Articles Posted in Products Liability

In the United States alone, approximately 581,000 knee replacement surgeries are performed each year. Getting a knee replacement is a big deal: if you need a replacement, you have really run out of options with the knee problems that you are having. So knee replacement surgery is the last line of defense for patients suffering from extensive fractures, arthritis and/or osteoarthritis.

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The history of “bad cholesterol” has had a checkered past. Bayer’s cholesterol-reducing blockbuster Baycol allegedly caused over 100 deaths. Bayer paid over $1 billion to settle the Baycol cases.

Now come Crestor and Zocor, two more widely prescribed prescription-strength drugs designed to lower “bad cholesterol”. Both drugs allegedly cause serious muscle and kidney problems, including the potentially fatal, muscle-destroying condition rhabdomyolysis. This blog post focuses on Zocor.

Zocor (simvastatin) is a statin drug used to treat a condition known as hypercholesterolemia (better known as high cholesterol) in people at risk of developing coronary artery disease.zocor lawsuits
Statins block the ability of the liver to produce cholesterol so that the body takes any cholesterol it needs from food. It all sounds good in theory.

Zocor’s big competitive advantage in the cholesterol drug wars? It was cheaper. A lot cheaper. The old, “you get what you pay for” cliché rarely applies to drugs. The price is usually arrived at through an amalgamation of factors that don’t involve comparative efficacy. But in this case, it might hold up: at least one study has found that 80mg of Zocor was not as effective at reducing heart risks compared to the same dose of Lipitor.

But let’s get back to the point. In 2010, 2.1 million people in the United States were prescribed Zocor at a dose of 80mg. This dosage is particularly effective, because it lowers LDL cholesterol by an additional 6% versus a 40mg dose. More drugs, more cholesterol reduction. This makes sense. Continue reading

Almost two years ago now, Medicaid/Medicare liens became even more difficult to deal with as the law pushed to the lawyers and insurance companies the obligation of confirmation and resolution of Medicare/Medicaid liens. I’m sure betting an insurance company has yet to receive a fine for not verifying a lien before paying a personal injury settlement. But nobody wants to be the first.medicare lien law

Medicare, Medicaid and State Children’s Health Insurance Program Extension Act of 2007 created so many headaches people starting fighting back. In Haro v. Sebelius, an Arizona case in U.S. District Court, Medicare beneficiaries (and, interestingly, a personal injury lawyer in his own capacity) challenged – as a class – two things: (1) Can Medicare/Medicaid (hereinafter “Medicare because I’m sick of the slash) “require prepayment of a reimbursement claim before the correct amount is administratively determined where the beneficiary either appeals or seeks a waiver of the MSP reimbursement claim?, and (2) Are personal injury lawyers financially responsible for reimbursement if they do not hold or immediately turn over to Medicare their clients’ personal injury settlement awards.

Personal injury lawyers are completely in a pickle on these liens. Our clients want their money; we want to get them the money they are entitled to get. The question is whether personal injury attorneys are precluded from giving the clients their settlement money until after Medicare’s claim has been satisfied, and, let’s be honest, whether Medicare can recover the reimbursement claim directly from the attorney if the client cannot pay the reimbursement claim after the settlement money has been turned over to the client.

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leg injury verdictsJury Verdict Research published data on verdicts in severe leg injury cases over the 10 years prior to October 2010. By severe, I mean severe: crush injuries and amputations. For injuries to one or both legs, and leg injuries resulting in varying degrees of leg amputations, the statistics are:

INJURY AVERAGE MEDIAN
One or Both Legs $4,000,000 $2,400,000

The average verdict in these cases is approximately $4,000,000 and the median verdict is $2,400,000 for injuries to one or both legs, and leg injuries resulting in varying degrees of leg amputations.

The leg amputation categories include both traumatic and surgical amputations. The relatively insignificant difference surprised me between above the knee and below the knee amputations:

INJURY AVERAGE MEDIAN
Above the knee $3,958,003 $2,588,649
Below the knee $4,930,186 $3,727,500
Bilateral Amputation $13,392,589 $5,012,500

As you can see, the median for bilateral amputations is a statistically insignificant difference from a single above the knee amputation.

This is interesting data and useful to use in negotiating your case. But asking the numbers to make sense is asking too much.

The Maryland Daily Record has an article today by Lawyers USA writer Sylvia Hsieh on the expected wave of lawsuits involving Darvocet and Darvon. The gist of the article is that this is the next big thing: “Plaintiffs’ personal injury attorneys are gearing up to start an onslaught of litigation against makers of the popular painkillers Darvon and Darvocet.”

There is no question there will be a lot of lawsuits with very good cases. We are looking at Darvocet/Darvon cases and have a webpage devoted to these claims. But I really do not think this is the next big mass tort. I think there will be a small number of good cases and a lot of cases that go nowhere.

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The Insurance Journal reports a rise in legal malpractice claims. Incredibly, there has been no hand wringing about increased malpractice rates for lawyers or fears that lawyers can no longer keep their practices open as their insurance rates rise. We have never had a legal malpractice claim yet our rates continue to increase. No one cries for us.

A part of the rise in the number of legal malpractice claims is countersuits against lawyers who are suing their clients to pay their bills. But I think the larger problem is what the article calls “door law,” a phrase I have never heard before but I like. Door law is when lawyers take any client who walks through the door who might generate a fee. When law firms step outside their areas of expertise, bad things will happen. Continue reading

A woman injured in a car accident filed a lawsuit against Four Loko, the makers of the controversial drink that combines alcohol and caffeine. The lawsuit against Four Loco claims that the driver of the car the woman was in had Four Loko before the car accident that injured the Plaintiff. The lawsuit names the driver (presumably the woman’s friend), Four Loko’s manufacturer, and even drags in the convenience store that sold the Four Loko. (The great, great-grandson of the first man to combine rum and coke was not named.)four loko lawsuit

I am assuming the lawsuit stems from the FDA’s warning last week that Four Loko and other caffeine-alcohol drink manufacturers have used caffeine as an unsafe food additive in the drinks. The FDA left the door open for further action.

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The South Carolina Supreme Court overturned a $31 million verdict in a Ford rollover case stemming from a catastrophic accident in 2001 that caused brain damage to a 12-year-old boy. This was a hard case. A mother was driving with four children who were not wearing seat belts and the mother took her eyes off the road and swerved to get back on the road. The question was whether the design of the Ford Bronco was a substantial contributing cause to the child’s injuries.

Obviously, a jury found that it was and sent a powerful message to Ford: $16 million in actual damages and $15 million in punitive damages.ford rollover case

The South Carolina Supreme Court overturned the verdict for a lot of reasons. I won’t go into all of them but there are two reasons set forth for the court’s reversal that I think are of particular interest.

First, the court found that it is improper for lawyers in closing arguments “to arouse passion or prejudice.” The court cites these statements made during the plaintiff’s lawyer’s closing argument as improper:

1. “This is how Ford looks at this. That little bit of thirty people being killed every year didn’t matter. Those thirty people, those thirty extra people getting killed in a year didn’t matter to them because it was just a little bitty number.”

2. “It does matter about those people getting killed. Those thirty people do count. Those thirty people–that’s thirty more people that got killed that year. If you expect these vehicles to last about twenty years, that’s six hundred more people getting killed using this vehicle as opposed to a Chevy S-10 Blazer. That’s serious.”

3. “And that doesn’t count the paralyzed people, the quadriplegics, the people with serious injuries, the thousands of people that have been in these events because of this rollover propensity of this vehicle that they knew about, and they knew it since day one but they chose profit over safety every time because they looked at it as numbers. They didn’t look at it as lives, as people.”

4. “I submit to you that the evidence is that they did it because they thought it was a little, small number. . . . [T]hey did not look at it as thirty lives a year[], they didn’t look at it as six hundred lives. That’s how they should have looked at it, but that was not how they did it.”

5. “They got together at the highest levels of Ford Motor Company and they made a judgment that rather than delaying and improving the Bronco II, they were going to sell the vehicle as it was and that they were going to risk people’s lives and they were going to risk serious injuries like we have here today. They were going to risk people’s brains.”

6. “Jesse Branham is here today with a brain injury and six hundred other people, or however many it is, lost their lives, and numerous others have brain injuries or are paralyzed, quadriplegic, have extremely serious injuries. We believe that you should tell Ford Motor Company what you think about this kind of thing.”

The court found these improper because they relied on evidence that was inadmissible, because it asked for damages for harm to others, and because it improperly inspired the jury to act on passion as opposed to reason. These arguments are flawed.

If the evidence is inadmissible, then that is the basis to overturn the verdict. There is no need to tie it to an improper closing. Presumably, this would be true where evidence was inadmissible.

The court believes these statements led to asking for damages for harm to others. But the attorney is asking for punitive damages. We don’t have punitive damages in Maryland without proof of actual malice – which eliminates 99.999% of cases like this from being considered for punitive damages. But if you are asking for punitive damages, give the context of why there was a risk of harm to more than just the plaintiff. (Plaintiff’s lawyer also got into evidence the salaries of certain executives at Ford which sounds incredible. But, again, our law firm has never handled a punitive damages case so I really can’t speak to the standard for admissibility in these cases.) Continue reading

The first line in this editorial adequately summarizes the problem that leads to unsafe drugs and medical devices:

What would your reaction be if the results of a football match were reported as 5:0 by one of the teams and as 3:1 by the other team?

This editorial underscores a point that I think the “FDA approval is the gold standard” crew completely ignores: it is painfully easy to rig drug testing to get the desired results at any stage of the research and testing process. Most of the injuries were at the end of the study? Change the endpoint. Most of the adverse effects were in patients with blonde hair? Take them out of the study.drug research safety

A woman has sued Starbucks for serving “unreasonably hot” tea, causing her second degree burns. Reuters has the article which includes reader comments. All of the commentators are rushing to judgment, claiming either the woman is pond scum (95%) or that Starbucks was “clearly negligent.” Adding to the fun, the Plaintiff does not have a European name. So we get bonus racism and xenophobia besides the inaccurate conclusions of law. It is a win-win situation for all.

Gun to my head, I suspect this is not a legitimate claim. But who knows? Did Starbucks know or have reason to know that it was serving a liquid that was muchstarbucks hot tea lawsuit hotter than industry standards require?

The immediate rush to judgment (people, didn’t Johnnie Cochran teach us anything?) and people’s abilities to make breathtaking leaps of logic/faith with absolutely no evidence is always disconcerting.

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