Alabama Litigation Review

Alabama Litigation Review

Insights & Commentary on Developments in Alabama Litigation

New Rules Risk Lives On The Highway (Update)

Posted in Personal Injury

I recently discussed a proposal in Congress which would make our highways much more dangerous. The proposal would allow longer trucker hours, heavier loads, and bigger trucks. Statistics indicate 4,000 people are killed and up to 100,000 people suffer personal injury annually in large truck crashes. My earlier post asks the question — Why change the rules and make our highways even more dangerous?

The plan to change the rules puts all drivers at risk. It’s a plan pushed by trucking industry lobbyists that puts profits over people. And, it’s wrong. I felt compelled to write this update after reading an article in a Mississippi newspaper. The article, titled The Longer Haul Debate, cites an effort by Mississippi officials to oppose the dangerous proposal to alter trucking rules. One official urged the Senate to squash the proposal saying:

I’m a whole lot more interested in the safety of Mississippi’s drivers than I am the financial welfare of a national corporation.

I admire the courage of this official to put safety before profit. In a letter to Mississippi Senator Thad Cochran, the officials noted a proposal to allow larger trucks:

would endanger motorists, worsen our crumbling roads and increase the fiscal burden shouldered by Mississippi taxpayers.

I wish Alabama officials would also advocate for the safety of drivers on our roads. Here is a chance for our officials to put public interests before corporate interests.

Broken Promises — The Workers’ Compensation Settlement Mill

Posted in Personal Injury, Workers' Compensation

What is the most common lie in workers’ compensation claims? A lawyer in another state recently discussed this question on his blog. His conclusion:

I thought long and hard about that one.  Unfortunately there are many to choose from.  But I think the biggest is from lawyers who will do anything to sign a case up.

That lawyer was certainly correct in his conclusion – “there are many to choose from.” In my practice, I frequently deal with employers and insurance carriers who are less than honest on many issues. These include return to work issues, medical care, termination of employment, and disability benefits owed. In fact, the list of issues is too great for one blog post. So, I’ll focus on the topic of promises to sign up the case.

It’s a growing problem in both personal injury and workers’ compensation cases. Billboards and television advertisements promise huge recoveries in record time. Fast settlements and a quick check – That’s the frequent promise. Sometimes, it works that way. But, most of the time it does not. While promises are made to get the case, most of these volume lawyers fail to help their clients to the fullest. Sometimes, these volume lawyers even leave their clients in worse long-term shape. I see it every day in both personal injury and workers’ compensation cases.

Good attorneys rarely make promises of huge recoveries or quick settlements. Why? Because good attorneys know the best results come with hard work and preparation. And, good attorneys have actually seen the inside of a courtroom enough to know how justice really works. After making promises “to get” the case, what are a few ways these settlement mill lawyers fail clients in the workers’ compensation context:

  • They do not fight to get medical treatment for clients.
  • They do not monitor medical care to prevent insurance carriers from sending clients to the worst doctors.
  • They do not defend clients against false denials of claims.
  • They do not research and explore difficult injuries in an effort to understand fully the impact on clients.
  • They do not aggressively represent clients.
  • They do not take cases to trial when settlement offers are unfair to clients.
  • They do not protect the rights of clients to long-term medical care for their injuries.

The interest of settlement mills is volume settlements, not the fight for justice. I see the results every day. My office receives calls daily from people who settled their case with one of these settlement mills and are now left in a bad situation. Unfortunately, it’s usually too late to help. These bad volume settlements affect all claims. In our cases, we now face employers and insurance adjusters who routinely and wrongly expect any settlement will be unfairly low and conditioned upon an injured worker simply giving up his or her right to medical care. That’s wrong. A system that treats individuals as parts on an assembly line is a system which leaves us all short of justice.

New Rules Risk Lives On The Highway

Posted in Personal Injury

Larger trucks. Heavier loads. Longer driver hours. These proposed changes will make our highways more dangerous. And, they are quietly working their way through Congress.

A recent Baltimore Sun article starts —

With the number of fatal accidents involving tractor-trailers on the rise, now would seem like the wrong time to consider relaxing truck safety rules in the United States. Yet that is exactly where Congress appears to be headed – and proponents are trying to accomplish this maneuver in an unusually stealthy manner.

Earlier this year I completed a trucking case where the company allowed its driver to stay on the road despite a long history of prior collisions. In another recent case, the driver had repeatedly been cited for dangerously overweight trucks. Why change the rules and make our highways even more dangerous? The truth — it’s a plan that puts profits over people. It’s a bad plan. That is why it’s being done quietly.

I’ve seen the results of long trucker hours and overloaded trucks firsthand — talking with families suffering from the personal injury or death of a loved one. Here are a few facts reported by the Baltimore Sun —

  • The proposed rule would allow 82 hour work weeks for truck drivers.
  • A truck driver survey revealed half of the drivers had actually fallen asleep while driving at least once during the prior year.
  • Longer and heavier trucks have a worse safety record than standard single trailer trucks.

The terrible collision where an exhausted Walmart truck driver injured comedian Tracy Morgan received significant press attention. Yet, every day, Alabama families suffer from collisions caused by dangerous commercial trucks and reckless drivers. And, every highway driver has had to dodge a big eighteen wheeler barreling down the Interstate seemingly out of control and unwilling to drive at a safe speed. It’s wrong for Congress to consider putting us all at even greater risk of harm.

Were Clinical Trials For Xarelto Tainted By Misconduct?

Posted in Defective Products, Personal Injury

What is Xarelto?

Xarelto (Rivaroxaban) is a relatively new coagulant (blood thinner). The FDA first approved Xarelto in 2011. It is distributed in the United States by Johnson & Johnson subsidiary Janssen Pharmaceuticals and Bayer Healthcare. Xarelto was released as a replacement for Coumadin (Warfarin), a blood thinner effectiely used for decades.

Xarelto is used to treat or prevent deep vein thrombosis which can lead to blood clots in the lungs (pulmonary embolism). It is also used to treat atrial fibrillation (heart rhythm disorder) to lower the risk of stroke due a blood clot. A Huffington Post article in 2012 detailed concerns of top heart doctors related to new blood thinners Xarelto and Pradaxa.

Were the Clinical Trials Tainted?

Slate article asks the important question — Are Your Medications Safe? It’s a question I’ve raised about several drugs and medical devices allowed by the FDA. According to Slate:

We didn’t have to search very hard to find FDA burying evidence of research misconduct.

The Slate article details two large clinical trials used to support FDA approval of Xarelto. According to the article, the studies were tainted by falsified data and the discarding of medical records.

What Problems Are Potentially Related to Xarelto?

Since its inception, Xarelto has been the subject of many adverse event reports to the FDA. Numerous claims have been filed as a result of personal injuries and deaths by patients taking the medication. Primary problems associated with the medication are:

  • Deaths Due To Uncontrolled Bleeding
  • Gastrointestinal Bleeding
  • Hemorrhaging
  • Strokes

Our FDA should protect patients from dangerous drugs and defective medical devices. Too often it does not. It’s all too common for dangerous and defective drugs to be approved for use. I’ve written past posts about the failed FDA approval process as well as research bias for drugs and medical devices. We are investigating Xarelto and potential injuries or deaths from it. In the future, the FDA should act first so needless injuries and deaths can be prevented.

The Lobby To Gut Workers’ Compensation

Posted in Workers' Compensation

An interesting article discusses the quiet lobbying effort to gut workers’ compensation laws bankrolled by Walmart and several other large retailers. According to the article, these companies have supported and funded a behind the scenes lobbying effort to dramatically change workers’ compensation laws in many states. My state, Alabama, is on the group’s target list.

The changes come quietly. In state legislatures, the group’s lobbyists work to promote legislation which limits or diminishes basic benefits to injured workers. One of the major efforts of this business group is to create an opt-out system for workers’ compensation. How would such a system work? Workers’ compensation benefits in Alabama are already extremely limited. Yet, although limited, the system does mandate certain basic medical and disability benefits for workers.

Under an opt-out system, a business could choose to opt-out of the workers’ compensation system and write its own benefit plan. The employer could be allowed to write its own rules governing benefits. If this ever became a reality in Alabama (and it already has in a couple states), here’s what injured workers and their families could possibly see —

  1. Plans that limit or cut-off medical benefits. Our current workers’ compensation law requires an employer to provide medical care for work-related injuries. Under some opt-out systems, the employer can choose to arbitrarily limit medical benefits to a set dollar amount or set time period in its plan. While this might save an employer like Walmart a few dollars, the overall cost to affected communities and taxpayers would be tremendous.
  2. Plans that limit or cut-off disability benefits. A proposal to cut-off disability benefits has already been tried in past Alabama legislative sessions. And, we are likely to see the proposal again in the future. If enacted, employers like Walmart might save a few dollars. Yet, the reality is that the cost of the disability would simply be shifted to the workers’ family, the local community, and the taxpayers.
  3. Plans that limit or deny benefits for many work-related activities. I recently completed a workers’ compensation case where the worker suffered paralysis following an injection at work. The employee was a healthcare worker who underwent additional vaccinations at her employer’s urging to save the employer from potential costs of blood-borne diseases. Yet, when injured, the employer tried to deny benefits arguing the injection was not mandatory. Do we want employers like Walmart to write plans arbitrarily limiting benefits to certain narrow activities? Do we want employers writing plans that exclude specific risks and exposures that are part of their employees’ actual work?

If this group was lobbying for real safety measures that prevented costly accidents and illnesses, it would be a good cause. But, the group is not engaged in that effort. Instead, this lobbying group is engaged in an effort to shift the costs of injuries in its workplaces. The group wants to shift those costs to the families of its workers, the communities where those workers live, and the taxpayers who pay for government services. The quiet lobbying efforts to gut our workers’ compensation laws should be stopped.

How Much Is An Arm Worth In Alabama? Not Much.

Posted in Workers' Compensation

ProPublica recently published an in-depth series detailing the demise of workers’ compensation benefits in many states. Journalist Michael Grabell did an excellent job researching the changing issues faced by injured workers and their families. Grabell’s articles relate stories like those I hear daily from injured workers in Alabama. If you want to understand the terrible toll of work-related injuries in our communities, I urge you to read his articles:

     The Demolition Of Workers’ Compensation

     How Much Is Your Arm Worth? Depends On Where You Work

     The Fallout Of Workers’ Comp ‘Reforms': 5 Tales Of Harm

Hopefully, Grabell’s research and writing will spotlight these troubling issues and lead to real reforms protecting our workers. While I’m hopeful, recent years have seen significant efforts in the Alabama Legislature to roll-back and eliminate even the minimal protections provided in our State. Just three years ago, in 2012, one Alabama State Senator proposed a “false” reform that would cut-off medical benefits to injured workers. I discussed that proposal in a prior post.

Now, two Alabama State Senators have proposed a new reform for workers’ compensation benefits. This new Alabama proposal follows ProPublica’s series and seeks to raise benefits for injured body parts. Is this proposed law an improvement? I certainly intend to study it. I hope it is not similar to prior proposed ‘reforms’ that offer one benefit but reduce or eliminate other important benefits in exchange.

Court Secrecy Harms The Public

Posted in Business Litigation, Defective Products, Personal Injury, Uncategorized

It’s been almost two months since my last post. Although not writing here, I have been busy writing – including a number of briefs in an ongoing products’ liability case and a separate case involving a public contract in Alabama. Both cases share a common (and troubling) issue. Both involve serious public issues shrouded in secrecy by confidentiality orders. One case involves a medical device marketed and implanted in women despite huge dangers known by the manufacturer. The other involves a company with a public contract affecting health benefits for thousands of beneficiaries across Alabama.

In the medical device case, patients and their doctors should have access to important information concerning research, testing, and FDA approval. Yet, they do not. Many of these documents are shielded from disclosure by court order. How many women could have been saved from the chronic pain and disabling injuries of this product? If only important information had been disclosed.

In the public contract case, Alabama’s citizens should have access to information concerning how a company spends their money. Yet, they do not. Why should any company ever be allowed to spend public money in secret? Yet, much of this information is shielded from disclosure by court order.

The New York Times calls it – Secrecy That Kills. A proposed law would change this. It’s called the “Sunshine in Litigation Act.” If passed, this law would prevent courts from restricting disclosure of information important to public health or safety. It would also prevent courts from enforcing some secrecy provisions in settlement agreements. The proposal is an important step for justice. This law could prevent many needless injuries and deaths. Yet, it is not enough. The proposal includes issues of public health and safety. It should also include cases involving the use of public money.

Secrecy in our judicial process harms all of us. Broad confidentiality orders allow defendants to continue their wrongful conduct and hurt more people. It’s time for a real discussion on the role of our courts in promoting the wrongful conduct of defendants through secrecy. A change is needed.

Public Contracts — A Call For Transparency

Posted in Business Litigation

A recent article discusses an important issue in public pension and health plans — a lack of transparency. I realize this topic is a change from my normal posts discussing personal injury, products’ liability, and Alabama court issues. However, it’s an important issue. It’s one important to Alabama. And, it’s one I’ve explored in a recent case representing a local healthcare business in Alabama with significant damages.

While the article discusses public plans in Kentucky, the issues also apply in Alabama. Some of our public plans have similar problems. What are two of the transparency problems we discovered in our case? They are:

  1. Conflicts Of Interest:  Let’s face it – health and pension plans involve complex issues. So, the State often employs consultants with expertise in the field. That’s OK. It’s important these plans provide long-term benefits to our valued public employees. Here’s the problem. In our case, the State’s consultant managed the entire bidding process. He even scored the bids of companies competing for the contract. Yet, while handling the bidding process, he also accepted thousands of dollars from one bidder. And, no surprise, that bidder won the contract. Although he accepted thousands of dollars and provided the winning bidder with important pricing information, neither consultant nor bidder disclosed their relationship. The bidding process should be fully transparent and beyond ethical question.
  2. Use Of Public Money To Favor Some Firms:  Health and pension benefits need specialized management. These plans need a contractor to administer benefits fairly between providers. Does anyone think it fair for the contractor administering state funds to choose one healthcare provider and pay it more for the same service than others? And, shouldn’t the use of the State’s money be transparent so everyone knows service providers are all being treated fairly and equally? When the contractor favors one company over another with the State’s money, it negatively affects competition and service for all.

These are important issues. Conflicts of interest and favoritism in government contracts should be a public concern. Most disappointingly, our public officials seemed more concerned with keeping obvious conflicts quiet than fixing them upon discovery. Maybe it was simply embarrassment arising from ethical concerns occurring on their watch? Regardless, we should expect better from our public officials and the companies handling public money.

Failed FDA Process Opens Door To Dangerous Medical Devices

Posted in Defective Products, Personal Injury

Power morcellators. Transvaginal mesh. Both are examples of the FDA’s faulty 510(k) process. I’ve written several times about transvaginal mesh – products that have caused tremendous personal injury to women in Alabama and throughout the United States. Last week, I sat through the deposition of our expert witness in one mesh case. This medical specialist has treated many women suffering from implanted mesh. He has seen first-hand the impact of these products. His testimony was a gripping account of the pain and suffering seen in so many patients.

Yet, the list of dangerous medical devices marketed through the 510(k) loophole is much longer than simply power morcellators and transvaginal mesh.

What is the 510(k) process and why is it a safety loophole for medical devices? In 2013, a Professor at the UCSF medical school explained “all you have to do is show that your device is substantially similar to a number of other devices.” But, here’s the real safety loophole. “And some of those devices which were originally approved have been recalled or pulled off the market, but their original approval was still allowed for those ‘predicate devices’ that claimed ‘substantial equivalence.'” In other words, a device may be approved although earlier versions have been pulled off the market due to patient safety risks. This is unacceptable.

A recent post in The Wall Street Journal sums up the issue related to power morcellators:

Regulator Didn’t Study Morcellator’s Cancer Risk Until 18 Years After Approving For Gynecology

Morcellators have been utilized in surgeries to remove uterine fibroids. The devices cut up larger tissue into smaller pieces that can be removed through smaller incisions. Sounds like a good idea – until researched and tested. About 1 in 350 women have cancerous tissue around these fibroids. Morcellators also cut up this cancerous tissue into many smaller pieces which can then migrate to other areas. This increases greatly the risk of cancer spread. The devices create a potentially fatal risk in patients.

On November 24, 2014, the FDA issued a new warning concerning power morcellators. This new FDA announcement begins:

Today, the U.S. Food and Drug Administration is taking immediate steps to help reduce the risk of spreading unsuspected cancer in women being treated for uterine fibroids. In an updated safety communication, originally issued in April 2014, the FDA warns against using laparoscopic power morcellators in the removal of the uterus (hysterectomy) or fibroids (myomectomy) in the vast majority of women.

The FDA announcement then discusses the new box warning added to morcellators. It informs medical providers:

Uterine tissue may contain unsuspected cancer. The use of laparoscopic power morcellators during fibroid surgery may spread cancer and decrease the long-term survival of     patients. This information should be shared with patients when considering surgery with the use of these devices.

Hopefully, this new warning will save lives. However, it is too little too late for many patients. These patients trusted that devices used on them had been studied and tested. They were misled by a system that too often rushes dangerous and defective products to the market. This loophole puts profit over safety. And, it is wrong.

Walmart Seeks To Delay Justice

Posted in Personal Injury, Supreme Court of Alabama, Workers' Compensation

In June, a Walmart driver slammed his truck into the limousine carrying comedians Tracy Morgan and James McNair. Morgan suffered severe personal injury. The collision killed McNair.

The crash generated media discussion related to highway safety and, particularly, the safety of large commercial trucks on our roads. Morgan filed suit against Walmart seeking to recover damages as a result of the truck driver’s negligence. In his suit, Morgan contends the truck driver had not slept in 24 hours prior to the accident. Truck drivers suffering fatigue and being pushed to make quick deliveries are real and far too common dangers on our highways.

I have represented individuals in cases against Walmart in the past. I always expect Walmart to fight as hard as possible to avoid accountability or liability. Walmart even takes a hard line when its own employees are hurt on the job and simply need workers’ compensation benefits. Maybe Morgan’s case, being in the public spotlight, will eventually be different? Maybe Walmart will treat Morgan better than others in an effort to avoid bad publicity? I don’t know what course the retailer will eventually take in his case. However, it sounds as if Walmart began defending the claims as it does most others.

In its initial response to Morgan’s suit, Walmart attempted to blame Morgan himself for the injuries. The effort by a defendant to avoid responsibility and shift blame back to the injured victim is a topic I wrote about recently. However, this is not the only tactic Walmart is apparently using to avoid or delay justice in Morgan’s case.

According to ABC News:

The truck driver charged in a New Jersey highway crash that injured comedian-actor Tracy Morgan and killed another man filed a request Friday to delay a federal lawsuit while his criminal case proceeds in state court.

The defense tactic of trying to delay civil justice due to pending criminal charges is one I’ve seen in past cases. A couple years ago, I represented the family of a local paramedic who was struck and killed while helping someone on the side of an Alabama highway. The defendant in that case was speeding in icy conditions, drove past a law enforcement officer waving for him to slow down, lost control, and ran off the highway. Law enforcement arrested the defendant driver because of his reckless conduct and pursued criminal homicide charges against him. When we filed a wrongful death suit for the Decatur family of this paramedic, the defendant immediately moved the Court to stop our proceedings until his criminal charges were resolved. The defendant in our case argued our civil proceedings could violate his right under the 5th Amendment to the U.S. Constitution not to incriminate himself.

Was the defendant entitled to a stay of our Alabama civil damages case? The answer is, not necessarily. The Alabama Supreme Court has previously ruled:

The United States Constitution does not automatically require a stay of civil proceedings pending the outcome of parallel criminal proceedings or potential criminal proceedings.

. . .

There are situations where the right against self-incrimination can be adequately protected while the civil case proceeds in some limited way.

Should an injured plaintiff simply agree to completely stop or stay his damages case? No. Our justice system already works slowly. Serious cases involve a number of issues. While the U.S. Constitution certainly protects the defendant from being forced to testify against himself in a criminal matter, this protection does not necessarily mean the entire civil case process should stop. The parties can often continue with other discovery issues or the depositions of witnesses and doctors. The parties can continue to move forward with some trial preparations. In Alabama, our Court has developed a number of factors aimed at balancing a defendant’s Constitutional right against self-incrimination with the important private and public interests in moving damage cases forward. Hopefully, in Morgan’s case, the Court will continue to move the wheels of justice forward.