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Leading the NewsFirst contested bellwether case in Chinese drywall litigation to be heard this week.The New Orleans Times-Picayune (3/14, Mowbray) reported on Tatum and Charlene Hernandez of Mandeville, LA, whose Chinese drywall suit will be heard this week in the first contested "test case in the Chinese-Manufactured Drywall Products Liability Litigation" before Judge Eldon Fallon in New Orleans. "While the Hernandez case doesn't have any direct legal influence on the other cases, what the court decides about what needs to be done to fix the Hernandez home and how much it will cost to make those repairs could help establish values that will guide settlement discussions in the rest of the cases." What Judge Fallon "decides is potentially influential outside of the court proceedings, too," as his "determinations...could end up becoming the de facto standard" for remediation efforts. McClatchy (3/14, Marsteller) reported, "The trial's primary goal 'is to get a remediation protocol to guide future litigants,' said Scott Weinstein, a Fort Myers attorney who is on the plaintiff's steering committee in the consolidated proceeding, but is not directly involved in the Hernandez case." While "public attention will be focused on U.S. District Judge Eldon Fallon's final decision in Hernandez, it's the pre-trial legal maneuvering -- especially over expert witnesses -- that could have a greater impact on later cases," said John Rainn, an adjunct professor of construction law at Stetson University College of Law. "Attorneys on both sides in the Hernandez suit already are challenging the other side's experts, court records show." Fallon profiled. The Palm Beach (FL) Post (3/14, Ross) reported, "In the complex, ongoing mess created by defective, sulfur gas-emitting drywall, U.S. District Judge Eldon E. Fallon is regarded by many homeowners as the best hope for providing solutions." The judge "with the soft Southern drawl and penchant for courtroom civility and deadlines is the man whose rulings could set standards on fixing affected homes and determining the extent of damage the wallboard has caused." Florida Sen. Bennett introduces bill which might limit ability to sue over Chinese drywall. The Bradenton (FL) Herald (3/13, Kennedy) reported that Florida state Sen. Mike Bennett "has filed a bill that could limit a homeowner's or condo association's ability to sue over defective drywall, according to attorneys representing those dealing with contaminated property." Senate Bill 2196 "would prohibit, under certain circumstances, legal action in connection with damage to property arising from use of 'reactive drywall,' or from repairs necessitated by it, according to its text." Bennett says that "the bill is still in draft form and that he does not plan to advance it the way it is worded now." Florida builder claiming inability to pay for remediation recently went on land-buying spree, records show. The Sarasota (FL) Herald Tribune (3/15, Kessler) reported, "Bradenton-based Medallion Homes has been at odds with the owners of at least a half-dozen houses it built using contaminated Chinese drywall." Several "weeks ago, the builder's attorney, Alan Tannenbaum, commented for the first time -- saying the reason Medallion is not repairing the affected homes is simply that it does not have the money to do so." But "state and county records reviewed by the Herald-Tribune" show that "Medallion and its associated entities have recently engaged in some of the largest land acquisitions in the Sarasota-Bradenton area, spending millions of dollars to buy up everything from lots to entire subdivisions." Louisiana home builders say state should create application process for Chinese drywall relief. The Baton Rouge Advocate (3/14, Griggs) reported, "No one is sure what if any process state or federal regulators will approve to fix problems many homeowners are having with Chinese drywall, when a fix might happen or who would pay for it. But the Louisiana Home Builders Association" says that "the state should establish an application process" so that "when a remediation method is approved and if money is made available, homeowners won't face additional delays before getting help." In the meantime, "everyone is waiting on the scientists under the Interagency Task Force on Chinese Drywall to figure out what exactly in the drywall is causing all the problems."
Civil Justice SystemPersonal injury recoveries climb in 2009's "Top 100 Verdicts" list.The National Law Journal (3/15, Qualters) reports, "Judging by the recoveries that National Law Journal affiliate VerdictSearch counted among its Top 100 Verdicts of 2009," commercial verdicts fell last year. "A bright spot for plaintiffs attorneys was personal injury causes of action. Medical malpractice awards jumped from $321 million to $509.2 million; motor vehicle verdicts hit $738.9 million (up from $470 million); and products liability jumped to $1.1 billion from $458 million the year before."
Classmates.com settles marketing class-action for $9.5M.In the "TechFlash" blog at the Puget Sound (WA) Business Journal (3/13), Todd Bishop wrote, "Seattle-based Classmates.com has agreed to pay up to $9.5 million to its users to settle a lawsuit that accused the social network of sending emails that made people believe their old friends from high school were reaching out to connect -- only to discover, after paying for a membership, that their long-lost buddies were nowhere to be found. The proposed settlement, filed yesterday in U.S. District Court in Seattle, would designate $3 in cash for every Classmates.com member (dating back to Jan. 1, 2007) who upgraded to a 'gold' membership on the site after receiving an email suggesting that they pay for premium access to see who had signed their online guestbooks. Documents filed in the case estimate that as many as 3.16 million people in the United States would be eligible for the payout." New Jersey SC Civil Practice Committee releases proposed rule changes.The New Jersey Law Journal (3/12, Gottlieb) reported, "The state Supreme Court Civil Practice Committee has published its 2010 report of proposed rule changes: a 169-page compendium of suggestions for fixing inefficiencies and injustices identified by practitioners or judges. It also summarizes ideas shot down or tabled, explaining why a proposed cure might have no impact or might be worse than the alleged disease." Ways to defeat Daubert challenges discussed.In an op-ed in the Legal Intelligencer (3/12), Jim Ronca of Anapol Schwartz Weiss Cohan Feldman & Smalley discusses how lawyers can prepare their cases "in a fashion that deflates or defeats [a] Daubert challenge before it is even filed." Ronca comments, "Before even getting involved in the case, research the medicine extensively and consult with a good epidemiologist (one who does not simply say what you want to hear)." He adds, "Have the expert do a comprehensive systematic literature search for relevant studies." CongressHouse Democrats look for final votes to pass Senate healthcare reform bill.As momentum builds toward a healthcare reform vote in the House, many news agencies are analyzing whether Democrats will have enough votes to pass the legislation. The AP (3/15, Quaid) reports that Rep. James Clyburn (D-SC), "the House's chief Democratic headcounter, said Sunday he hadn't rounded up enough votes to pass President Barack Obama's healthcare overhaul heading into a make-or-break week, even as [David Axelrod,] the White House's top political adviser said he was 'absolutely confident' in its prospects." Meanwhile, the Obama Administration "gave signs of retreating on its demands that senators jettison special home-state deals sought by individual lawmakers that have angered the public." Drug SafetyUS court rules thimerosal does not cause autism.The New York Times (3/13, A11, McNeil) reported, "In a further blow to the antivaccine movement, three judges ruled Friday in three separate cases that thimerosal, a preservative containing mercury, does not cause autism." The rulings "are the second step in the Omnibus Autism Proceeding begun in 2002 in the United States Court of Federal Claims," which "combines the cases of 5,000 families with autistic children seeking compensation from the federal vaccine injury fund." The fund pays "families of children hurt by vaccines," but it "has never accepted that vaccines cause autism." The Los Angeles Times (3/13, Maugh, Zajac) reported, "The cases that three judges, called special masters, chose to rule on as test cases were considered among the strongest, so the outlook appears grim for others making the same claim." In one case, Special Master Denise K. Vowell wrote that "petitioners propose effects from mercury in [vaccines] that do not resemble mercury's known effects in the brain, either behaviorally or at the cellular level." "The cases had been divided into three theories about a vaccine-autism relationship for the court to consider," the AP (3/13, Schmid) reported. The court previously "rejected a theory that thimerasol can cause autism when combined with the measles-mumps-rubella vaccine," and "a theory that certain vaccines alone cause autism." But, Friday's "ruling doesn't necessarily mean an end to the dispute...with appeals to other courts available."
FDA adds boxed warning to Plavix.The AP (3/13, Perrone) reported that the FDA "is adding its strongest warning to the label for Plavix [clopidogrel bisulfate], cautioning that some patients do not respond to the blockbuster blood thinner." According to the Los Angeles Times (3/12, Maugh) "Booster Shots blog," the "warning indicates that the drug is dangerous only in the sense that it doesn't work in" certain "patients and thus may leave them unprotected against heart attacks and strokes." Specifically, some patients have a difference in a liver enzyme known as CYP2C19, which helps to convert Plavix to a form that the body can use, Dow Jones Newswire (3/12, Dooren) reported. Notably, FDA officials said CYP2C19 tests typically cost less than $500. Robert Temple, deputy director for clinical science at the FDA's Center for Drug Evaluation and Research, said, "What there hasn't been is a clear test of whether you can take people who are poor metabolizers, double their dose and do just as well," according to Bloomberg News (3/12, Peterson, Larkin). Employment/Workplace SafetyLegislators seek to strengthen whistle-blower protections.USA Today (3/15, Eisler) reports, "Members of Congress want to give federal whistle-blowers better safeguards against retaliation," including rights to jury trials on retaliation claims, lifting "gag rules imposed by some national security agencies" and strengthening rules "against penalizing whistle-blowers who report wrongdoing to Congress." Currently the retaliation review processes "almost always end with the same result: The whistle-blowers lose." Medical Errors/HealthcareFDA investigating device maker's failure to report patient death.The Houston Chronicle (3/13, Ackerman) reported, "Federal regulators are investigating whether the Houston maker of a pediatric heart pump designed by famed surgeon Michael DeBakey should have reported the death of a patient who got the device." In a warning letter to MicroMed Cardiovascular, the FDA notified the company in December "that information collected during an inspection last summer suggested that a death related to the DeBakey VAD Child Device occurred and was not reported." An agency spokesman said that "the FDA isn't saying the device caused the death, but because it was used on the patient and may have caused or contributed to the patient's death, the company should have reported the incident."
Drug companies increasingly turning to private physicians to promote products.The Milwaukee Journal Sentinel (3/14, Fauber) reported, "For years, drug companies sought out influential university doctors with impressive credentials to bring their message to other doctors and persuade them to write prescriptions for their products." But as "the practice of doing promotional speaking for drug companies has come under fire in recent years," more "medical schools...have developed conflict-of-interest policies that ban such talks." Companies have, therefore, "been forced to back away from that approach," turning to private physicians instead, who are not regulated by conflict-of-interest policies. As a result, US Sen. Herb Kohl (D-WI) "has co-introduced legislation requiring companies to release payments to doctors to highlight conflicts of interest for the public." Defense attorney criticizes team's approach to hospital wage-fixing case.The Chicago Tribune (3/13, Sachdev) reported, "Several Chicago-area hospital systems last month quietly settled a federal lawsuit that alleged they had conspired to fix or depress wages that they pay registered nurses. In the settlement, two nurses who were plaintiffs received $25,000 each, a small amount considering the case sought to represent a class of about 19,000 nurses that could have exposed the hospitals to nearly $1 billion in damages, according to people involved in the matter." But John Cusack, "the veteran Chicago antitrust lawyer who briefly worked on the case with the defense team says the hospitals spent millions of dollars to defend what he says was a frivolous lawsuit." Cusack has criticized the defense team's approach to the case. New reports suggest many Americans are being overtreated.The AP (3/13, Tanner) reported, "A spate of recent reports suggests that many Americans are being overtreated." Research appearing in the New England Journal of Medicine "suggested that too many patients are getting angiograms...who don't really need them; and specialists convened by the National Institutes of Health said doctors are too often demanding repeat cesarean deliveries for pregnant women after a first C-section." Meanwhile, "the American Cancer Society cast more doubt on routine PSA tests for prostate cancer" as "experts dispute how much routine cancer screening saves lives." Still, "Not all doctors and advocacy groups agree with the criticism of screening. Many argue that it can improve survival chances and that saving even a few lives is worth the cost of routinely testing tens of thousands of people." Columnist claims trial lawyer donations led to absence of tort reform in healthcare bill.In a column in the Washington Times (3/14), Donald Lambro criticized President Obama's "attack on the Supreme Court's ruling that ended the ban against corporate spending for political campaigns." Lambro comments that Obama knows "a thing or two about opening the floodgates of campaign money," adding, "like wealthy trial lawyers who win huge sums of money from medical liability lawsuits. The checks they collected for his campaign were worth every million they gave him," as "his health care reform plan dutifully left out any mention of tort reform." Product SafetyDriver's claims scrutinized as investigators fail to duplicate Prius acceleration.In San Diego, the AP (3/15, Spagat, Thomas) reports scrutiny of a Toyota Prius continued yesterday as the driver's attorney dismissed a House Oversight and Government Reform Committee "memo that questions his client's version of events." That memo obtained by the AP said National Highway Traffic Safety Administration technicians as well as Toyota "could not duplicate the sudden, unintended acceleration that James Sikes said he experienced March 8 when he reached 94 mph on a California freeway." The Los Angeles Times (3/15, Chang) also reports the memo indicates that when investigators who tested the car last week "pressed hard on the brake pedal and the accelerator at the same time, the Prius' gasoline engine shut down." Sikes had reported the car kept going, even though he was "laying on the brakes." His attorney, John Gomez, yesterday said, "There's a ghost in the machine. And no one is able to replicate it or pinpoint it or identify it." The Washington Post (3/15, Ahrens) notes that Toyota "has said it has had difficulty duplicating other reported incidents of runaway vehicles." Yet Kurt Bardella, a spokesman for the committee's top Republican, Darrell Issa, yesterday said the "findings 'certainly raise new questions surrounding the veracity of the sequence of events' reported by Sikes." Bardella added, "We're not saying Mr. Sikes is wrong or that he lied, we're saying that questions have arisen in the investigation." Fatal crashes said to show acceleration problems extend across product line. Focusing on traffic deaths linked to Toyota vehicles, USA Today (3/15, Carty) notes anonymous complaints in a database run by the NHTSA and writes that it "examined 25 of the 43 fatal accidents with 52 deaths. They are among 2,600 complaints to NHTSA since 2000 that allege sudden unintended acceleration in Toyota products." USA Today lists trends it says emerged in its examination of the fatal accidents, including that "allegations of acceleration extend across Toyota's product line." Ohio woman says accelerator on her Lexus stuck. The AP (3/15) reports, "An Ohio woman says her Lexus careered through a parking lot and crashed into a light pole in Fort Wayne, Indiana, after its accelerator dropped to the floor. Myrna Cook was treated for a broken leg and other injuries Thursday. ... Three spokesmen for Toyota Motor Corp., Lexus's maker, and a National Highway Traffic Safety Administration spokeswoman did not return calls." Orange County, CA, sues Toyota over acceleration defects. In a separate article, the AP (3/12) reported, "The Orange County district attorney has filed a lawsuit against Toyota Motor Corp., accusing the automaker of knowingly selling hundreds of thousands of vehicles with acceleration defects. District Attorney Tony Rackauckas said at a news conference Friday that his office has the right to bring consumer protective action on behalf of Orange County residents." Orange County's lawsuit "accuses Toyota of using deceptive business practices to become the world's top automaker." Lawyers vying for key roles in Toyota lawsuits. According to the Wall Street Journal (3/15, B1, Searcey), US lawyers are vying for key roles and influence in litigation against Toyota, which faces accusations of fraud and of using substandard electronics connected to drivers' sudden-acceleration claims. Critics blast sale of "formaldehyde-tainted" Katrina trailers.The Washington Post (3/13, Hsu), reporting on FEMA's recent sale "for pennies on the dollar most of the 120,000 formaldehyde-tainted trailers it bought nearly five years ago for Hurricane Katrina victims," said the "sale of the units, perhaps the most visible symbol of the government's bungled response to the hurricane, has triggered a new round of charges that it is endangering future buyers for years to come." According to the Post, "consumer advocates and environmentalists are outraged that the government resold products it deemed unsafe to live in, saying warning stickers attached to the units will not keep people from misusing them." The Post noted that the "mass sale came four weeks after a federal judge lifted a ban on the sale of some trailers, which are part of [formaldehyde-related] litigation brought by 40,000 former Katrina occupants against FEMA and the manufacturers." National Association of State Agencies for Surplus Property executive director Scott Pepperman is quoted saying that FEMA is "shoveling the whole thing under the carpet to make it go away." FDA investigating spice safety.In a front-page story, the Washington Post (3/14, A1, Layton) reported that the FDA "is reexamining the safety of...spices." Last week federal regulators met "with the spice industry to figure out ways to make the supply safer." FDA associate commissioner for food safety Jeff Farrar said that the agency "wants the spice industry to do more to prevent contamination. That would include using one of three methods to rid spices of bacteria: irradiation, steam heating or fumigation with ethylene oxide, a pesticide." Legislation pending in the Senate would "require food companies to take steps, such as treating raw spices, to avoid contamination." Time (3/15, Park) reports that the FDA "does not have specific guidelines for screening lead in dried products" because it "feels there is no safe level of lead in dried products, since studies have not yet established that lead exposure doesn't lead to adverse health effects." The agency, however, has "been reviewing its protocols for spices, to determine whether the risk of contamination or exposure to elements such as lead from dried products imported from overseas warrants more scrutiny."
FDA considers ending third-party review process.The Wall Street Journal (3/15, Mundy, Favole) reports that the FDA is considering whether to end the practice of approving medical devices based on third-party reviews. More than one-third of the products using third-party reviews are imaging and other radiological devices. Devicemakers use the process to get the imaging devices to market quicker, according to the Journal. But Donna-Bea Tillman, the head of the FDA's device-evaluation office, tells the Journal that third-party reviewers commonly have less information on the devices compared to the agency. Camel cigarette campaign appealed to teen girls.USA Today (3/15, Szabo) reports, "The ads for Camel No. 9 cigarettes -- which ran in magazines such as Vogue, Cosmopolitan and Glamour -- were a hit with girls ages 12 to 16," according to a Pediatrics study. Investigators also discovered that "promotional giveaways for the new brand...included berry-flavored lip balm, cellphone jewelry, purses and wristbands." A spokesperson for R.J. Reynolds "says the ads were aimed at adults, noting that 85% of the magazines' readers are over 18." But the study's co-author pointed out that "within a year of the ads' debut, 22% of girls listed Camel as their favorite cigarette ad," which is "twice the number" of those who previously said so. Illinois measure aims to reduce use of cancer-linked dry-cleaning chemical.The Chicago Tribune (3/14, Hawthorne) reported, "Similar to rules already adopted in California and being considered by other states," Illinois "seeks to dramatically reduce the use of a toxic chemical that has poisoned hundreds of sites across the state." Under the measure supported by Gov. Pat Quinn's administration, businesses will no longer be able to install machines that use "perchloroethylene, or perc, a common dry-cleaning chemical linked to cancer, liver damage and neurological problems," and they would have to stop "using the chemical in residential buildings by 2013. All perc use would be outlawed in 2026," but owners could apply for "grants of up to $10,000 to buy new, perc-free equipment." SecuritiesLehman bankruptcy report may guide lawsuits.Bloomberg News (3/13, Hurtado, Sandler) reported, "A 2,200-page bankruptcy report a year in the making may point the way for plaintiffs looking to sue former Lehman Brothers Holdings Inc. officials, lawyers said, rather than grand juries probing possible crimes. The report, filed by bankruptcy examiner Anton Valukas in Manhattan federal court on March 11, describes off-balance-sheet transactions Lehman used to hide debt in late 2007 and 2008, deceiving shareholders about its ability to withstand losses." Also in the NewsObama's chance to reshape judiciary could be "slipping away."The Los Angeles Times (3/15, Oliphant) reports, "An early chance for the Obama administration to reshape the nation's judiciary -- and counter gains made in the federal courts by conservatives -- appears close to slipping away, due to a combination of White House inattention and Republican opposition. | ||||||||||
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