

Assuming this doctor supported malpractice reform and caps before filing suit, does that make this West Virginia gynecologist a hypocrite? If you contend that he is, you have a lot of ammunition. But we have a hard time putting ourselves in someone else’s shoes and when we are forced to do so, it forever changes our perspective. The fuel that fills the tort reform bus is that most people on the ride have never meaningfully suffered from the negligence of someone else. People who are lifelong riders of the bus – like this doctor probably was – almost invariably get off at the first stop after they have suffered a serious injury that due care could have avoided.

You can find the article on this story here.

The New York Times ran an article yesterday aptly titled, “It Must Be Bob. I Hear His Hip Squeaking,” discussing people with hip implants, largely Stryker hip implants, who were told to try new ceramic hip implants. The Stryker hip implants and their sister implants were promoted as being much more durable than the previous generation of hip implants. But their hips soon began to squeak, raising concerns that the noises were not just embarrassing and uncomfortable, but foreboding of more serious problems with their hip implants. One patient has turned to You Tube to vent her frustrations with her Stryker hip implant.

The previous generation of hip implants, before 2003, had little problems with squeaking. The Times cited a Journal of Arthroplasty which found that 10 patients out of 143 who received ceramic hips from 2003 to 2005, or 7 percent, developed squeaking. Meanwhile, no squeaks occurred among a control group of 48 patients who received hips made of metal and plastic.

Last fall the FDA warned Stryker that it failed to take the steps needed to prevent squeaking and other problems. Many patients have had surgery to replace the squeaky hip implants. Many have hired lawyers to sue Stryker, arguing that these hips never should have been put on the market without proper testing because, as it often happens, Stryker rushed its ceramic-on-ceramic titanium hip replacement onto the market to create a competitive advantage with its competitors.

No one knows what the long term consequences of these problems are. “Catastrophic failure has been a concern in the past, with older ceramic components,” said Dr. James M. Bried, a California surgeon who fears that squeaking might be a harbinger of future difficulties. But while no one can foretell the future of these hip implants, recipients are asking the right questions. Hopefully behind closed doors, Stryker and the other hip replacement manufacturers are asking the same questions.

On Wednesday, the House Committee on Oversight and Government Reform begins hearings on the reversal of the Riegel v. Medtronic holding that state tort claims regarding medical devices were preempted if the FDA granted pre-market approval for a medical device. Pharmaceutical drug manufacturers have been on a real hot streak of late before this conservative Supreme Court. They are looking to extend their streak by asking the Supreme Court to extend the preemption umbrella to pharmaceutical drugs in Wyeth v. Levine, which is expected to be heard this fall. Congress has the opportunity to cut this pro-business Supreme Court off at the knees although I doubt they could get a bill past President Bush. Things may change in 2009.

The star studded cast of witnesses includes Dennis Quaid (whom I imagine will speak to the heparin overdose of his twins), William Maisel, (Medical Device Safety Institute), Aaron Kesselheim (Harvard Medical School's Division of Pharmacoepidemiology), David Kessler (former FDA head), David Vladeck, (Georgetown law professor who has written on preemption) Gregory Curfman (New England Journal of Medicine editor); Christine Ruther (drug company consultant) and State Representative David Clark (Republican state legislator from Utah who I suspect is in favor of preemption).

Again, I don’t suspect that this committee is going to try to send a bill to the floor anytime soon but it is good to get the ball rolling on righting the wrong of Riegel v. Medtronic.

I like to blog on Monday but given my figurative post-Mother's Day weekend hangover, I decided to review the original stories/opinions of others as opposed to venturing to offer my own:

The Baltimore Sun had an interesting article on allegations of bizarre misconduct by a Nevada judge in a bizarre story with a lot of interesting six degrees of separation subplots.

That Baltimore Sun also reports that former Supreme Court nominee Robert Bork settling his lawsuit against the Yale Club after his slip and fall. The New York Personal Injury Lawyer Blog has a complete post on the settlement and the exciting news that Judge Bork’s lawyer, who failed miserably in his efforts as Bork’s personal injury lawyer, has been selected as a member of John McCain’s steering committee for judicial selections.

The Washington Post has a good article on legal outsourcing in India, discussing both the exponential growth and some of the challenges in training lawyers in India.

The Maryland Lawyer Blog has a post on nominees for vacancies on the Maryland Court of Appeals and the Maryland Court of Special Appeals.

The Wall Street Journal's Law Blog has a post on how to fire an associate.

The Wall Street Journal has an editorial on tort reform in Mississippi where it attributes EVERY SINGLE GOOD THING that has happened in Mississippi to tort reform. Apparently, tort reform was the magic elixir to all that ails Mississippi. Who knew? If a stranger now helps a child get their cat down from a tree in Mississippi, tort reform is the root cause for the kindness. (Attention authors of Freakanomics: please expose this nonsense immediately.)

Above the Law has two goodbye emails from associates leaving their law firms. One Reed Smith associate gives an email/speech quoting JFK that has the pomp and circumstance of George Washington's "Goodbye to a Nation" speech or King Edward VIII's abdication speech. It would have been really moving except it was a junior associate leaving a mega firm, in which case it was just plain silly. On a more somber note, a Paul Hastings associate accuses her firm of terminating her because they wanted to get rid of her after her miscarriage, fearing she would get pregnant again. MyShingle also provides some commentary of this claim which is getting a lot of play in the blogosphere. Everyone is judging Paul Hastings guilty until proven innocent - probably including me. Even if these allegations are not well-founded, will this knock this firm from its high perch on the big firm food chain? If you were in-house counsel for a Fortune 500 company, would you start eagerly thowing new business Paul Hastings way?

The Illinois Trial Practice Weblog offers six tips for improving your direct examinations.

Finally, President Bush has nominated Judge Glen E. Conrad to one of the vacancies on the 4th U.S. Circuit Court of Appeals. Shockingly, Judge Conrad, a U.S. District Court Judge in Virginia, is described as one of the most conservative judges in the country. Apparently, Alan Dershowitz was not available.

The Legal Intelligencer has an interesting article about the size of personal injury law firms. I have always found it interesting that personal injury law firms in Maryland and in most states tend to come in two sizes: small and very small. Peter Angelos’ office in Baltimore is the sole exception in Maryland, largely because they have their hands around the asbestos juggernaut. Otherwise, I do not think there is a single plaintiffs' firm in the top 20 largest Maryland law firms. In contrast, Texas and Florida seem to have much larger, successful personal injury firms. I have never fully understood why the same business model would not apply, regardless of location. But even the largest of plaintiffs' law firms in the country are smaller than Venable's Baltimore office.

Every month or so, I report on the Metro Verdicts Monthly graph on the front of their publication which compares verdicts and settlements for a certain type of personal injury claim in Washington D.C., Maryland, and Virginia. Sometimes I am surprised by the difference in the results.

This month I am astounded by the difference between Virginia, Washington, D.C. and Maryland in median nursing home liability verdicts and settlements since 1987. The median recoveries in Maryland and Virginia are $125,000 and $175,000, respectively. This means that the median settlement and verdict in Virginia is 40% higher than Maryland. Virginia juries are generally more conservative than Maryland so this result is somewhat surprising. But here is what I find surprising: the average nursing home case settlement or verdict in Washington, D.C. is $700,000.

I have not done any sort of sophisticated jurisdictional analysis but I believe there is a general correlation between the size of nursing home verdicts and the size of medical malpractice verdicts. Yet these figures do not appear to support this conclusion. Metro Verdicts Monthly reports that the median settlement and verdict in Washington, D.C. for wrongful death medical malpractice cases over the last 20 years is $665,700. This is much less than Maryland’s median recovery of $900,000 or Virginia’s median recovery of $750,000.

These statistics would surprise me less if the study used average instead of median because the average can be influenced by extremely high verdicts or settlements that can create a misleading picture. But the median settlement or verdict number means that the study divided the jury verdicts and settlements into two equal groups, half having settlements or verdicts above the median and half having settlements or verdicts below the median.