Maryland Injury Lawyer Blog

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 this former paralegal of the law firm 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" »

The Drug Recall Lawyer Blog has a post today supplementing/rebutting Mark Herrmann's blog post on the Drug and Device Law Blog on the Daubert issues in the Bausch & Lomb eye infection cases. Mark posted his blog at 5:00 a.m. and John responded a few hours later.

I don't think the Obama campaign had a better rapid response.

Our law firm is not involved in the Bousch & Lomb eye infection cases.

Zinc is common enough—it is even a dietary requirement. Humans should typically ingest between eight and eleven milligrams per day (often through red meat, nuts and grains). However, lawsuits alleging zinc toxicity of denture creams are showcasing how too much of a good thing can be harmful. A study in Neurology reports that some patients who used denture cream were exposed to at least 330 milligrams of zinc daily—far more than the maximum daily allowance of 40 milligrams. This and other studies form the basis for many of the existing denture cream lawsuits.

There are approximately eleven denture cream lawsuits filed against Glaxo Smith Kline and Proctor and Gamble for their denture cream products—Poligrip and Fixodent. The denture cream lawyers generally allege that the denture cream manufacturers failed to appropriately warn consumers about the risks of zinc toxicity. One defense is predictable—the plaintiffs did not use the product in accordance with the instructions. However, that defense lawyers' common argument - blame the victim - ignores the fact that a large portion of the denture-wearing population (34 million Americans) have somewhat ill-fitting dentures. The only way to keep them in place is a generous application of denture cream. This is common knowledge. Those people were never warned of the dangers of using denture cream beyond the instructions. From a consumer standpoint, a product that goes in your mouth must be safe to use. Who among us would think of a problem like zinc toxicity from denture cream?

So, here’s the science: zinc in denture cream is absorbed through the gums. High levels of zinc inhibit copper absorption, which can cause a copper deficiency and anemia (weakness). It can also reduce the function of the immune system. Among the more serious effects are paralysis and nerve damage. Symptoms can include numbness or tingling, and lack of balance. One plaintiff claiming injuries from denture cream, a man from east Texas, can barely walk, and only with support.

Though reducing zinc intake to normal levels can help, oftentimes the damage is not reversible, and there is no cure. Victims injured by denture cream may have extensive medical and other needs, which they cannot afford on their own. For example, they may need wheelchairs, transportation, and help working around the house or performing normal activities. Regardless, these are significant injuries that severely limit victims’ independence.

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 1st Circuit Court of Appeals wrote a helpful opinion for product liability lawyers who get the name of the defendant wrong when filing just before statute of limitations expires. The court elevated substance over form in finding the the claim "relates back" under federal law.

The case involves an incredibly tragic auto accident. A 1987 Mercedes-Benz 300SDL parked on an inclined street in Puerto Rico began rolling downhill and crushed and killed a six-month-old child. The plaintiffs' product liability lawsuit alleged that design of the Mercedes-Benz caused the child's death, alleging a "gallimaufry" of product liability theories against Daimler-Chrysler Corporation.

Continue reading ""Relates Back" Lawsuit Reinstated: New 1st Circuit Opinion" »

We can can hold hands and agree with the Drug and Device Law Blog on few things related to drug and medical device litigation but this is one: we hate Medicare liens and the government is making life even more difficult for parties on both sides of the v. As usual, they have a very complete post laying out this issue, focused on the defense lawyers' perspective but much of it applies to plaintiffs' lawyers as well.

The FDA has warned users of weight loss drug Hydroxycut to stop taking the popular weight-loss product because of risk of severe liver damage. The Hydroxycut recall focuses us all for the zillionth time on FDA’s inability to sufficiently police so much as a high school prom. But nothing is ever done about it.

The FDA is officially in the "Britney Spears Zone" for just about everyone. If they accidentally approved heroin capsules tomorrow, the New York Times and the Washington Post's editorial sections would light up for a week. Then it would be back to business as usual and nothing would change.

Our lawyers are investigating Hydroxycut recall injury claims subject to this recall for patients with liver failure or jaundice. If you want to speak with a Hydroxycut lawyer about potential lawsuits involving Hydroxycut, call 800-553-8082 or click here for a free Hydrroxycut lawsuit case evaluation.

The FDA announced that it will now require Botox and its progeny to provide black-box warning. The FDA said the labeling is necessary to warn doctors and patients that Botox has potentially fatal complications, including problems with swallowing or breathing. The FDA has identified at least 225 reports of medical problems among patients treated with Botox and similar drugs.

If there was a stock available in 2004 called "The FDA Will Eventually Require Black Box Warnings for Boxtox But It Will Take Awhile", I would have bought a ton of it. Unbelievably predictable.

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" »

New England Journal of Medicine has an editorial from doctors who support federal legislation that would give injured patients the right to sue medical device manufacturers in state courts.

Sometimes I have a case against multiple defendants where each defendant would be better served by making a stronger case against the other defendant. But, as if by Pavlovian reflex, the defense lawyers will look to find common ground and bend over backward to avoid pointing to each other to the detriment of their clients.

I think the same Pavlovian reflex causes doctors to oppose the Medical Device Safety Act of 2009 that overrules Medtronic v. Riegel. This is rooted in doctors' disdain for medical malpractice lawsuits, which leads to the reflex that anything that helps injury victims bring lawsuits is a bad thing. Because barring lawsuits against medical device manufacturers will lead many injured plaintiffs to blame their doctor, the result will be more medical malpractice lawsuits. Preemption will also undermine, as doctors writing in the New England Journal of Medicine have previously opined, the confidence that doctors and patients have in the safety of drugs and devices. If doctors cannot trust that the device manufacturers have to make products for which they will be held accountable, doctors are going to resist using medical devices that are efficacious. If Medtronic v. Riegel remains the law, it hurts patients and, ironically, medical device manufacturers.

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.

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.

This is the bill introduced in the Senate last year to overturn Medtronic v. Riegel. A similar bill was introduced in the House of Representatives about six months ago. If you look at the Senate bill, you will note that one of the cosponsors was the junior Senator from Illinois. Is President-elect Obama still with medical device victims?

In Bruce Springsteen’s song Jungleland, the police wrongfully shoot and kill the song’s hero. Yet his girlfriend just “sets out the bedroom light” and the “poets down here don’t write nothing at all.” Little did I know in high school that this song was going to relate to a mass tort medical device claim like the Medtronic defibrillator lead litigation.

Continue reading "Medtronic Lawsuit" »

An opinion was published yesterday by Medtronic MDL Judge Richard H. Kyle. The opinion ruling on Medtronic’s motion for summary judgment begins with this sentence:

The federal courts are frequently confronted with sympathetic plaintiffs who are, nevertheless, without remedy by operation of law.

This opinion in the Medtronic MDL is 37 pages long. I just finished reading the entire opinion. But you get everything you need to know in the first sentence.

This is a crushing defeat in the battle for victims of the Medtronic recall. But it is just that – a battle in what may still be a long campaign both on appeal and in Congress.

You can click here for the full opinion.

Continue reading "Medtronic Lead Cases Suffer Major Setback" »

In an article published Wednesday in the New England Journal of Medicine, the cardiologist who sounded an early alarm on the later recalled Medtronic Sprint Fidelis leads warns that a soon-to-be-approved electrical component for implantable heart devices may prove dangerous to patients.

Dr. Robert G. Hauser of the Minneapolis Heart Institute argues that manufacturers and federal regulators have not adequately tested the new defibrillator connections, or leads, for potential short-circuiting problems. Like the Medtronic Sprint Fidelis leads, this new technology is viewed by the FDA as a change of an existing product and so does not require the same degree of testing that is required for a new product.

Continue reading "New ICD Technologies" »

Wyeth v. Levine is big, obviously. I did not realize quite how big until I saw this Washington Post editorial on Election Eve of all times, arguing that the issues in Wyeth v. Levine should be decided by Congress, not the Supreme Court.

This case is not just big in the products liability lawyer world. I don't want to say the nation is watching because that would be an overstatement. But certainly this is one of the biggest products liability cases to come along in years.

In the final debate, Senator Barack Obama was asked to name a situation where he stood up to leaders of his own party. The answer Senator Obama most forcefully pointed to was his vote in 2005 for the Class Action Fairness Act (CAFA) which he described as standing up to trial lawyers. The CAFA essentially shut down state courts as a venue to hear many class action lawsuits, which has had a great deal of impact on some types of class actions.

Senator Obama is correct that this was the path less traveled by other progressive candidates. Hillary Clinton and Joe Biden both voted against the Class Action Fairness Act as did other notable Democrats such as Dick Durbin, Ted Kennedy, Pat Leahy, Barbara Boxer, and Maryland’s Attorney General at the time, Joe Curran.

Does this mean Senator Obama is in favor of tort reform? I really do not think so. He has consistently been against any kind of tort reform for medical malpractice damage caps in the Illinois legislature and in the U.S. Senate.

Moreover, it is an open question as to whether the CAFA is a bad law for lawyers who did not drink the “anything that limits plaintiffs’ rights in any way is a bad thing” Kool-Aid. Lawyers typically take a knee jerk reaction by opposing any changes in the system. (I'm probably guilty of this.) But I know that I take exception to some of these consumer lawsuits where the lawyers make a fortune and the plaintiffs only receive a free oil change and 10% off their next purchase of the Defendant’s product. While I appreciate the important deterrence effect that trial lawyers can have on bad corporate conduct, I think there is a problem when the actual victims do not get any meaningful compensation. I’m not proposing a better solution; I just have some concerns about those types of cases which I think are the kind most impacted by the CAFA.

I also disagree with the notion many have offered against the CAFA that state judges, as opposed to federal judges, are better equipped to handle consumer protection laws because they sometimes involve state, rather than federal law. First, I don’t think that there are enough consumer law cases such that state court judges would be extremely familiar with them. Moreover, I’ve spent enough time in front of federal court judges to be pretty confident that these are largely extremely smart people who can figure these kinds of things out.

Ironically, Republicans, the party of states’ rights, voted for the bill en mass. I think there are about 11 people in the country who really care less about the balance between the states and the federal government. It is a hard thing to get passionate about in 2008. A person who sings the States’ rights mantra (or federalism for that matter) quickly abandons the song when it conflicts with an issue that really matters to them.

Going back to the topic at hand, I do not blame him for taking a shot at trial lawyers: we are easy targets and most trial lawyers are going to vote for Senator Obama anyway on a host of other issues that have nothing to do with tort reform. But I think Senator Obama is going to help decrease the number of medical malpractice lawsuits the way it should be done: by fighting for changes that will decrease the number of people who are seriously injured or die each year as a result of medical malpractice - almost 100,000 malpractice related deaths a year in the country, according to the government. I also think Senator Obama will support legislation that will overturn the dreadful decision the Supreme Court made in Medtronic v. Riegel and the dreadful decision they may well make in Wyeth v. Levine.

• Clinton and Obama on Tort Reform
• Malpractice Tort Reform

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.

Interesting data from Jury Verdict Research on the median and average values of wrongful death cases where the decedent is female. The overall average compensatory award for wrongful death of an adult female over the last eight years in the United States is $2,990,032 ($1,102,976 is the median).

Age is a big variable when looking at median and average female wrongful death values. The average wrongful death verdict for a female between 18 and 24 is 2,990,032 ($1,102,976 median). For females between 30 and 39, women who are far more likely to have left behind children, the median wrongful death verdict escalates to $5,605,127 ($2,500,000 median). For women over 80, the average wrongful death verdict plummets to $1,314,241 (322,920 median).

I always find it maddening when insurance companies discount the value of human life in wrongful death cases because of the age of the decedent. If you are eighty years-old and you are killed, those last 10 years of seeing your kids as adults, your grandchildren coming of age and everything else that comes with it are incredibly valuable years. But these numbers, regrettably, demonstrate that there is some logic to their thinking when it comes to how juries value wrongful death cases.

Approximately 62% of the non motor vehicle wrongful death claims in this study are medical malpractice and wrongful death claims – particularly with older patients - so it is reasonable to assume that many of these wrongful death verdicts were compromise verdicts.

Related Posts:

How Lawyers and Insurance Companies Value Personal Injury Cases (summary and report on settlements and verdicts by injury type)

Value of Personal Injury Cases in Washington D.C. (District of Columbia settlements and verdicts)

Valuing Cases in Virginia (average settlements and verdicts in Virginia)

Personal Injury Verdicts Across the Country (personal injury verdicts in your state)

Wrongful Death Settlements and Verdicts in Maryland (wrongful death values)

Value of Wrongful Death Motor Vehicle Accident Cases in Maryland (average settlements and verdicts)

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.

The Mass Torts Blog, another defense lawyer blog brought to you from our friends at Dechert, posts on Labor Day about medical screening in mass tort cases. The allegations are basically that plaintiffs' product liability lawyers are committing fraud when screening clients. Read the post for yourself and tell me that is not a fair summary of what the post alleges.

It would be nice to have a more moderated voice coming from Dechert, a fantastic international law firm, as opposed to the the defense lawyer version of Ann Coulter. But if what the Mass Tort Blog is saying is correct - that a large number of plaintiffs who accepted settlements in the asbestos, silica, fen-phen, silicone breast implant, and welding fume litigations were fradulent, manufactured claims - where were the defense lawyers to protect the defendants from this fraud?

Obviously, it was easy to make this determination, as Cardozo Law School Professor Lester Brickman had done in his study, which was relied upon in the Mass Torts Blog post. Were defense medical examinations a condition of settlement? Did they just blindly trust the plaintiffs' lawyers? If this really is the case, shouldn't we infer that all of the defense lawyers who defended these cases committed legal malpractice?

Before a posse of drug and medical device companies form to file a lawsuit against all of these defense lawyers for legal malpractice (including, ironically, Dechert) for failure to properly defend their clients, let me save them: this contention is nonsense. The reality is that the defense lawyers sized up these cases, reviewed medical records, and made the appropriate decisions as to who should be included or excluded. The notion - that defense lawyers allow systems to exist where they just have to trust, without safeguard, the plaintiffs' lawyers and the doctors they hire to evaluate cases - lacks any foundation, notwithstanding Professor Brickman's 177 page polemic.

By the way, I wonder what Professor Brinkman’s null hypothesis was coming into this article. Does his CV give it away at all? Jury consultant David Ball suggests not presenting a case with the language of an advocate in an opening statement until you have earned the confidence of jury. On page 14 of his 177 page paper, Professor Brinkman says, “Thus, screenings coined money as surely as if the lawyers had access to the government printing press.”

I don’t think Professor Brinkman has read David Ball.

Insurance Settlements, a two volume treatise for which I am the lead author, is now available from James Publishing. This treatise is for personal injury lawyers handling auto accident, truck accident, medical malpractice and product liability cases with a lens toward getting the best possible outcome at all stages of these cases (though trial). The better title for the book - with the benefit of hindsight - would have been "Maximizing the Value of Personal Injury Cases." Maybe I can convince James Publishing to change it down the road.

I’m excited about the book. If you are interested getting a copy, click on this James Publishing link. If you have any comments on the book, please email me at ronmiller@millerandzois.com under the subject "Insurance Settlements Questions or Comments."

The Baltimore Sun reports today that a federal jury California awarded Mattel a $100 million verdict in their copyright infringement lawsuit against Bratz-maker MGA Entertainment Inc.over the rights to the popular Bratz doll franchise.

"Mattel has pursued this case first and foremost as a matter of principle," Mattel CEO Robert A. Eckert said in a statement.

Really? Yet they asked for jury for punitive damages and $1.8 million dollars. I find it amazing how these companies decry punitive damages and “shoot for the moon” plaintiffs’ lawyers until they got their shot on the left side of the v.

By the way, as a shareholder of Mattel, I don’t want them pursuing copyright claims out of principle. We are not talking about human rights here, we are talking about rights to a bunch of dolls. Just try to honestly and ethically maximize profits for me, okay? (All right, I’m not really a shareholder of Mattel. But you get the point.)

The Wall Street Journal has an editorial with an anti products liability lawyer spin. No surprise. But what is surprising is that I actually agree with it.

In light of Enron and other business collapses that left stockholders holding the bag without any real picture of the financial condition of the company, the Financial Accounting Standards Board wants to tighten standards. One requirement would make companies account for the potential cost of ongoing litigation not just with respect to attorneys’ fees but with respect to the actual value of the claims. The Wall Street Journal editorial says product liability lawyers will be able to use the information to extort settlements and influence jury verdicts.

I’m not worried about either of those outcomes no matter how many times the editorial uses the phrase "extort settlements." But I do think there is a risk of forcing a defendant to publicly estimate settlement and verdict values because I think it does tip off product liability lawyers and creates a floor for the value of any mass tort claim. I also think the editorial is correct that predicting the trajectory of long and complex litigation is inherently unscientific. Mass tort cases are like the stock market in that their values are always changing. A good trial outcome or even a good expert deposition in an MDL can increase or decrease the value of a case. Moreover, I’ve been involved with mass torts from both sides and believe knowledge of the true value of the case is rarely known even to the insiders until the advanced stages of the settlement process.

I appreciate the concerns of investors wanting to know the exposure imposed by lawsuits. I just think the downside of stacking the deck against the companies in a product defect case by requiring them to show their hands to products lawyers is not worth the tradeoff.

The Baltimore Injury Lawyer Blog has a interesting post about Baltimore City juries from the perspective of a Maryland accident lawyer.

The Wall Street Journal publishes an editorial bashing the effort in Congress to overturn the Supreme Court’s ruling in Riegel v. Medtronic. Nothing new in the editorial, just a repeat of the policy arguments Medtronic successfully advanced in Riegel.

I found the last line of the editorial of interest:

If Congress really wants to improve the quality of medical products for consumers, it would better spend its energy on reforming the bureaucratic morass that is the FDA.

No acknowledgement was made of the incredible irony of the author’s advocating an organization he calls a “bureaucratic morass” to be the last and only safety net for protection and justice for people who have suffered catastrophic life altering injuries.

In related news, Pharmalot notes that 47 state attorneys generals, former FDA commissioners, members of Congress, constitutional experts and editors of The New England Journal of Medicine have filed their own briefs arguing against preemption in Wyeth v. Levine. I'm not going to read and break these briefs down. But I'm also guess our friends at the Drug and Medical Device Blog are not going to either. But, in an upcoming post, they will break down the DRI amicus brief for the 11th time, this time including an analysis of the suit and tie color schemes worn by the 72 lawyers who wrote the brief (shocking sneak preview: they love it!).

The Wall Street Journal has a good article online about the preemption battle that is being waged the FDA's bureaucrats in the courts and in Congress. The last line of the article says that "Some drug companies are telling plaintiffs' lawyers that if they settle their cases now, they won't pay as much to the plaintiffs as they would have six months ago, before the Supreme Court announced that it would hear the Wyeth case. A lawyer negotiating a settlement with one drug maker said company executives told him it wants the 'Wyeth discount.'"

I don't think many cases are going to be settled for a "Wyeth discount" because both sides seem to think they are going to win. I cannot imagine how the court could find that there is conflict between state and federal law in drug cases because I think it is clear that federal labeling requirements create a floor for state tort claims, not a ceiling. Wyeth cannot hide behind the FDA in a warnings claim because it can give any warning that it likes. But then again, I predicted we would win Riegel v. Medtronic and we suffered an 8-1 drubbing at the hands of the Supreme Court. So I'm probably the wrong person to turn to with predictions.

The California 2nd Court of Appeals issued an interesting opinion addressing the question of just how much of a plaintiff’s personal life is fair game on cross-examination in Winfred D. v. Michelin North America.

(Random comment: Can we all use first names in cases where there are the remotest of privacy issues in question like this court does? If you are killed and your family brings a wrongful death claim or even if you are a doctor accused of medical malpractice, should someone’s Google legacy really be their name in a legal case that might include personal details? Who opposes this?)

Plaintiff in this case suffered a catastrophic brain injury when his tire split while driving a cargo van. Plaintiff’s treating doctors testified that the accident left the Plaintiff, a college graduate, with the functional skills of a 4th grader. One of his doctor’s testified that Plaintiff was “incompetent” to give testimony in that “his memory is flawed,” and he says things that he believes to be true which may not be because of his brain injury.

At the trial of this case in Los Angeles County, the trial judge allowed the Michelin’s lawyer to introduce evidence that while plaintiff was married to his first wife he married another woman without telling her he had not divorced his first wife. Then, he eventually divorced his second wife; and he thereafter had an affair with a third woman, having two children with her. The trial court ruled that this conduct was relevant to plaintiff’s credibility and the cause of the accident.

The jury returned a verdict in favor of Defendant Michelin, voting 9-3 on the breach of warranty claim. On appeal, Plaintiff’s product liability lawyers argued that the evidence admitted regarding Plaintiff’s private life should have been excluded.

The California appeals court said that Plaintiff’s lawyers’ opening statement comment that Plaintiff was “living the American dream” did not open the door, as the trial court suggested, to the fact that he was unethical in his personal or private affairs. The court concluded that because Michelin’s lawyers painted Plaintiff as a “liar, cheater, womanizer, and a man of low morals” based almost exclusively on inadmissible evidence, a new trial was warranted.

Trial courts have a lot of discretion to determine what is relevant but I think pretty clearly that the nuances of his personal relationships – however disturbing – are not fair game. I understand why and agree that the trial court should have a lot of discretion in determining what is relevant because relevancy is so fact specific. The clear downside to the frustration of lawyers is different judge’s have different rulings. I tried a case recently where the judge accused me of seeking to “try the case in a vacuum.” The problem is that one reasonable judge’s “vacuum” is another reasonable judge’s “let’s just stick to relevant facts.”

Click here for the full opinion.

A New York Times article yesterday on the Zimmer Durom Cup's problems underscores the post-market surveillance problem with drugs and medical devices, pointing to the Zimmer Durom Cup problems that have led to Zimmer recalling their hip replacement component. This is a Zimmer fault; they should have a system of tracking and honestly responding to reports of problems with their hip replacement components. But we clearly cannot expect drug and medical device companies to police themselves. In this case, the Zimmer Durom Cup recall was precipitated by Larry Dorr, an orthopedic surgeon who is the medical director of the Dorr Institute for Arthritis Research and Education in California, essentially outing Zimmer by courageously (he was well paid by Zimmer as a consultant) speaking up in public about the problems and Zimmer’s blind eye to them.

Safety and speed are the yin and yang of the regulation of drugs and medical devices. Americans want both; we want safe medical devices that have been tested, but we also want instant access to breakthrough products. But the reality is that not all new drugs and devices should be treated equally. We needed to rush new AIDS drugs onto the market without much testing 10 years ago because the risk-benefit analysis demanded it. But do we need a new anti-smoking drug like Chantix, or a new defibrillator lead that is a little thinner than the last generation (Medtronic), with such great speed? Sure, the marketing department of the drug and device companies would prefer it that way, but is that the best thing for the consumer or even the pharmaceutical company in the long run?

Adding to the problem is the Prescription Drug User Fee Act in 1992, which was a deal between the FDA and the drug industry. Drug and medical device companies agreed to pay millions of dollars in fees, and the FDA promised that drug and medical device reviews would be completed within a year for those products on the fast track.

But as I pointed out last year, all of this new FDA money was for clinical trials and other pre-market efforts. No investment was made into the post-market surveillance once the product was actually being used by consumers. While the FDA still looked at drugs and medical devices after they were put on the market, this wing of the FDA became the odd man out with respect to funding, which means it lost the best people and resources.

The Prescription Drug User Fee Act in 1992 was well intended. But we need to focus more energies and money on trying to find new funding and give more attention to these products after they are on the market. As the Times article points out, many believe that a starting point is a national database — employed by such countries as Australia, Britain, Norway and Sweden – to register these problems and require the companies to explain the reports.

For a real life example, Zimmer still sells in the United States a knee implant, known as the Unispacer, even though Australian doctors stopped using it three years ago after registry data showed it had quickly failed in more than half the 40 patients who received it there.

While a national registry and more accountability would not be a panacea, it would be a great starting place. We have 1 million hip replacements in this country each year. From an economic standpoint alone - for those of your who are not moved by human suffering - wouldn't it make sense if we monitor how well the replacements are working?

It is still early but we believe there many be a great number of claims Our lawyers are investigating Zimmer Durom Cup recall claims throughout the United States. If you believe or suspect you have received a Zimmer Durom cup component and are having problems (or are a referring lawyer), our Zimmer Durom Cup recall lawyers will review your claim. Call a Zimmer Durom Cup lawyer at 800-553-8082 or click here for a free Zimmer Duron Cup lawsuit free consultation.

While making clear to potential referring lawyers that our law firm is handling Chantix cases, I always gave Pfizer credit that Chantix did help users quit smoking, even if it did appear to cause a host of health problems to a minority of users. Now GlaxoSmithKline begs to differ.

In a study Glaxo recently commissioned, Chantix is found to be no better at helping patients quit smoking than therapeutic nicotine such as NicoDerm. Of course, Glaxo makes NicoDerm, so it has motivation to find as it did, but the results are interesting. These results were published yesterday in the August issue of Thorax.

Our lawyers continue to accept cases involving Chantix claims from those who have suffered adverse effects from Chantix. To inquire about a potential Chantix lawsuit, you can call a Chantix lawyer at 800-553-8082 or click here for an Internet consultation. For more information on Chantix lawsuits generally, click on the preceeding Chantix lawsuits link.

Since the Supreme Court’s disaster in Riegel v. Medtronic, I have been hoping and expecting Congress would step in to fix the Supreme Court’s ruling, because it was clear from the amicus briefs submitted in Riegel, from history and from common sense, that Congress did not intend to preclude medical device tort claims. Yesterday, California Congressmen Henry Waxman and New Jersey Congressman Frank Pallone, along with 62 bipartisan supporters, introduced HR 6381, the Medical Device Safety Act. This bill would effectively undo the wrong the Riegel does to medical device victims. The Senate is expected to offer a similar bill next month.

As the Wolf said in Pulp Fiction, we can’t start congratulating ourselves yet (I’m paraphrasing). This bill has not even made it out of a committee yet. But at least something is happening.

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.

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.

The New York Times yesterday reported that the FDA has announced that the oversulfated chondroitin sulfate contaminant found in Chinese-made heparin, which has officially been linked to 81 deaths and will soon be linked to a lot more, has also been found in drug supplies in Australia, Canada, China, Denmark, France, Germany, Italy, Japan, the Netherlands, New Zealand and, of course, the United States. Somewhat incredibly, the Chinese maintain that the contaminant is not responsible for the deaths caused by allergic reaction to heparin.

The Times also reported that a GAO report found that the FDA will need an additional $56 million next year to conduct inspections of foreign manufacturing facilities of pharmaceutical drugs. This is incredibly convenient for the FDA because it creates the appearance that the problem was they did not have enough money to inspect the plants. But the failure to inspect the Chinese plant stemmed from the fact that they confused the names of the plants and thought that plant had already been inspected, not a lack of resources to inspect the plant in the first place. Classic pass the buck.

The FDA is also suggesting that had they inspected the plant they still would not have uncovered the contaminant. Maybe that is so, I really don’t know, but don’t you think that had the FDA rolled in, someone in that Chinese heparin manufacturing plant might have said, “Gee, maybe we should take the oversulfated chondroitin sulfate out of the heparin.”

In the end, however, Baxter is the one responsible for a safe heparin product. What was Baxter doing to test heparin to verify its safety? As I have written time and time again, there is nothing inherently wrong with making our pharmaceutical drugs and medical devices in China because it does lead to lower prices at home. But, be it China or Kathmandu, if you are going to go further away from your product you have to put systems in place to make sure the product is being safely manufactured, particularly if it is a life saving product for vulnerable patients, like heparin.

In other news, the Maryland Daily Record reports today that American Capital Strategies Ltd., which has as a 90% interest in one of the companies involved in the chain of distribution, is a Maryland-based company. This is interesting, but I don’t think their ownership interest will pierce the corporate veil and Baxter is the deep pocket with ultimate responsibility for the safety of their heparin product. I am quoted a few times in the article about the heparin class action litigation. (I would provide the link to the article but the Daily Record takes down the article after a day or so. But, if you go to the Maryland Daily Record website today, you will be able to find it.)

A House committee this week approved legislation that would give the FDA new authority over the tobacco industry, giving the FDA the ability to regulate the sale and marketing of tobacco products such as flavored cigarettes and "light and low tar" products. A floor vote on the House of Representatives is expected soon.

Okay, the FDA is unable to inspect Chinese factories leading to the deaths of scores of people in the Baxter heparin recall debacle because it is under funded and stretched too thin. So our Supreme Court responds by making them the ultimate gatekeeper and the "great decider" as to whether drug companies are negligent (as opposed to the cute, yet silly, citizens of our country), and Congress responds by giving them even more work – regulating the behemoth this is big tobacco.

Now, incredibly, to complete the governmental insanity trifecta, we need President Bush to join in the fun. Who knew he would be the holdout? My guess is that he will find a way to oblige. He’s good like that. Maybe next week he will declare his plan that if the FDA approves a doctor – a one page Internet application by the doctor should do it - then no medical malpractice action can be brought against the doctor.

When I started practicing law, I spent most of my time defending a pharmaceutical company in AIDS/hemophilia cases, litigation involving approximately 10,000 completely innocent people who contracted HIV from the use of Factor VIII and Factor IX blood products. Regardless of how you viewed the liability of the involved drug companies, everyone agreed on the magnitude of the tragedy (which was very underreported in the media). My experience in those cases eventually lead me to becoming a plaintiffs’ lawyer because I quickly realized I would be far more energized by representing innocent victims who needed my help than large pharmaceutical companies. After I became a plaintiffs’ lawyer, I thought I would never be involved in a mass tort lawsuit with facts as tragic as the AIDS/hemophilia cases, but the gadolinium MRI contrast litigation, while on a thankfully smaller scale in terms of number of patients, is in the same league of suffering - a cruel, progressive disease that you contracted through absolutely no fault of your own.

Gadolinium is the contrast given before a MRI (or MRA, magnetic resonance angiograph, although this practice was never FDA approved) to increase the contrast of blood vessels during an MRI procedure so that the reviewing radiologist can better diagnose abnormalities. While gadolinium did improve MRI diagnostics, nephrogenic systemic fibrosis or nephrogenic fibrosing dermopathy (NSF/NFD) resulted for many patients with kidney issues who received a gadolinium contrast MRI. NSF/NFD causes thickening or tightening of the skin and connective tissues, which severely limits a patient’s ability to move, and it also causes pain, muscle weakness, scarring of internal organs and difficulty bending joints. It seems that patients’ lives are potentially at risk because of the damage to their organs, and destroyed by their inability to move. What we can all hope for is that science will move quickly forward to find ways to make this NSF/NDF more manageable.

More than 215 cases of NSF/NFD have been documented in the last decade, but despite ongoing research, the etiology of the disease was originally unknown. Now, it is clear that use of gadolinium contrasting agents in patients with kidney failure is the culprit. In June 2006, the FDA first said that NSF/NFD can be caused by the use of gadolinium contrast MRI. Last year, on May 23, 2007, the FDA asked manufacturers to include a new boxed warning with gadolinium contrast informing health care providers that patients with severe kidney insufficiency who receive gadolinium contrast are at risk for developing NSF/NFD. Additionally, the warning states that patients with liver problems are also at risk for developing NSF/NFD if they are experiencing kidney problems.

The lawsuits against the five manufacturers of Gadolinium have a simple premise: these companies knew that gadolinium is toxic and, if misused, could lead to serious injury. Accordingly, these companies should have properly designed and tested the gadolinium MRI contrast and given more consideration to vulnerabilities of the different types of patients who would be using the contrast, in this case, patients with kidney disease or renal dysfunction.

I met recently with a confirmed NSF/NFD client here in Maryland. These cases are just absolutely heartbreaking. This client I met with is a wonderful woman who was struck down in the prime of her life by NSF/NFD. Thankfully, she is in better spirits than most people you meet.

The gadolinium MRI cases around the country have been consolidated in MDL-1909 in Ohio. Our gadolinium MRI NSF/NFD attorneys are investigating these cases throughout the country. If you or a loved one has been diagnosed with NSF/NFD, call one of our lawyers for a free consultation at 800-553-8082 or click here to discuss your gadolinium MRI case via the Internet.

Alexandra D. Lahav, a law professor and editor of the Mass Tort Litigation Blog, has an interesting blog post on choice of law made by the MDL Panel in cases consolidated for discovery where the applicable law chosen may foretell the outcome of the case.

To receive certification by the MDL Panel, under Rule 23 you must have: (1) plaintiffs so numerous that joinder is impossible (numerosity); (2) class claims which present common questions of law or fact (commonality); (3) plaintiffs' claims that are typical of those of the class (typicality); and (4) plaintiffs who are adequate representatives of the putative class (adequacy).

This blog post addresses the third prong, commonality of law. In some cases, like the Michigan law at issue in Warner-Lambert v. Kent, with different statutes of limitations, the issue can be a case breaker for the plaintiffs. In MDL cases now, the MDL Panel determines which law will be applied by selecting where to send the case - wherever the case is sent, that forum's law applies. As Ms. Lahav's post points out, the MDL Panel is placed in a terrible situation when the outcome of the case is based on transfer and is already known in advance of the transfer.

Ms. Lahav's blog post, which she says will be the subject of an upcoming law review article, says the MDL panel should consider "transferring and centralizing the cases to several regional forums. I suggest two forums. Plaintiffs who filed within the regions covered by the preemption precedent would be consolidated in one court; plaintiffs who filed in the regions covered by the non-preemption precedent would be consolidated in another court. This would not lead to duplicative discovery because all the cases in region 1 would be dismissed, and all the cases in region 2 would proceed."

I do not appreciate the nuances of the law involving the seven judge MDL Panel's decision making process or the possible ramifications of Ms. Lahav's remedy. While this decision might hurt some plaintiffs who might be able to backdoor otherwise barred claims, I have to admit is appears to be a reasonably fair solution in cases where the choice of law is dispositive of the claim.

Yamaha “Rhino” All-Terrain-Vehicle (ATV) litigation has drawn the interest of our lawyers. The Yamaha Rhino ATV appears to have design defects that make the Yamaha Rhino ATV unreasonably unsafe for its occupants. The big problem with the Yamaha Rhino ATV roll is that it will rollover during turns on flat surfaces, even at low speeds, because it has a center of gravity that it too high, too top heavy, and the tires are too small for the expected uses of the vehicle.

Recognizing the problem, Yamaha agreed last summer to install doors and additional passenger handholds on all Yamaha Rhino ATVs manufactured in the last 4 years to protect passengers from a rollover, but they stopped short of issuing a recalling, or even ceasing production of the Rhino ATV.

Yamaha has also issued a new product warning label for the Yamaha Rhino ATV that acknowledges the risk of rollover accidents and alerts users that the Rhino can rollover even while being operated over flat, open areas.

I have to assume that Yamaha’s calculus is that the injuries sustained in these cases are such that the sale of the Yamaha Rhino ATVs creates revenues sufficient to sustain the legal costs, settlements and verdicts that Yamaha will undoubtedly endure. Regrettably, as we learned years ago in the Ford Pinto cases, companies with high selling and profitable products make these cost/benefit decisions all of the time, just like this one.

The reports of injuries in these cases are largely similar: slow speed turns where the Yamaha Rhino ATV rolls over and, because there are no doors to protect the passengers, people fall out of the Rhino and are crushed.

If you or someone you love has suffered a serious rollover injury or death in a Yamaha Rhino ATV, we want to help you. Our lawyers are handling Yamaha Rhino ATV rollover cases in serious injury and death cases across the country. Call us for a free consultation at 800-553-8082 or click here for a free Internet consultation.

According to a recent poll on jury duty, the answer is yes. Fifty-eight percent of those surveyed believe that a jury is fair and impartial all or most all of the time. Even more interestingly, half of those surveyed said they would expect a jury to give a fair verdict as opposed to a judge. Only 23% selected a judge over a jury (27% were unsure). In other words, by a margin of more than 2 to 1, we trust juries more than judges. Only 18% of African-Americans and 19% of Hispanics chose a judge.

Maybe our founding fathers were on to something with this whole “jury of our peers” thing. But I don’t think this is a knock on our judges. Instead, I think people would prefer to be judged by regular everyday people like themselves who are outside of the process.

In light of the recent Medtronic ruling and drug preemption cases pending before the Supreme Court, I would like to add one more question to the survey: Do you think a jury or the FDA is more likely to protect you and your family from a defectively designed pharmaceutical drug or medical device? Someone do this survey and send the results to the Supreme Court.

Thanks to the Florida Jury Selection Blog for the link to the study.

Medical device maker Stryker said last week that it will voluntarily recall the hip implant surgery products Trident PSL and Hemispherical Acetabular Cups.

This recall comes on the heels of a warning from the FDA to fix a host of long-standing problems, primarily the failure to function and poor fixation with its hip implant components and in its manufacturing of hip replacement parts. These defective Stryker products have led to numerous complaints and forced some artificial hip implant patients to have additional surgeries. In fact, the FDA told Stryker that it was aware that Stryker had received complaints about the improper fitting of hip implants that caused bone fractures in some patients three years ago.

The following Stryker products were named in the FDA investigation for containing manufacturing defects that are potentially harmful to hip and joint replacement patients:

• Hip Implants with ceramic components

• Solar Plasma Purefix HA Shoulder Stems

• Trident PSL Acetabular Shells

• Duracon Total Knee Modular Femoral Component

• Global Modular Hip Stems

• Trident PSL HA Solid Black 52 MM

• ReUnion Plasma Spray Humeral Stem

• Trident Hemispherical Cluster 50 MM

Almost all products liability cases against medical device manufacturers are design defect cases. In these Stryker Trident hip implant defects cases, the negligence appears to be in the manufacturing process rather than a problem associated with the way the Stryker products were originally designed.

It appears hard to argue that Stryker, a Michigan based company that before this news came out was having a great run of profitability, has done something wrong here. In the FDA’s letter stemming from its inspection of Stryker’s Mahwah, New Jersey manufacturing plant, complaints were that Stryker failed to correct their manufacturing procedures that led to complaints about their hip replacement products in the first place. It says one thing about Stryker when the FDA notes manufacturing deficiencies in the first place. It says quite another thing about Stryker when they fail to fix the defects that have been previously brought to their attention.

A lot of lawyers will be looking at these cases very closely to see whether there are enough injuries for a class action lawsuit against Stryker for these defective hip replacement products. Whether class litigation will be viable will depend on the number of reported injuries and the severity of those injuries.

Our lawyers are currently reviewing cases. If you want to discuss your case with one of our Stryker defective hip replacement lawyers, call us for a free consultation at 800-553-8082 or click here for a free Internet consultation.

Metro Verdicts Monthly has a graph in this month’s issue that reflects the median verdicts and settlements when the injury victim loses vision in one eye in Washington, D.C., Maryland, and Virginia. The median for the loss of vision in one eye in Maryland is $231,000. You could drive a truck through the gap between Washington, D.C. and Virginia’s median settlements in verdicts with loss of vision in one eye cases: Washington, D.C.’s median is $162,500; Virginia’s is $320,000. If you read graphs regularly, you would expect Washington, D.C. and Virginia to be reversed because Virginia as a whole typically has more conservative verdicts.

These numbers are a bit misleading I think because most loss of vision cases are products liability cases. Many products liability cases have questionable liability which decreases the average and median recoveries. If liability is not an issue, the values of these cases are much higher.

On the Maryland Lawyer Blog today, I discuss one of our products' cases against Home Depot and Chapin International involving one of Chapin's sprayers.

Today, the Supreme Court will hear argument in Riegel v. Medtronic Inc. The issue is whether the Food, Drug and Cosmetic Act forecloses state law personal injury lawsuits for injuries from the design, manufacture and labeling of a Medtronic medical device that was granted pre-market approval by the Food and Drug Administration. This case is a product defect case involving a Medtronic balloon catheter that killed the patient but, this case could have ramifications for the Medtronic lead recall lawsuits that are being filed all over the country. While technically this case focuses on a specific statutory provision, no one would be surprised if the Supreme Court’s holding provides a comprehensive framework for preemption that would apply to all drug and medical device cases.

Naturally, the Bush administration has lined up squarely behind the pharmaceutical companies. This is ironic because there is a strong presumption against preemption, particularly in cases where the issue involves the individual states’ power to protect public safety and health. The Supreme Court has consistently found that preemption of state law does not apply unless “the nature of the regulated subject matter permits no other conclusion” or “the Congress has unmistakably so ordained.” Chicago & N.W.Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317(1981) (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963)).

Preemption limits the states’ ability to protect its own citizens. The requirement that express preemption provisions be unambiguous follows this administration’s line of thinking: the states should be allowed to decide what is best for its citizens whenever possible, accordingly we should err on the side of states’ rights unless the preemption provisions are crystal clear. Yet, in this case, this administration supports usurping the states’ power even when it is clear that there is no express legislative intent for preemption.

The Bush administration is a big proponent of states rights. The President clearly believes that if the state of Kentucky finds that all of its citizens should be permitted to walk into shopping malls with AK-47s, it is all good and the federal government should just stay out of it. Yet all of this high minded capital “F” Founding Fathers and Federalism gets trumped because pharmaceutical and medical device companies do not want to be held accountable for their own negligence. The lesson, as always, is that protecting big business prevails over all, even at the expense of deeply held core values.

Plaintiffs in the Medtronic defibrillator litigation are seeking class action certification against Medtronic for their defective implantable defibrillators. Five deaths have already been attributed to broken wires in the leads of these Medtronic defibrillators. Regrettably, more are expected given that 235,000 Americans have the four Sprint Fidelis lead wires that even Medtronic concedes are failing. Medtronic estimates that four to five thousand patients with the Sprint Fidelis lead will experience a lead fracture within 30 months of implantation. (You cannot help but assume this is low.) Medtronic is asking the 235,000 people with these defective electrical leads to have their physician evaluate whether their lead has developed a fracture. Certainly, you should contact your doctor if you do not know whether you have a Medtronic defibrillator - many people do not know the brand of their defibrillator, much less details as to the component parts (although most patients have a wallet card that will specify the manufacturer of their defibrillator leads). The Sprint Fidelis leads that have been recalled have the model numbers 6949, 6948, 6931 and 6930.

Obviously, lead recalls are particularly serious given the difficulty to replace them. Should a defective Medtronic defibrillator be replaced if there is no evidence of a fracture? This is an issue that can and should be addressed with your doctor.

While Medtronic has not disclosed the precise mechanism of how these Sprint Fidelis lead fracture failures have failed, it appears that the defect is caused by the small diameter of the coil and conductors in the lead. Because of this, the lead is subject to stress damage both during and after the defibrillator is implanted. A lead fracture occurs when the conductor is critically overstressed. While only five deaths have been reported, many people are reporting repeated electrical shocks due to their lead having fractured.

Medtronic appears to be trying to do the right thing after the damage has been done. Medtronic deserves credit for this. But the problem with Medtronic and these other medical device companies selling defibrillators is that because defibrillators are so lucrative, in an effort to sell more product than the competition, companies rush out new defibrillators, supposedly technologically superior to older defibrillators, but with no proven history of safety and reliability.

Our lawyers are representing patients with these Medtronic defibrillators with defective leads not only in Maryland but around the country. Fill out this brief form if you need additional information or would like us to review you case, or call us at 800-553-8082.

You can also click here for a question and answer of the issues in the defibrillator lead recall class action.

On September 25, 2007, Topps Meat Company ordered a recall of over 21 million pounds of ground beef products. This is the third largest recall in U.S.D.A history. Reports of at least 28 cases of illness caused by suspected E. coli bacteria led to the recall. Ten persons are known to have been hospitalized in this outbreak.

Incredibly, according to an e-mail from an employee at the USDA, tests confirmed the presence of the E. coli bacteria strain O157:H7 in Topps Meat Company hamburgers on September 7th. This is the point where they knew for sure there was a problem. Yet they waited another 17 days to recall this meat.

The ground beef products being recalled have a "sell by date" or a "best if used by date" between September 25, 2007, and September 25, 2008. All these recalled Topps Meat Company products will have a U.S. Department of Agriculture establishment number of EST 9748. Topps Meat has asked that consumers who find the products at home cut off the UPC code and return it to Topps for a full refund, then dispose of the product immediately. In Topps’ defense, it is worth noting that they have seemed to handle this well, at least as of September 25, 2007. But there is still a great deal of investigating that needs to be done to determine who knew what and when.

E. coli bacteria is found in the intestines of both humans and animals. E. coli contamination can occur with negligent food preparation. Symptoms of E. coli exposure usually begin within a few days of exposure and can last for up to ten days. Symptoms include diarrhea with or without blood, severe stomach cramps, and fever. Some exposures to E. coli can lead to kidney failure and death.

Speaking of the perils of the exposure of children to lead based paint, Mattel has announced its second recall in the last two weeks, this time of more than 9 million "made in China" toys because of injury and health risks posed by lead paint and reports of choking and intestinal damage that can occur from children swallowing the small magnets on some of these toys. The recall is the second initiated by Mattel in the last two weeks, and both recalls involve toys that were made in China. They are:

"Sarge" Die-Cast Toy Cars (from the Pixar movie “Cars”)

Batman Magnetic Action Figure Sets

With respect to the "Sarge" Die-Cast Toy Cars, it is worth nothing that the cars marked “Thailand” are not included in the recall. Chinese manufacturing and the acceptance of their goods here is taking yet another tumble. Apparently, days after Mattel identified his company as the manufacturer most implicated in the recall, the owner of the Chinese toy factory committed suicide.

While the risks associated with exposure to lead paint are extraordinary, these toys are likely not leading to the kind of exposure that would cause even mild brain injury. Mattel is appropriately being extra cautious on this front. But with respect to the magnets' risk, the fears are even more well-founded. In 2006, there was a similar recall for 3.8 million "Magnetix" sets. The sets consisted of tiny magnets that, if swallowed, caused intestinal perforation that can cause serious injury or death. There were 34 reported incidents involving the magnets, including one death and four serious injuries. As I wrote in my blog last year, this probably represents 3400 incidents because of underreporting. Before this recall, a 20-month-old boy tragically died after he swallowed pieces of a magnet that twisted his small intestine and created a blockage.

With pet food, toothpaste, seafood, and toys, this has been a bad year for Chinese manufacturers with respect to their credibility with the American public. These products are certainly cheap. The question now is are they safe?

GlaxoSmithKline's stock price has fallen approximately 10% since a study published in the New England Journal of Medicine in May showed an increased risk of heart attack and other adverse cardiac events for patients taking the diabetes drug Avandia. Now shareholders are fighting back. A class action lawsuit has been filed against GlaxoSmithKline in the US claiming the company issued a series of "false and misleading statements" regarding Avandia, the group's blockbuster diabetes drug.

Avandia is still on the market, pending further research. The FDA has said it will issue a "black box" warning on Avandia,which means that studies indicate the drug carries a significant risk of serious or even life-threatening adverse effects. This warning and the media frenzy around Avandia is going to decrease sales and, of course, declining profits. This lawsuit alleges that Glaxo not only ignored its duty to Avandia users, it also ignored Glaxo shareholders.

The Insurance Journal reported today on an Insurance Institute for Highway Safety study that found that General Motors' vehicles had both the highest and lowest death rates in the period between 2002 and 2005. Chevrolet Blazers built from 2001 to 2004 had 232 driver deaths per million registered vehicles during the four-year span, the highest of any vehicle. The Acura RSX had the second-highest rate with 202 driver deaths followed by the Nissan 350Z, which registered 193 deaths. The rate represents the reported number of driver deaths divided by the model's number of registered years.

In contrast, the Chevrolet Astro minivan had the lowest rate with only seven deaths per million registered vehicles. It was followed by the Infiniti G35, BMW 7 Series and the Toyota 4Runner. Ironically, Chevy no longer makes the Blazer or the Astro.

My guess is that the Chevy Astro is not 33 times safer than a Chevy Blazer. Certainly, the demographics in terms of risk taking behaviors are different for the purchaser of a mini van than a sporty SUV because the study did not consider driver behavior or how the vehicles are used. Still, there are still meaningful conclusions that can be drawn from this study about which vehicles are the safest and least save to drive. The profile on the driver a Chevy Blazers cannot be that different from the drivers of Toyota 4-Runners.

The good news is they are making cars safer than they used to make them. These rates have gone down about 30 percent since the mid-1990s. The study also confirms our lawyers' experience that heavier vehicles such as SUVs and pickups have lower death rates. The message here underscores a theme I have discussed before on the Maryland Personal Injury Lawyer Blog: for all of the shouting about the need to decrease our dependence on foreign oil - which I agree with completely - the death toll on our highways will increase if we become a nation of Yugo drivers.

The New York Times reported today that Ford is recalling more than 500,000 Escape sport-utility vehicles after 50 reports of engine fires caused by corroded brakes. Ford notified dealers of the recall this week for Escapes, covering the 2001 to 2004 model years. Ford will also contact the truck owners directly in the near future. The decision follows a National Highway Traffic Safety Administration investigation last year. The recall impacts only conventional gasoline-powered Escapes.

Ford surely does not enjoy fire being associated with its vehicles. Although time has erased most of the taint, Ford has an unpleasant history with its vehicles and fires. In the early 70s, it became clear that the Ford Pinto's design made the care susceptible to leakage and fire in moderate and even low speed rear end collisions (rear end auto accidents the most common type of vehicle accident). In April, 1974, the Center for Auto Safety petitioned the National Highway Traffic Safety Administration to recall Ford Pintos due to this defect. It took over four years and a ridiculous number of wrongful death and catastrophic injury lawsuits - including a $125 million punitive damage award that was later reduced - before Ford agreed to recall the 1.5 million Ford Pinto that were still on the market.

Ford also had a more recent brush with engine fires when 3.8 million Ford vehicles were recalled for engine fires just a few years ago.

The impression I have is that the risk associated with these fires pale in comparison to the risk associated with the Ford Pinto. Accordingly, I do not think that products liability lawyers in Maryland should expect to see a lot of cases. Still, when you are talking about fire and cars, there is always risk. If you have an Escape implicated in the recall, you should contact your Ford dealer immediately. If the engine of your Escape has caught fire and you have been injured, you should call a plaintiffs' products liability lawyer to investigate your case.

The New York Times reported on Saturday that Genentech posted a letter on its Web site warning eye specialists of its new eye drug Lucentis, which may increase the risk of stroke for those on Lucentis. Genentech found that patients taking their marketed dose of Lucentis were much more likely to suffer a stroke than patients taking a lower dose.

Some doctors remain undeterred. “Right now, it will have no impact on my use of Lucentis,” a doctor at the Palmer Eye Institute of the University of Miami, wrote to the New York Times in an e-mail message. “When given a choice between a high likelihood of blindness or a 1 percent risk of stroke, I think most patients will choose their vision.”

I don't know enough about Lucentis to say whether I think this doctor is correct. The problem is, I don't think Lucentis' manufacturer knows either.

A Philadelphia jury found that Wyeth's hormone replacement therapy Prempro was the cause of an Arkansas woman's breast cancer and awarded the victim's family $1.5 million. The jury found that Wyeth was negligent in failing to provide adequate warnings about the risk of breast cancer associated with the use of Prempro.

The jury is expected to return this week with a decision on punitive damages. In Maryland, under Owens-Illinois, Inc. v. Zenobia, 325 Md. 420 (1992), a landmark Maryland Court of Appeals' opinion, punitive damages in this case against Wyeth for failing to warn about the risks of Prempro would have to be supported by a showing that the conduct of Wyeth was malicious, or the result of evil motive, or ill will. There are no such allegations in the Prempro litigation.

Last week, I wrote about the Consumer Reports article on failed infant car seats. As I wrote the post, my wife was spending a few hundred dollars on new car seats for our 3 month-old twins. Sure enough, Consumer Reports retracted the article this week after receiving data from the National Highway Traffic Safety Administration who reported the car seats did quite well at the correct impact speed.

In their tests, Consumer Reports simulated impacts at more than 70 miles an hour when they were supposed to simulate an impact at 38 miles an hour. At the time, I thought it was probably silly to buy new car seats particularly given the data that was offered on the side impact risk to infants. But how can you argue against taking the safest possible course for your kids? You can’t. Now, if you are a lawyer out there considering a class action against Consumer Reports, you have your first client. I'm kidding, that would be a completely frivolous lawsuit, in my opinion. But do not be surprised to see one.

Speaking of frivolous lawsuits, a personal injury attorney announced in news conference in California that the he was filing a wrongful death case on behalf of the family of a 28 year-old woman who died in a water drinking contest on a radio show. The attorney said the wrongful death suit would name the radio station as the defendant, presumably for holding the contest in the first place. I do not think this is a meritorious case nor do I think it helps the cause of personal injury lawyers and their clients. I will offer more thoughts on this case this weekend.

A New Jersey appellate court reinstated a lawsuit seeking to force Merck to fund a medical monitoring program for former patients on Vioxx. The screenings are to detect potential heart problems caused by Vioxx. According to the ruling, the decision to dismiss the case was "premature" and did not allow plaintiffs the opportunity to prove legally accepted claims.

You might think that Merck might accept some responsibility for this debacle and support the idea of a medical monitoring program for people who want to get medical attention to make certain they were not injured by Vioxx. Apparently not.

Consumer Reports announced today that car seats for infants often fail to withstand the impact of auto accidents when a car is struck by another from the side. Of the models tested in simulations of such impacts, ten failed, some “disastrously,” according to the magazine's February issue.

The car seats are rear-facing models that are required in Maryland for infants up to 1 year old or about 22 pounds. Car seat manufacturers are required to test the seats for head-on accidents, but not for broadside crashes, which kill about 30 infants a year in the United States.

As I write this post, my wife is out purchasing new car seats for our almost three month-twins as I expect are a lot other people in Maryland and around the country today. The irony of all of this is that I love Consumer Reports, to the point where I rarely buy anything other than their top rated product. The car seats we have now are made by Britax, a product that Consumer Reports had previously rated, you guess it, number #1. Britax also failed the test.

Over 60,000 Chrysler vehicles are being recalled to reprogram a brake system computer whose defects may lead to an inability to control the car. Chrysler says the failure occurs when the instrument panel warning lamps illuminate, followed by the loss of various controls in some cars. No accidents or injuries have yet been reported. Moral of the story: if you are driving a Chrysler and the panel warning lamps illuminate, don’t keep driving your car.

I do not have a lot of information to go on but it sounds like Chrysler is doing the right thing here by catching this wave before it really breaks. Plaintiffs' personal injury lawyers have an obligation to point out not only what big companies are doing wrong but what they are doing right. The knock on personal injury lawyers has always been the "for a man with a hammer, everything looks like a nail." I hope the Maryland Personal Injury Lawyer Blog fights hard to avoid the assumption that every big business and insurance companies are the nail to our hammer in every case. In this instance, Chrysler appears to have done the right thing.

A number of class action personal injury lawyers expect that 500 to 700 people will seek damages for a rare fungal infection linked to a Bausch & Lomb contact lens solution. According to the Centers for Disease Control, of the 180 reported infections, 59 of them required cornea transplants.

I wear contacts and, thinking it was nothing, I continued to use the Bausch & Lomb solution even after I heard about the possible contamination. In hindsight, this was incredibly stupid; a cornea transplant is a serious thing that no one wants. Still, I do not think this litigation is going anywhere beyond those who required cornea transplants. I expect these claims will be resolved quickly with Bausch & Lomb overpaying for them just to resolve the cases and move forward.

A Tennessee man's product liability claim against Merck, maker of the withdrawn painkiller Vioxx, was rejected today by a federal jury in New Orleans. This is the fourth victory for Merck in five federal trials.

After Texas attorney Mark Lanier's $253 million verdict in August last year, Merck stock fell with the expectation that more huge verdicts were in store. Now the pendulum has swung the other way and Vioxx plaintiffs' lawyers think the sky is falling. The real answer lies in the middle: Vioxx cases have value but most are going to lose on causation.

This New Orleans jury found that Merck did not have a duty to warn. But I think the weakness of Plaintiff's case may have turned the jury to the point where they saw everything through Merck's lens. I don't blame them. In closing, Plaintiff's lawyer admitted his client had other risk factors for his heart attack, including tobacco use, high blood pressure, high cholesterol, diabetes and . . . drum roll please . . . cocaine use. What were the chances of this guy not having a heart attack?

Merck can sit back and enjoy another victory. But there is a reason why Merck is spending $1 million a day on legal expenses. There are still a lot of viable causation cases out there and Merck's handling of Vioxx can inflame jurors as we found out last year in Texas.

As of September 2, 2007, according to the Federal Motor Vehicle Safety Standard (FMVSS) 208, all new cars must be equipped with lap & shoulder seatbelts. This is part of a three-year phase out, which began in 2004, of the lap belt-only arrangement that can be found in the rear seat of many vehicles. The federal government passed this amendment to help reduce the number of serious injuries suffered by the occupants using lap belts (usually children).

A lap belt secures only the lower body during an automobile accident. Left vulnerable are the neck, back, and spinal cord. Injuries usually occur when the body is thrown forward at the waist, known as “jackknifing.” In fact, if the impact is severe enough, the spine can be pulled apart or crushed against the lap belt.

It is disconcerting that it took this long for these dangerous belts to be eliminated from motor vehicles. In June 1986, General Motors, admitted in a press release that studies had confirmed that lap-shoulder belts offered the best protection. This was ten years ago. Meanwhile, the majority of the vehicles on the road will continue to have this dangerous lap belt in the backseat. Hopefully, most parents have heard about the danger of these seatbelts and choose to put their children in lap and shoulder harness belts only. For most soccer mom, all-American type families, I'm sure this is mostly true. These folks are typically buying new or close to new cars with all of the modern accessories and are educated about the risks their children face in cars generally, and specifically with respect to lap belts. But I worry about the single parent of limited education, fighting to make ends meet who is unaware of the risks or cannot afford to have the car retrofitted. With all due respect to General Motors who I think is otherwise a fine company, couldn't they have saved lives and avoided these problems by doing the right thing 10 years ago?

A federal jury in New Orleans found that Merck's Vioxx was not responsible for a heart attack suffered by a Utah man. Merck had won two previous federal cases and lost the third. In state court it has won three and lost three. Jurors decided a fourth in Merck's favor, but the judge later ordered a retrial.

Plaintiff's lawyers had thought this trial was one of the better Vioxx cases. But, as often happens, the trial uncovered some interesting new evidence on cross-examination by Merck's lawyer: the Plaintiff realized he had not taken Vioxx for several days before his heart attack on July 25, 2003.

Rather than focusing on other reasons that likely caused Mason to have a heart attack -- his age, his sex, a relative who had a heart attack -- Merck's lawyer Phil Beck, an extremely good lawyer, focused his closing argument on the four days without Vioxx. "Vioxx cannot cause a heart attack if it is not in the system," he said. "Vioxx is out of the system in a few days. Once it's out of the system, it cannot have any effect."

As I have said all along, plaintiffs are going to lose most of these cases on specific causation. General causation is hard to dispute - the evidence is overwhelming that this was a bad drug and Merck covered up the risks associated with Vioxx. But the trick for plaintiff is to show that the harm was actually caused in an individual case.

Merck lawyers are seeking bank and cell phone records that may shed more light on a juror's financial relationship with a Texas plaintiff who was awarded $32 million against Merck for death of a 71-year-old man who took Vioxx. One juror apparently borrowed $10,000 interest free from the decedent's widow (the plaintiff in the Vioxx case). The juror said the loans included $2,500 that was paid off just weeks before he was selected as a juror in the case. The juror also produced cell phone records that showed calls by him to the plaintiff.

Last month, I wrote a couple of blog posts (click here and here) deriding the defendant doctor's medical malpractice lawyers for going after jurors financial disclosures and prior claims history after an adverse verdict. But this is completely different. A loan and telephone calls to the plaintiff just after he was selected for jury duty, these are the classic juror misconduct issues. Even a mere acquittance with the plaintiff is something that should be revealed during the voir dire practice. Regrettably, if these allegations hold up, I will agree with the trial judge if he choses to void the judgment against Merck and declare a mistrial.

Newday reports that Roseart Industries is voluntarily recalling of 3.8 million toys that were marketed to children three years of age and older. Roseart says consumers can return the toys in exchange for replacement toys for older children. The U.S. Consumer Product Safety Commission had collected reports of 34 incidents involving the toy, including the death of a 20-month-old child who tragically swallowed magnets from the toy. There was also a three-year-old boy who required surgery after swallowing the magnetic part of the toy.

Those 34 complaints probably represent 3400 or more incidents because the reporting rate to the Product Safety Commission is so low. There is no question that companies like Roseart have a duty to make their products safe. But we as parents also have a duty to report unsafe toys to the Product Safety Commission so that other children are not put at risk.