Alabama Litigation Review

Alabama Litigation Review

Insights & Commentary on Developments in Alabama Litigation

Jury Punishes Manufacturer Of Dangerous Drug Actos

Posted in Uncategorized

This week, a Federal Court jury assessed a substantial verdict against the companies marketing the dangerous and defective diabetes drug Actos. I have discussed the danger of Actos and bladder cancer in prior posts. I have also written about the manufacturer Takeda and claims the company hid tests revealing the risk of bladder cancer to patients.

Takeda faces a huge number of lawsuits from patients who suffered bladder and other cancers after taking this drug. Many of these cases also involve Eli Lilly who distributed the drug in the United States. For purposes of discovery, all Federal Court cases involving Actos have been consolidated before a Judge in Louisiana. I have investigated a number of potential claims related to Actos by consumers in Alabama and have a case pending against Takeda in the consolidated proceedings. So, I followed this first Federal Court trial closely each day.

The trial began in late January and ended this week. At the conclusion of the case, the jury found the two companies concealed the dangers of the drug and failed to warn the patient of the risk. The jury found this patient suffered significant losses and assessed over $1 million dollars in compensatory damages. Next, the jury determined that Takeda and Eli Lilly should be punished for their wrongful conduct. To punish the defendants, the jury assessed punitive damages of $6 billion against manufacturer Takeda and $3 billion against distributor Eli Lilly. As with any verdict against a large corporation, the Wall Street Journal immediately wrote to defend the companies. The Journal wrote that the punitive damages would be reduced on appeal. Will the punitive assessment be reduced? Based on current law, it will. Our courts have created guidelines to evaluate and reduce significant punitive damage awards that are much greater than the actual or compensatory damages suffered by the plaintiff.

While the punitive damages here will surely be reduced, should they? The companies, Takeda and Eli Lilly, made billions selling a dangerous and defective drug to innocent consumers. If the jury is correct, then both companies knowingly poisoned patients. Although a multi-billion dollar punitive assessment sounds huge, it is a drop in the bucket when compared to the profits gained by these companies from their wrongful conduct. Would we allow a person to intentionally poison his neighbor and simply pay a fine when caught? No. We consider that a crime and put the offender in jail. Increasingly, our Supreme Court has provided large corporations the rights of persons. Yet, the same Court often does not require accountability and responsibility from these corporations. Rights should always be accompanied by responsibilities. We should not allow companies to knowingly sell dangerous and defective drugs to the public.

My office continues to investigate and pursue these claims. I’ll be following this verdict closely. Whether ultimately reduced or not, this jury heard the evidence concerning the dangers of this drug and the many efforts of these companies to profit while concealing the harms. The verdict assessed by this jury sends a strong message that this terrible conduct is unacceptable. As a society, we should demand better from the companies marketing medications to us.

Confidential Settlement? Don’t Brag on Facebook.

Posted in Personal Injury

Attorneys and clients often sign settlement papers without a close review. After all, the case is finished. Right? It’s time to get the money. When a case settles, the plaintiff gets paid and drops the claim. That’s the way it’s supposed to work. Yet, the language in settlement papers does have meaning. And, sometimes that language creates more potential liability. A good lawyer carefully reviews all documents and works to protect his client.

Case settlement is not always the simple process of signing a release and receiving a check. Many personal injury cases have difficult issues related to claims for medical bills. In other cases, for a variety of reasons, a defendant wants the settlement to remain confidential. Now, I don’t really like secret deals. I think they are bad for our tort system. Secret deals allow companies to hide safety issues in their products. Secret deals allow defendants to hide their bad actions from others who were also harmed. And, secret deals mean more contract language that can create issues in the future for your client.

I’ve written about the potential tax issues previously. Now, confidential settlements are back in the news. Why? Because bragging on Facebook just cost a Florida man his settlement. For accuracy, I need to say that the plaintiff himself did not do the bragging. His daughter did. As a result, he gets no settlement proceeds. If you have not learned by now, be careful what you post on Facebook.

What are some good practices when dealing with confidential settlements? Attorney Ray Bennett at Womble Carlyle just posted an article on the issue. I don’t know Ray but he works at an excellent firm. I have had a case against his partners in the past. Ray discusses some excellent practices from the defense perspective. I will mention a few of his points, addressing them from the plaintiffs’ side:

  • Don’t ignore confidentiality language after settlement. This is obvious. It can cost you your settlement. My advice for lawyers is to sit down with their client and discuss the issues. In the Florida case, I bet the plaintiff never thought his daughter would brag on Facebook. But, she did. A little discussion at the time of settlement can help clients understand and prevent future problems.
  • Don’t allow confidentiality language to be added after the initial deal. Many cases settle at mediation. When they do, the mediator will usually write a short agreement of the settlement. Afterwards, the defense counsel will prepare more formal settlement paperwork. Confidentiality is an important issue. If it is not raised at mediation and included in the mediator’s short agreement, I usually won’t agree to it later. It’s too late. Who knows — between the day of mediation and day when the final paperwork is signed, my client could have told someone. He could have told a lot of people. So, allowing additional clauses is a bad idea. If I settle a case outside mediation, I usually confirm the major terms immediately by email. Again, if we don’t discuss confidentiality when we initially agree to settle, adding terms later is too late and creates too many potential problems.
  • Don’t ignore the scope of the confidentiality agreement. Your client just settled a significant case. He may need to consult his accountant or financial adviser. While these professionals should protect confidentiality, they are beyond your control. Allow exceptions for needed disclosures.
  • Don’t agree to the “teeth.” In his article, from the defense side, Ray discusses giving the clause “teeth” if you want it to be enforceable. The one in the Facebook case had teeth. Now, that plaintiff has no settlement. From the plaintiffs’ side, you can craft an agreement with only limited teeth that protects the settlement.
  • Don’t forget to decide what you can say. Let’s face it – friends, family, co-workers, neighbors, know about your case. If you suddenly have some extra money, one of them will ask. If you suddenly quit complaining about the defendant after two years of fighting, one of them will ask. What do you say? This is an issue that can be addressed and resolved in advance.
  • Don’t ignore the potential tax implications. In many cases, settlement proceeds are not taxable. You need to address this issue with your attorney prior to settlement. A confidentiality clause can create tax issues for damages that would not have been taxable otherwise.

I have a lot of issues with confidentiality clauses. I also have a lot of issues with plaintiffs’ lawyers who simply allow their client to sign extensive paperwork, without reviewing it, to get the deal done. If you represent individuals or small businesses seeking damages for a harm or injury, be careful what you allow your client to sign.

Consumers Suffer When Drug Companies Conceal Product Safety Information

Posted in Defective Products

Consumer health and safety should be the primary goals of drug research. Yet, they are not. The primary goal seems to be greed for quick and massive profit. For some drug companies, that means — conceal bad studies revealing drug dangers, give the FDA just enough positive information to get the drug to market, and then sell as much as possible until the dangers come to light. Because of this, many patients are needlessly injured each year by dangerous and defective drugs that should have never been sold.

Below are just a few recent examples of how drug companies view real research and the documents that explore the safety of their products:

  • Transvaginal Mesh — My office represents numerous women in Huntsville and throughout North Alabama who suffered injury from mesh products by manufacturers Boston Scientific, Johnson & Johnson’s Ethicon, Coloplast, and American Medical Systems. These companies marketed their mesh products through a loophole in our law that allows certain dangerous medical devices to be sold prior to proper testing. Basically, the process is turned upside down and sales come before safety testing. Thousands of women have suffered serious, and often disabling, injuries after being implanted with these dangerous and defective products. In the process of representing our Alabama clients, we have worked closely with attorneys in other states. The dedication of the many excellent attorneys representing injured victims of these defective products is the only reason the truth about the dangers is now coming to light. Unfortunately, some manufacturers continue to avoid producing the complete information which the public deserves. On February 4, 2014, the Court hearing the claims against Ethicon, entered an Order saying the following:

Having now thoroughly considered the matter, the court finds that Ethicon did destroy or otherwise lose documents that should have been preserved in anticipation of this litigation.

  • Actos – We have also filed a lawsuit on behalf of an Alabama man who developed bladder cancer after being prescribed Actos for his diabetes. I’ve written previously about the serious health risks of Actos. Now, as the first bellwether trial in Federal Court begins against manufacturer Takeda, the Judge in this case has also had to contend with issues of document destruction by the manufacturer. Here is what the Federal Court Judge said about Takeda’s conduct:

For the reasons that follow, this Court concludes relevant evidence was deleted by Takeda after the duty to preserve such evidence arose. The Court further finds, for the reasons that follow, the PSC has presented prima facie evidence that the evidence would have been both relevant and beneficial to the Plaintiffs’ cases within the MDL and of bad faith on the part of Takeda.

  • Pradaxa — We are investigating the harmful effects of this blood thinner. The FDA approved Pradaxa in 2010 as an alternative to Coumadin (warfarin) for preventing blood clots. However, internal bleeding is a serious, and sometimes fatal, side effect. Unlike warfarin, there is no known remedy for internal bleeding caused by Pradaxa. Since 2010, the drug has resulted in numerous complaints of bleeding and death. The FDA is currently investigating these serious health issues. In December, the Federal Judge overseeing the discovery process in the lawsuits filed against the German manufacturer of Pradaxa, found the company’s executives acted in “bad faith” concerning the company’s “lost” files. In other words, the company destroyed or lost key documents related to the safety of its drug. The Judge fined the company almost $1 Million and ordered certain foreign executives to appear for depositions. The manufacturer appealed. The appellate court reversed the requirement that the foreign executives appear for deposition but allowed the monetary penalties to stand.

These are just a few examples of a system that places quick, massive profit before the health and safety of consumers. Our families and communities deserve better. Companies that conceal vital information related to patient safety should be held accountable for this conduct.

The Importance Of Early Treatment For Traumatic Brain Injury

Posted in Personal Injury, Workers' Compensation

Recent research reveals that early treatment for traumatic brain injury is an important factor in patient recovery. According to an article discussing this research:

Early rehabilitation interventions seem to be essential for how well a patient recovers after a severe brain injury.

I have represented many individuals suffering from traumatic brain injury (TBI) over the years. In helping these clients, I have encouraged their families to help in the process of recovery.

Unfortunately, our medical and legal systems often delay or prevent these individuals from quickly obtaining the rehabilitation needed to make a good recovery. What issues can delay or prevent needed rehabilitation? How can a victim’s family and legal counsel help with these issues? The following are three issues which often prevent the personal injury victim suffering a traumatic brain injury from obtaining needed care quickly:

  1. Personal Denial. Prior to suffering an injury, the patient served many important roles — valued employee, devoted parent, loyal spouse. Suddenly, the patient is suffering symptoms of a brain injury that impact all these important roles. Many times, the patient does not realize or fully understand what is happening. If the patient does understand, he or she may be embarrassed or depressed due to their problems. For many reasons, patients will deny these important issues. That is why family involvement is so important.
  2. Lack of Physician Understanding. We expect our doctors to know everything about medicine. Unfortunately, they do not. When it comes to brain injuries, many doctors really do not understand the symptoms, issues, or problems, associated with mild traumatic brain injury. Other doctors simply ignore these problems in the hope they will resolve. I have seen too many cases where the treating doctor did not know how to handle these issues and ignored them. It is very important that such patients be sent to the proper specialist as soon as possible. These specialists include neurologists and neuropsychologists who can test and treat the issues related to TBI.
  3. Insurance Carrier Cost Cutting. This is a huge issue for workers’ compensation cases in Alabama where the employer (through its insurance carrier) has a legal obligation to provide needed medical care. Insurance carriers have a difficult time ignoring injuries that are visible or produce significant physical limitations such as broken bones, torn shoulders, and ruptured discs in the spine. However, brain injuries are a different story. Here, insurance carriers understand that many physicians are unskilled in evaluating these injuries and will ignore them. But, what if one of the physicians does note symptoms common to brain injuries? In the workers’ compensation context, many insurance carriers will still ignore the complaints in the hope that the patient, his family, and his legal counsel will not seek care. If ignoring the problems does not work, some insurance carriers have specific specialists who will see the patient and issue a report claiming the symptoms are due to other issues such as depression, prior mental problems, or simply efforts to malinger. Insurance carriers have become very skilled in saving their money by ignoring needed treatment for brain injuries. While this saves the insurance company money in the short-term, the affected families and communities suffer tremendous costs.

Traumatic brain injuries respond best to early intervention and treatment. Unfortunately, our medical and legal systems too often delay necessary care. As a result, it is essential that patients, their families, and the legal counsel helping them work hard to obtain needed care.

Workers’ Compensation And The Alabama Pain Management Act

Posted in Workers' Compensation

I often enjoy reading posts from the Alabama Workers Comp Blawg. While good attorneys, their approach is only from the defense side. That is quite different from my practice handling plaintiffs’ personal injury and workers’ compensation cases. So, while informative, I often disagree with their position.

Recently, these defense attorneys wrote about the new Alabama Pain Management Act. Here’s what these guys had to say:

A recent report from the Centers for Disease Control and Prevention (CDC) found that Alabama was among the top twenty (20) states nationally in number of drug overdose deaths each year. In an effort to combat this problem, the Alabama legislature recently passed several new laws to regulate pain management clinics and impose stiffer penalties upon persons who doctor shop to illegally obtain prescription pain killers.

The Alabama Pain Management Act requires that all physicians who provide pain management services must now register with the Board of Medical Examiners by January 1, 2014. The Act defines pain management services as those medical services that involve the prescription of controlled substances in order to treat chronic non-malignant pain. The registration requirement pertains to any physician or clinic that advertises or holds themselves out to be a provider of pain management services. Additionally, the Act requires that all pain management clinics appoint a medical director, who must have an unrestricted Alabama Medical License and must meet certain training criteria. Each clinic’s medical director must also register with the Alabama Department of Public Health’s Prescription Drug Monitoring Program.

Where do I start? First, I agree with these guys that the abuse of pain drugs is a significant problem in Alabama (and most other states). The new law attempts to combat that problem by requiring pain doctors to register with the Board of Medical Examiners. I hope and believe that the law may reduce the abuse of pain drugs in our state.

Yet, I do have a problem with this law. In the middle of this debate, we have many individuals who do suffer chronic and debilitating pain. Many of these individuals were injured in severe work-related accidents and are entitled to medical care through Alabama’s workers’ compensation system. These workers never wanted to suffer. Most are deeply depressed that they can no longer work or function normally. They legitimately need specialized care. Yet, they face problems getting that care for a couple reasons.

First, they face the stigma of needing specialized pain treatment – a stigma created by the abusers of narcotic pain medications. The Act seeks to reduce the clinics who promote this abuse. That’s good. Second, these injured workers are often hustled through a system where they never get needed care. How does that happen? In an effort to increase profit, the workers’ compensation insurance company refuses needed treatment. In order to do this, the insurance carrier will often send the patient to a local doctor who really does not treat chronic pain. That doctor will then see the patient briefly and provide no treatment of any type. The injured worker is left to suffer. It’s a sham arrangement between the insurance carrier and doctor to ignore needed medical care. It’s wrong. It costs the rest of us. And, the law should also address doctors who lack the skills or desire to provide real treatment and care for individuals suffering chronic pain. In that regard, the law falls short.

The law should provide a comprehensive approach to pain management. It should seek to fix problems in the system. Those problems clearly involve the overuse and abuse of pain medications. In addition, the problems also involve the abuse of the system by insurance carriers denying real care when needed.

Workers’ Compensation Settlements And The Closure Of Future Medicals

Posted in Workers' Compensation

In Alabama (and most other states), a primary goal of workers’ compensation is to provide injured employees with needed medical care. The first goal, when possible, is to treat and rehabilitate the injured person so that he or she may return to gainful employment.

By law, employers must have coverage which provides needed workers’ compensation benefits to workers. In the past, I have written about workers’ compensation insurance carriers collecting profits for providing coverage and then trying to shift costs to other sources. Often, cost-shifting means the government pays for the benefits. That costs all of us.

In many workers’ compensation cases, the insurance carrier’s attorneys will want to close medical benefits. That is, they will want you as the injured worker to give up your right to medical treatment for some sum of money. I usually advise clients to resolve only the portion of their claim for disability benefits and to leave medical benefits open.

Yet, some lawyers who represent injured workers will routinely agree to such settlements without fully considering the problems created for the client. That is a terrible way to represent workers. Before settling a case by closing medical benefits, the injured worker and his/her attorney should carefully consider the issues.

When Medicare is involved (or has the potential to become involved) the issues are even more complex and important. Attorney Kristina Thompson of the Jernigan Law Firm in North Carolina recently wrote an excellent blog post that addresses the closure of medical benefits when Medicare is an issue. Kristina’s opening paragraph accurately sums up the issue:

Will Medicare cover my future medical expenses for my workers’ compensation injury if I settle my case? Yes, no, maybe…the answer to this question is always a tricky one. In fact, this is one of the most complex questions that will confront an injured worker at the time of settlement.

If you have been injured in an on-the-job accident, the potential for Medicare exists, and the insurance carrier wants you to settle your rights to medical care, you should read her post.

A New Low In Attorney Advertising?

Posted in Personal Injury

In past posts, I’ve been critical of attorney advertising on television and billboards. These advertisements are a terrible way to find a personal injury attorney. On television, these characters stand on top of 18 wheeler trucks, wear capes, chase ambulances and talk about fast settlements. The attorney (or sometimes just an actor) tries to look serious. Yet, you never see any of these attorneys at the courthouse actually representing injured people.

Until now, I thought attorney advertisements in Alabama were not as bad as those in other places. Unfortunately, I’ve just seen the single most horrible attorney advertisement of all. And, it comes from a local firm in North Alabama. The advertisement is not just bad, it’s offensive. The ad is so bad a leading website for lawyers calls it “Law Firm Advertising — Now With More Racism!”

I’m not sure what to think. When I first saw the ad I thought it was a bad joke. This is no way to advertise a personal injury practice.

I’ll let you decide for yourself what to think. If you are suffering from a personal injury, it is important to hire the right attorney. You need an attorney with the skills and dedication to handle your case throughout the process. You need an attorney who is willing and able to go to trial when needed. Tennessee attorney John Day writes a blog providing good legal advice. He previously wrote some pointers on how to select the right attorney. Here are his pointers:

  1. Does the lawyer know injury law?
  2. Does the lawyer have the resources to handle my case?
  3. Is the lawyer well-respected in the community? What do past clients say about the attorney?
  4. Has the lawyer been successful in the past?
  5. Can the lawyer take on the opposition?

Personal injury law is a complex area of the law. A good attorney in this area of the law must understand many issues that impact his client and must have the skill to go to trial. These issues are too important to hire an attorney based on a billboard or television advertisement.

Update: Injured By A Defective Generic Drug? Where Is The Justice?

Posted in Defective Products

In August, I wrote about the recent Supreme Court decisions shielding generic drug makers from accountability for injuries and deaths caused by their defective drugs. Because generic drug makers were required to use the same warning label as the brand name manufacturer, they were provided immunity for failing to warn of dangerous side effects. This meant that generic drug makers could sell their products without liability to consumers.

Justice requires that companies be held responsible for their dangerous and defective products. It is outrageous that a company could continue to market and sell a product for years with inadequate warnings, and yet, escape responsibility for the harm done. Yet, our courts have increasingly closed the courthouse doors to consumers.

It now appears that the FDA may act to remedy these bad legal decisions. On November 13, the FDA issued a proposed rule allowing generic drug makers to update their warning labels in light of new information.

Janet Woodcock, head of the FDA’s drug research and evaluation division, published an essay explaining the purpose of the new rule. Dr. Woodcock had this to say about the proposed new rule: 

All drug manufacturers are required to keep close tabs on their drugs once they go to market, reviewing all reports of adverse events involving their drug and reporting these findings to FDA.  – See more at: http://blogs.fda.gov/fdavoice/index.php/2013/11/working-to-improve-the-communication-of-important-drug-safety-information-about-generic-drugs/?source=govdelivery&utm_medium=email&utm_source=govdelivery#sthash.kQ4qNlk8.dpuf All drug manufacturers are required to keep close tabs on their drugs once they go to market, reviewing all reports of adverse events involving their drug and reporting these findings to FDA.  – See more at: http://blogs.fda.gov/fdavoice/index.php/2013/11/working-to-improve-the-communication-of-important-drug-safety-information-about-generic-drugs/?source=govdelivery&utm_medium=email&utm_source=govdelivery#sthash.kQ4qNlk8.dpuf All drug manufacturers are required to keep close tabs on their drugs once they go to market, reviewing all reports of adverse events involving their drug and reporting these findings to FDA.  – See more at: http://blogs.fda.gov/fdavoice/index.php/2013/11/working-to-improve-the-communication-of-important-drug-safety-information-about-generic-drugs/?source=govdelivery&utm_medium=email&utm_source=govdelivery#sthash.kQ4qNlk8.dpuf

All drug manufacturers are required to keep close tabs on their drugs once they go to market, reviewing all reports of adverse events involving their drug and reporting these findings to FDA

But currently, only brand name manufacturers are able to independently update and promptly distribute revised drug safety information, also called labeling, …

The vast majority of prescription drugs dispensed in this country are generics. Yet, consumers who are injured by defective generic drugs are left with no justice. The proposed new rule may fix this injustice by placing responsibility on generic drug makers to warn of safety issues with their products.

Dealing With The Difficult Judge In Trial

Posted in Personal Injury, Supreme Court of Alabama

In a recent interview, Federal District Court Judge James Holderman provides a good perspective on dealing with difficult judges in trial. Judge Holderman’s experience includes many years of trial work as a private attorney prior to his appointment as a Federal Judge.

Let me start by saying the truly difficult judge has been a rare experience in my practice. Most judges at the jury trial and appellate levels where I practice are dedicated to reaching a fair and just decision. However, as Judge Holderman notes:

Judges are people and subject to the same prejudices, pressures, human problems, flaws, and frailties, which we all have.

Even the best judge can have a bad day that impacts his ability. Judge Holderman describes the specific types of difficult judges he encountered while a trial attorney. His list of types is spot-on. The article is a good read for lawyers representing clients in personal injury and damage cases who want to improve their trial practice.

The interview provides some common sense advice to attorneys. At least, I believe the advice to be common sense.  Unfortunately, I have seen too many attorneys act differently. Here is the advice with my commentary:

  1. Be Prepared. Case preparation is essential. Clients deserve your best effort as a professional. An attorney who prepares his cases well is ready to handle the curve balls that come with trials. Maybe its laziness, but too many lawyers fail to prepare.
  2. Know the Rules. When I think of legal rules, I always remember a specific evidence class at law school many years ago. The professor was quizzing a student on an evidence issue. The student had not read the materials and had no idea which rule applied. "But, it’s just fair" the student argued to support his position. Fairness is important but you better know the rules if you are a lawyer who wishes to be successful. This requires a dedication to study.
  3. Be Professional. In Huntsville where my office is located, and surrounding areas of North Alabama, we have been fortunate to have very good bar associations and good legal communities. That’s not to say we are perfect — there is always a bad apple or two. When faced with the specific types of difficult judges listed in the interview, a professional reaction always serves your clients and courts best. Stay composed and stay civil.

Whether lack of desire or lack of experience, too many attorneys fail to deal properly with difficult judges. This is a necessary skill for the successful trial lawyer.

Falls From Lifts Can Be Prevented With A Little Safety Planning

Posted in Personal Injury

In the October issue of Trial magazine, I read of a case involving a fall from a manlift in South Alabama. Falls from heights are a leading cause of disabling personal injury and death on construction and industrial sites.

In the last few years, I’ve represented several workers who fell from lifts. Fortunately, all these clients survived their falls. However, each suffered disabling personal injuries. Those injuries left them unable to work. Here are a few of these fall accidents:

  • A worker in Huntsville who fell when his scissors lift toppled because of uneven ground below it.
  • Two workers in Decatur who were knocked from their scissors lift by other moving equipment around them.
  • A worker in Decatur who had to jump from his lift when the building structure around him caught fire. He had been placed on an extended lift in a highly flammable area without fire protection.

These falls all had something in common — Management failed to plan for safety. An activity hazard analysis (also referred to as a job hazard analysis) is a simple (and quick) way for management to plan and protect the workers on a job. Yet, too often management is unwilling to take even a little time for safety planning. Instead, the company is more interested in rushing production than it is in protecting the men and women who get the job done.

In one of the cases I mentioned, the construction company overseeing the project produced about 8000 pages of documents to us during the case. How many of these pages related to site safety? A total of less than 5 pages related to site specific safety before the accident! The project involved the construction of a large building with many workers present. Yet, the contractor was not concerned with the safety of these workers. That’s unacceptable. In order to complete difficult jobs, companies sometimes put workers in difficult positions. Those workers should be able to trust that management has taken needed steps for their safety. The workers who perform difficult jobs for us deserve that much.