Maryland Injury Lawyer Blog

Gauging the next “move” based solely upon how much the other side has budged- “tit for tat” negotiations with no bearing on one’s own case evaluation is another common mediation mistake. It is understandable that negotiators and mediation participants desire proportionality and reciprocity in adjusting demands and counteroffers. The problem is that many adjusters think that plaintiffs have no ceiling on the amount that they can demand, whereas defendants can never offer anything less than zero. For this reason, arguments that, “We’ve come down by $100,000 so you need to come up by $100,000” often fall on deaf (adjuster or defense lawyer) ears.

Defense lawyers often set up mediations better than personal injury lawyers. The defendant's lawyer will call you and ask for a demand. You decide to be reasonable. So when you show up at the mediation, the range is between reasonable and zero. That is the wrong psychology to settle a case.

The best way to address this problem: if defendant puts you in this game, don't be above the game with your reasonableness. Your opening demand under this dynamic should mirror the defendants’ maximum exposure. Most states now have caps on non-economic damages. Add up your economic damages: past and future medical expenses, past and future lost wages, loss of earning capacity, vocational training and/or rehabilitation. Add that number to the amount allowed under the applicable non-economic damages cap. This should be a good approximation of the maximum exposure on the claim. With any luck you will be right around the amount of the reserve the insurance carrier has set for the claim. This should help in estimating the settlement value of the case on the continuum between maximum value and zero. This will let you calibrate your demands to where you want to end up on a case, not necessarily to match the other side amount for amount.

This tactic only works in a case where it is possible a jury would give such an award. Not likely but "best day possible." If you are demanding the cap in a soft tissue injury claim, you are also sending the wrong message. Similarly, when you demand $5 million in a case where your cap is $2 million, you are sending the same "I'm not exactly sure what I'm doing" message.

The Yaz lawsuits pending around the country in federal court were consolidated yesterday in MDL-2100, Yasmin and YAZ Marketing, Sales Practices and Products Liability Litigation. John Cord's Drug Recall Lawyer Blog provides all of the details of the transfer. You can find an explanation of what the Yaz MDL means to pending and future Yaz lawsuits here.

Sean Wajert's MassTortDefense blog reports that Bayer moved last week to dismiss the master complaint in the federal MDL involving combination aspirin products pending in New York.

Plaintiff's' lawyers in this MDL allege Bayer marketed combination aspirin and dietary supplement products without approval from the FDA and deceived the plaintiffs and putative class members with respect to the safety and efficacy of the products.

So the plaintiffs used these products and suffered serious injury which is why we are making a federal case out of this? Not really. Instead, plaintiffs claim damages because they say they would not have purchased these products if they had known that Bayer did not file a new NDA for each of these combination products, but instead relied on prior FDA review.

I'm sitting in the back row but I'm just not a huge fan of lawsuits against drug companies where no one has actually been injured. I also realize that complex litigation with what I'm sure are sophisticated issues cannot be reduced to a tag line like, "C'mon aspirin has been around for a zillion years." That said, aspirin has been around for like a zillion years.

The Yaz and Yasmin litigation is just now starting to take off, with at least 11 lawsuits around the country. Lawyers evaluating Yaz/Yasmin cases need to pay particular attention to (1) the injuries; (2) the defendants; and (3) viable claims.

Continue reading "Yaz Lawyer: Information for Attorneys Handling Yaz/Yasmin Lawsuits" »

CNN reports that an FDA government advisory panel voted yesterday to recommend eliminating prescription drugs that combine acetaminophen with narcotics -- such as Vicodin and Percocet -- because of their risk for overdose and for severe liver injury.

I'm glad to see the FDA is looking at the safety and efficacy of existing drugs. There is no question that Vicodin and Perocet are misused and overprescribed. My only fear with a recall or withdrawal of these drugs for what I'm guessing is the 5% of people on Perocet or Vicodin that really need the drug. They are in great pain, are not finding relief elsewhere, and the benefits of the drugs far exceed the risk of overdose or liver damage for that patient.

The Courier-Journal in Louisville, Kentucky has an article on an amazing lawsuit in Kentucky in yet another derivative claim of the fen-phen litigation. Plaintiff claims that her lawyers told her that her echocardiogram showed that her heart was "like a tire that might burst” as a result of the use of fen-phen.

The claim made by a former paralegal of the law firm handling the case is beyond stunning: medical tests were altered to show more heart damage than expected and destroyed test results that were not consistent with plaintiffs’ lawyers’ theory of the case.

The law firm did what a lot of plaintiffs’ law firms do in product liability cases where there is a chance of significant recovery: they offer plaintiff a medical test at no charge which is characterized as an independent medical exam. In this case, the test was an echocardiogram.

As many good stories do in 2009, this one also involves sex and (audio) tape. Plaintiff’s lawyer is accused of telling his client that she needed to “spend some time on [her] back” with him (later in the conversation he said he was kidding), that he wanted to touch her breasts, asking her how many people she had had sex with, and the like. Plaintiff taped the conversations because – get this – her husband did not believe her. The article gives the impression that Plaintiff never really voiced objection to these comments.

Who do you root for in a case like this? Not the lawyer who, on his best day, acted inappropriately in the case. Bar counsel in Kentucky has put on hold its evaluation until after the case, but eventually these claims are going to be heard. But it also hard to root for a Plaintiff who claims the lawyer and his law firm damaged her "mentally and emotionally" and "caused her a great deal of humiliation.” Exactly how much money are allegations like this worth? There is no question that the allegations are very serious. But there is an incredibly important difference between making allegations of serious misconduct and allegations of serious injury.

A hospital did not breach a duty of care as a matter of law to a police office who was injured responding to a traffic accident allegedly caused by a just-released colonoscopy patient, Massachusetts' highest court has ruled, affirming the trial court below.

The police officer responded to an emergency report of a pedestrian-automobile accident. On his way to the scene of the reported accident, Plaintiff's police car was hit by another car, causing what were apparently pretty serious injuries. The pedestrian involved in the accident to which the Plaintiff was responding had earlier that day undergone sedation after a colonoscopy at Brockton Hospital. Plaintiff's theory of the case was had the hospital provided an escort for the patient/pedestrian, he would not have had to respond and the accident would not have occurred.

Specifically, Plaintiff argued that a duty of care existed under two theories to back door the foreseeability problem: (1) a "special relationship" the hospital had with the patient and with Plaintiff, (2) a voluntary assumption of a duty of care by the hospital to protect third parties from harm caused by "impaired" patients.

The case generated some attention. Amicus briefs filed by the Massachusetts Academy of Trial Attorneys in support of Leavitt, and by the Massachusetts Defense Lawyers Association and the Professional Liability Foundation, Ltd., in support of the hospital.

The Massachusetts high court found that both theories were not distinctions from the duty and foreseeability problem in finding that a hospital owes a duty of care to a nonpatient third party to prevent a sedated patient from causing injury after the patient leaves the hospital.

Whether negligence extends to "an innocent third-party bystander" was recently decided in Maryland in Gourdine v. Crews. In that case, the family of a man killed in an auto accident brought a lawsuit against Eli Lily claiming that his death was caused by a diabetic who blacked out while under treatment with two insulin medications.

Continue reading "New Massachusetts Opinion on Duty and Foreseeability" »

We recently added a sixth lawyer, John Cord, to our team at Miller & Zois. You can read his biography here.

John has started his own blog, the Drug Recall Lawyer Blog. This blog is directed a product liability lawyers handling drug and medical device case in Maryland and around the country. If you find it useful, add it to your list of favorites (as well as the Maryland Injury Lawyer Blog, of course).

The Washington Post has an article providing more detail on Study 15, the Seroquel study that saw the same fate as many pharmaceutical company drug trials do that the companies don't like: they stick them in their glove compartment - even deeper than I would stick my parking tickets in college. The chickens came home to roost on my parking tickets about 9 months later. AstraZeneca has had this study stuffed away for 12 years.

For the folks that made a ton of money off Seroquel and have since left AstraZeneca, it all worked out just fine, didn't it? Is it that same warm fuzzy feeling I got when I learned that many of the guys that caused the AIG debacle got huge bonuses? No, the feeling is different for two reasons.

Continue reading "Seroquel Study 15" »

Wyeth v .Levine!!!! Plaintiffs' lawyers have seen drug (and medical device) injury victims take punch after punch. But in a huge win for patient safety, the Supreme Court upheld in a 6-3 ruling today that in a Vermont woman's verdict against Wyeth for injuries she suffered after taking one of the drug maker's medicines. Justice John Paul Stevens, writing for the majority, said FDA oversight of drug labeling doesn't prevent the filing of state tort claims.

It is a little bit pathetic that this is a huge win. Gee, the law for the last 90 years is not going to be completely uprooted. Yippy! But the Drug and Device Law Blog predicted victory and those guys have been on the winning side of most everything lately. (A guest Drug and Device Law blogger also broke down the justices individually and predicted victory but I cannot find the post to link to it.) So I'll admit I was more than a little scared. Now, I'm thrilled that even this conservative Supreme Court found decisively in favor of the Plaintiff.

The one downside: a loss may have mobilized Congress to act. This win in Wyeth v. Levine could ironically slow progress on a bill to overturn Medtronic v. Riegel.

You can find an article on the verdict here and comments on Justice Alito's dissent here. You can find the Supreme Court opinion in Wyeth v. Levine here.

Last Wednesday, I reported on the Seroquel summary judgment in Florida in the much awaited first Seroquel MDL. The opinion appeared to give AstraZeneca Pharmaceuticals a boost (although there are a thousand variables that are involved in the 1% rise in the stock price – the Seroquel lawsuits are a small piece of the large mosaic that is a major pharmaceutical company) and depress not only Seroquel litigants and their lawyers, but also plaintiffs’ lawyers in drug and medical device litigation, who have had a tough year.

But after reading the order granting the summary judgment in this Seroquel case, the reports of the demise of the Seroquel litigation were greatly exaggerated. This case was decided on its particular facts, and the fact pattern in this case was not advantageous for Seroquel lawyers.

Continue reading "Seroquel Lawsuits: Followup to Summary Judgment Ruling in Florida" »

Unfortunate setback today in the AstraZeneca Seroquel lawsuits pending in federal court: two lawsuits set for trial in Orlando next week have been dismissed. This was the first MDL class action trial in federal court, where most of the Seroquel lawsuits have been filed.

The judge’s reasoning for throwing out these Seroquel cases was that the scientific evidence does not “meet the standards" to go to trial. I cannot figure out whether this is a general or specific causation opinion with respect to the link between Seroquel and diabetes. I assume it is the latter because I do not think there is dispute of the link between Seroquel and diabetes.

The Bloomberg article on the ruling mentioned something from one of the plaintiffs' Seroquel lawyers I found particularly odd:

This ruling basically means that there were some glitches in how these two cases were prepared for trial.

I'm sorry? Come again? What glitches? Can we get a little further explanation? Someone needs to clue in reporters in these kinds of cases: it is okay to ask follow-up questions.

I will report more when I learn the exact basis for the ruling. Not much good news for plaintiffs in the drug and medical device world of late.

The Supreme Court's ruling in Medtronic v. Riegel has largely been ignored by broadcast media. But I found a clip from MSNBC's “Countdown with Keith Olbermann” on preemption and President Bush's efforts until the bitter end to push for preemption.

Keith Olbermann's portrait on these things is not exactly "fair and balanced." I think it is a mistake not to present more fully both sides of the argument because it is hard to change minds without presenting all of the facts. But I'm just thrilled to see some broadcast media discussion - albeit MSNBC - of the perils of preemption.

The Supreme Court Oral Arguments in Wyeth v. Levine are available here. I read about 40 pages of it - more than half - and I hope to finish it tonight.

Is there anyone who even pretends to know how the Supreme Court is going to rule in this case? Potential upside to a broad pro-defendant ruling: Congress and President Obama are mobilized to pass a strong bill that overrules Wyeth v. Levine and Medtronic v. Riegel.

The Wall Street Journal has an article today on the oral arguments before the Supreme Court in Wyeth v. Levine. In an unrelated but very related story, The Washington Post had an article from a Republican suggesting that the RNC drop the focus on McCain and turn to salvaging the Senate races.

These stories are related because if the Democrats get to 60 senators, I think Wyeth v. Levine and Riegel v. Medtronic will become a moot point. There are interesting landmarks on the path to 60. The first is the outcome of Ted Stevens’ trial. If Stevens is acquitted, Republicans should hold that seat. Who knew Alaska could have the impact it is having in this election? The second is whether Al Franken can unseat Norm Coleman in Minnesota. I hope Franken wins and, like most of us, I enjoyed Stuart Smalley on "Saturday Night Live." But after reading one of his books, I'm not sure he is a step towards a post-partisan movement. Franken sings the "all conservatives are evil and all liberals are righteous" spiel that the whole country is tired of hearing.

There has been evidence since 2002 that drugs in Seroquel’s class caused a 3.34 times greater risk of diabetes than other antipsychotic drugs (which is what Seroquel is supposed to be prescribed for in the first place). In September 2003, the FDA began mandating a warning indicating that Seroquel patients are at great risk for type 2 diabetes.

The Seroquel diabetes class action lawsuit alleges that Seroquel’s manufacturer knew that Seroquel caused a high occurrence of diabetes, but failed to adequately warn doctors or patients of the risk. As is often the case, the other countries' version of the FDA required a more explict warning about the risk of type 2 diabetes with Seroquel. The Japanese warning specifically informing doctors of the need to monitor Seroquel patients. The Japanese label also indicates that Seroquel is contraindicated for use in patients with diabetes or a history of diabetes. In other words, Seroquel's manufacturer felt comfortable providing doctors and Seroquel patients in the United States less information than Japanese Seroquel patients were afforded. Why? Two words: market share. The more bad information about Seroquel that was made available, the less prescriptions - particularly the off-market prescriptions for Seroquel which is where the real money is in Seroquel sales.

Continue reading "Seroquel Diabetes Lawyer: Attorneys for Seroquel Induced Type 2 Diabetes " »

Our lawyers are now investigating potential Spiriva HandiHaler lawsuits after the Journal of the American Medical Association, underscoring long held concerns, reported that Spiriva HandiHaler users may face increased risk of heart attacks or strokes and other cardiac problems.

The Spiriva HandiHaler (generic: tiotropium bromide inhalation powder) is an inhaler drug used by millions of people with emphysema and bronchitis. The Spiriva HandiHaler was approved in 2004. Along with its cousin Atrovent, which has been around for over 10 years, the Spiriva inhaler is used once or more daily to relax muscles and open airways in a patient’s lungs for patients with emphysema and chronic bronchitis (which are conditions under the umbrella of chronic obstructive pulmonary disease - COPD).

All indications are that both of these products – Spiriva and Atrovent - are efficacious for the purpose of opening the patient’s lungs and facilitating breathing. This new study, however, raised grave concerns that these inhalers could be associated with potentially fatal cardiac conditions. The study looked at other drug trials and found that people taking Spiriva or Atrovent had a 58% higher risk of developing cardiac problems, with far reaching complications including strokes, heart attacks and death.

Stating the patently obvious, a 58% higher level of risk is unlikely to be the product of mere chance. This is particularly true with this JAMA study on Spiriva and Atrovent because this study looked at a number of studies, so the number of patients included in the analysis was large. Approximately 1.8% of the people on either Spiriva or Atrovent in the JAMA study developed fatal or nonfatal heart problems over a period of several weeks to several years. Patients on different drugs or a placebo have only a 1.2% risk.

Yet Boehringer Ingelheim, who manufactures the Spiriva and Atrovent inhalers, and Pfizer, who markets these inhalers, have done their own analysis just days after the JAMA study was released (coincidentally?) analyzing 30 clinical trials that suggest that the Spiriva inhaler does not increase cardiac risks.

To make matters more confusing, the FDA said back in a March MedWatch alert that using Boehringer Ingelheims’s own data from 29 studies of about 13,500 patients found that Spiriva is linked to an excess risk for strokes. Specifically, this data found that there was an excess risk of stroke for 8 patients of every 1,000 taking Spiriva for 1 year, compared to 6 patients of every 1,000 taking a placebo. This data is not as overwhelming as the 58% figure suggested by the JAMA study but it still is cause for concern.

There is no question that many patients with COPD need pharmacological assistance with their disease. Of the 24 million Americans with COPD, less than half are using medication to assist with their condition, which is one reason why we have 100,000 deaths a year in this country from COPD. And there appears to be no question that Spiriva is effective in fighting COPD. But our lawyers’ question is whether Spiriva's warning adequately informed patients of the increased risk of cardiac problems. Did they even modify their label after the FDA’s MedAlert earlier this year? Our lawyers also want to investigate whether Spiriva was properly tested for cardiac concerns, because there are other inhalers available that have not been linked to heart attacks and strokes.

Our lawyers believe there is enough information out there to begin evaluating Spiriva cases with an eye towards a potential class action lawsuit. If you would like to speak to a Spiriva lawyer, call 800-553-8082 or click here for a free Spiriva lawsuit consultation.

Last month, the Judicial Panel on Multidistrict Litigation (JPMDL) created MDL for the 11 NuvaRing lawsuits pending in federal court. Discovery for federal NuvaRing lawsuits – both pending and future - will be centralized for discovery purposes in the Eastern District of Missouri before Judge Rodney W. Sippel. More NuvaRing lawsuits are pending in New Jersey after plaintiffs defeated defendants’ efforts to remove all NuvaRing lawsuits to federal court. (Read more on New Jersey NuvaRing lawsuits.)

These NuvaRing lawsuits involve blood clot-related injuries to women such as pulmonary embolisms, strokes, heart attacks, and deep vein thrombosis (DVT). Because NuvaRing is a birth control device, many of these injuries are occurring in young woman who are rarely at risk for non pharmacological induced blood clots.

The challenge many products liability lawyers face in drug and medical device injury cases is that the patient population using the drug or device is more likely to suffer from the injury allegedly caused by the drug. Many patients on Seroquel, for example, are more likely to have diabetes because Seroquel is often prescribed for older patients (Seroquel is ubitiquous in many nursing homes). These patients are more likely to have diabetes than the general population. So while a plaintiffs’ lawyer might be able to show that Seroquel causes diabetes, it might be a struggle to show that Seroquel caused diabetes in that particular patient.

The Prozac suicide cases are an even better example. Eli Lilly argues that many on Prozac are more likely to commit suicide with or without the Prozac so we should not be surprised that patients on Prozac might commit suicide in greater numbers than the patient population. With respect to specific causation, the reason the patient was put on Prozac in the first place is claimed – sometimes for good reason – as the real etiology of the suicide.

Many of the NuvaRing cases are not going to have difficulty specifying causation problems because women who are on birth control are generally – although obviously not always – relatively young. Plaintiffs’ lawyers handling NuvaRing cases are going to have an easier time proving specific causation if general causation is established.

I was tagged by the Drug and Medical Device Blog with an Internet meme (I don’t know what this is but I get the idea) asking Maryland Injury Lawyer Blog to (1) to identify five non-law blogs that we find to be interesting, and (2) to tag five lawyers to do the same thing.

I’m glad to be included by the Drug and Medical Device Blog. I’ve made fun of this blog on many occasions because of its “ultra partisan” view on drug and medical device injury litigation. How do I know that their views are uncompromisingly pro-pharmaceutical company? Because I read every single post they write. Anyone involved in products liability litigation would be foolish not to read this blog. It is the most well-written and informative blog discussing drug and medical device litigation by a landslide. It is also – to the extent such a blog can be – funny and entertaining, which makes this blog all the more maddening to me: anyone smart and funny should be obligated to see the world though the same lens that I do. This should be a rule.

These are the five non-legal blogs I like:

The Huffington Post – I do not like Michael Moore, even though we largely agree politically, because I think he is knee jerk closed minded in his view. I think the Huffington Post falls in this trap far too often, as well. Yet I find myself sneaking over to read it every day since Governor Palin was nominated. I’m like the guy looking at "The Kramer" painting on Seinfeld: “It hideous, yet I can't turn away!"

Deadspin – An outside-the-box sports blog that presents the sports news of the day with colorful and funny commentary

The Daily Dish – I have mixed feeling on Andrew Sullivan’s views of the world but I just really enjoy his writing. (Same goes for George Will, even though I can’t understand half of what he writes.)

The Severna Park Health & Fitness Blog – I have a horse in this race but Club One Fitness' blog is good on health and fitness and local Severna Park news (where I live).

The Anonymous Lawyer Blog – You might argue that this is a legal blog, but it’s fiction, so I’m going to include it. The blog premise is that the hiring partner of a large law firm blogs about his day at the office. The author, a recent law school graduate, has lost interest in the character so there are no new posts but if you have never read it, you can jump in the archives. If you have ever done defense work at a large firm, you will almost certainly find it funny.

The Five Blogs I Tag:

The Illinois Trial Practice Blog – Evan Schaeffer keeps this discovery and trial tactics blog on message but hopefully he will indulge us by playing along.

The South Carolina Trial Law Blog – Dave Swanner’s blog on running a law practice and maximizing the value of personal injury cases

Overlawyered – I disagree with Walter Olsen on a lot of issues but this is a quality blog that makes many good points and points out abuses to the legal system that we all need to be concerned about.

The Baltimore Injury Lawyer Blog – A new Miller & Zois blog written by John Bratt that I think is already one of the best trial practice blogs out there. Check it out for yourself.

Maryland Injury Lawyers Blog – This is Goldberg, Finnegan & Mester’s blog on Maryland personal injury law. Sure, they basically stole our unique, outside-of-the-box blog name by adding an “s” but they are our friends and they are really good accident and malpractice lawyers.

These are some personal injury related links from around the country this week:

The Burlington Times News has an article about North Carolina’s decision to require North Carolina doctors to report all medical malpractice payments greater than $25,000.00. These results will be released to the public. The article notes that only 4% of the doctors in North Carolina in the last seven years have made malpractice payments.

Legal Newsline.com has an article on how medical malpractice damage caps in Texas have decreased malpractice premiums. As I have written before, in spite of what a lot of medical malpractice lawyers have argued, this cause-and-effect relationship is textbook economics. I think it is also true that the quality of patient care in Texas is falling dramatically because there are no repercussions when a doctor seriously harms a patient.

The Baltimore Injury Lawyer Blog has a post on John Bratt’s recent auto accident trial in Montgomery County.

Pharalot reports that the FDA will now be compile quarterly a list of drugs that have been identified as having potential safety concerns. Can anyone argue this is a bad idea?

The new Maryland Accident Lawyer Blog has a post on the Maryland Court of Special Appeals’ recent ruling in a wrongful death car accident case that took the lives of a man and his three children.

The Illinois Trial Practice Weblog has a post about the top 10 rules of evidence every lawyer must know. (Top 10 lists are irresistible.) The same blog also has a good post on videotaping your opponent’s deposition.

Does Sarah Palin support the idea of jury nullification?

The Baltimore Sun reports that the FDA may not be properly screening drugs for the potentiality of the medications inducing suicide. Plaintiffs’ product liability lawyers who have been looking at these issues for the last 20 years are Captain Renault-like stunned to learn that the FDA (and the drug companies) has not properly focused on the risk of drugs – particularly antidepressants – and suicidal thoughts and ideations.

Finally, the Torts Prof Blog continues to put together a comprehensive list of personal injury links from around the country.