Alabama Litigation Review

Alabama Litigation Review

Insights & Commentary on Developments in Alabama Litigation

Did The Uninsured Driver Have First Class Legal Representation — Courtesy Of Your Insurance Carrier?

Posted in Personal Injury, Uncategorized

Another driver crashed into you on an Alabama highway. You suffered personal injury. The other driver does not have enough insurance to pay for your damages. Naturally, the other driver also has no money, assets, or other hidden treasure, that can pay for your damages. Thankfully, you have uninsured / underinsured coverage on your policy. You can make a claim against both the negligent driver and your own insurance carrier for your damages.

What happens next? Your uninsured insurance carrier has a choice. It can choose to stay in the case and assist in defending the claim – in other words, to argue against your claim. If the uninsured or underinsured driver also has his own counsel, the injured plaintiff now faces multiple lawyers. Or, the insurance carrier can opt out and allow you to proceed just against the negligent driver, with the understanding it will pay damages beyond the other driver’s insurance. It’s a simple choice. Yet, Alabama’s Supreme Court has allowed this simple choice to evolve into one completely unjust to you as the injured plaintiff.

Your uninsured carrier can opt, in or out, of the claim. And, Alabama law says it has a “reasonable time” to make the choice that is in its best interest. If the insurance carrier opts “in” then it is an active defendant with lawyers actively working against you. If it opts “out” then it does not defend your claim at trial and you cannot mention the insurance company. How has our Court taken a simple choice and made it completely unfair to the injured driver? The recent case of Ex parte Electric Insurance Company is a perfect example. In that case, the uninsured carrier actively participated in the case for almost two years. During that time, the insurance company’s lawyers served discovery on the injured plaintiff, took the plaintiff’s deposition, and participated in depositions of four different medical doctors. After participating in the case – practically to the eve of trial – the insurance carrier attempted to opt out. The trial court understood the insurance company’s late effort to opt out was unfair and denied the request. However, our Supreme Court thought differently, concluding such a long delay was “reasonable.”

It is difficult to imagine how or why our Court thought this two year delay was reasonable. Instead, it prejudiced the plaintiff. If extra attorneys are allowed to participate in discovery and depositions for this length of time, then they should also be present and seen by the jury at trial. You should not be allowed to prepare the defense and then hide at trial.

Why Do Defense Neuropsychologists In Alabama Refuse To Disclose Test Data?

Posted in Personal Injury

“Alabama law is clear that information upon which an expert relies must generally be introduced into evidence.” Swanstrom v. Teledyne Continental Motors, Inc., 43 So.3d 564, 579 (Ala. 2009). So, why do defense expert neuropsychologists always want a pass? Why do these defense experts appear in brain injury cases, routinely offer harmful opinions, and then refuse to provide their test data? Why would a court allow any expert to offer an opinion while refusing to provide the facts or data behind it?

Over the years, I have worked with many personal injury clients recovering from a traumatic brain injury. We are fortunate in Alabama to have some excellent medical resources on this issue, primarily in and around UAB. These professionals are not the issue. For a good background on traumatic brain injury and the neuropsychologists who evaluate the extent of these injuries, Florida attorney Matthew Dolman has written several articles.

Most neuropsychologists approach their work with great dedication to helping brain-injured individuals. As with all fields, a few bad apples cause most of the issues. It is the handful of repeat players serving the largest insurance carriers who try to conceal their data. These individuals appear in cases to offer opinions that the injured person is really not hurt, has prior problems, or is simply exaggerating — whatever excuse points responsibility away from the defendant who caused the injury. I’ve collected some of these defense expert reports and not much changes from report-to-report except the patient name. It’s as if the expert has a form with blanks for names and dates.

Neuropsychologists conduct a battery of written tests and evaluations. This underlying data should be disclosed. No expert should be allowed to give opinions without providing the underlying data. In other fields, they aren’t. Yet, this is precisely the game of blind man’s bluff played by some defense neuropsychology experts. Frankly, it amazes me that any attorney would give one of them a pass.

In a recent traumatic brain injury case, I again faced the usual negative opinions from a frequent defense neuropsychologist. When I requested the expert disclose her underlying data, she responded that her professional organization prohibited disclosure. Really? This defense expert actually argued a voluntary professional group could decide not to follow Alabama law. That argument is bad enough, assuming her professional group actually had some non-legal standard. Yet, the expert misrepresented the position of her own professional group, by omitting key portions of the disclosure rules. And, this misreprsentation is not unusual for a small group of neuropsychologists who profit by generating negative case reports with little or no underlying support. The Rules of The American Psychological Association (APA) actually provide for data disclosure in cases. APA Rule 9.04 has the following language:

Pursuant to a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release.

.  .  .

In the absence of a client/patient release, psychologists provide test data only as required by law or court order.

Clearly, a neuropsychologist must provide his or her test data if the patient asks for it or subpoenas it for court. Just in case the defense expert still believes she can legally provide opinions without disclosing supporting data, a separate APA Fact Sheet for member professionals also explains the idea of disclosure:

Under HIPAA regulations, patients generally now have access to their records, including neuropsychological reports, test responses and raw data. This is regardless of the referral party (e.g. IME, Workers Compensation) or reason for referral.

Sounds clear to me. In my recent case, the court thought it was clear as well. I obtained the client’s test results. After reviewing the data, I was eagerly anticipating the opportunity to cross-examine the defense expert. But, the defense attorney preferred a resolution before I had that opportunity.

 

Trucking Companies And Unsafe Drivers

Posted in Personal Injury

Personal injury attorney Ken Shigley recently wrote a great post on “chameleon” trucking companies. In the industry, a “chameleon” is an unsafe trucking company that changes its name or re-registers to avoid liability or problems with its safety rating. The owners, equipment, drivers, and even address, usually stay the same. While the name on the side of the truck may be new, our families are still being endangered by the same careless drivers or the same defective equipment.

Ken’s post reminded me of a recent truck driver deposition. In the case, a lady suffered life-altering and disabling injuries on an Alabama highway. Following the crash, the truck driver refused to even exit his rig and help. The lady survived only because a passerby stopped and helped until emergency responders could arrive. Although the truck driver refused to help, he had time to make multiple cell phone calls. These included calls to a “rapid response” team which rushed to the scene – not to help the victims but to protect the trucking company.

In deposition, the truck driver admitted having at least three collisions in the three years preceding the crash in Alabama. Each prior collision was clearly his fault. In one, he rear-ended an innocent driver on another Interstate highway. In another, he crashed into a loading dock causing substantial damage to a factory. In the third, he continued to drive his truck after the roadway had become too dangerous due to ice, crashing and knocking out local electrical utilities. In addition to the prior crashes, the medical examiner had cautioned the company about allowing this driver to stay on the road due to serious health issues. When I simply asked in deposition if he must follow basic safety rules while driving his rig, the driver refused to say yes. Instead, he responded to questions asking whether he must follow safety rules by saying, “theoretically” and “in a perfect world.” The safety of our families on the roadway was not important to this driver. Did the trucking company remove this driver from our highways, even temporarily, after any of these past events? No. Did the trucking company try to retrain the driver after any of these past events? No. The trucking company simply put him back on our highways with instructions to deliver the merchandise on time.

The trucking company did closely monitor this driver – just not for safety. A month prior to the terrible crash in my case, the driver was reprimanded and threatened with termination. The trucking company threatened termination because the driver had been late with several deliveries. Here, speed was valued over safety.

Many trucking companies take safety seriously. Yet, some do not. As Ken notes, the government does not adequately screen companies for important safety issues. Too many dangerous and unsafe truck drivers are allowed needlessly and continuously to endanger our families on the roadway.

 

The Danger Of Overweight Trucks On Alabama Roads

Posted in Personal Injury

I stood on the side of the road – looking at the scene of a recent log truck collision. Two log trucks sped by me. Stand and watch for just a few minutes. You will understand how the speeding and fully loaded truck rammed into my clients from behind as they slowed to make a turn. It’s not difficult to picture the events that led to two people suffering severe personal injuries in that collision. Yet, this event did not simply happen. It was the result of the repeated choice to drive a dangerously overloaded truck on an Alabama highway.

In my client’s case, I served discovery requests (seeking documents) both to the truck driver and the trucking company. What I discovered was a driver who had been cited numerous times for dangerously overweight trucks. Did the trucking company do anything about it? No. Instead, the company knew this unsafe driving history and still continued to employee the driver. More logs mean more money for the trucking company. And, because the driver was paid only by the mile, his incentive is to make deliveries fast.

Overweight trucks are a real danger. They are a danger on Alabama’s Interstate highways. They are also a danger on Alabama’s rural roads. We have all seen out-of-control trucks barreling down the highway. Here are some reasons overweight trucks are more likely to cause serious collisions:

  1. The added weight increases braking distance. It is more difficult for the truck driver to react and stop.
  2. The added weight increases the chance of a dangerous tire blowout.
  3. The added weight increases the difficulty for the truck driver to steer and control his truck.
  4. The added weight increases the likelihood the load will shift or spill causing additional instability on the highway.

In addition to immediate safety issues, overweight trucks cause significant wear and tear on our roads and bridges leading to poor roadways which are dangerous for all drivers. Unless bad truck drivers and the companies employing them are punished fully, we will remain at risk from dangerously overweight trucks on our highways.

Did Alabama’s Court Of Civil Appeals Decide To Protect Working Families?

Posted in Personal Injury, Workers' Compensation

Sometimes, our Court of Civil Appeals issues a decision that creates a little “buzz.” This is what happened last week when the Court released the workers’ compensation decision in Alabama Forestry Products v. Harris. Usually, I read the decisions when released (or at least over the weekend after the release). This time I did not. Instead, I was busy briefing an expert witness issue. So, the phone call Monday morning from WorkCompCentral asking my thoughts on Friday’s decision came as a surprise.

What’s the big deal with this case? It is a big deal. If you have read my blog posts, you know I have written in the past about the impact of severe personal injuries on entire families. A disabling injury does not simply affect the person injured. Usually, entire families are altered as they adapt to care for the hurt member. It can impact the ability of a spouse to work outside the home. It can impact college plans for children. It can have an impact on every part of family life.

If you are hurt on the job in Alabama, our workers’ compensation laws provide medical care – at least that’s the intention. What kind of medical care is required? Year after year, insurance companies have tried to chip away at the requirement of providing medical care. If you read cases from our appellate courts, you see the tortured discussions and questions as to whether medical care for injured workers includes, or does not include, functional aides, therapeutic devices, assistance to disabled workers with daily activities, and so on. While courts have the luxury of debating details, the injured person and his/her family have more immediate needs.

Our workers’ compensation laws were intended to protect our workers. This should include full medical care for the injury. Sometimes, injuries require attendant medical care, like assistance in the home. This case involved a question of paying a family member to provide that care. If the family member is able to provide the care, this is probably a less expensive option for the insurance carrier than hiring a licensed nurse. Either way, our trial courts should be allowed to decide if the care is needed and if the family member is a qualified option. If so, the care should be provided under our workers’ compensation laws.

I doubt we have seen the end of the road for Friday’s decision. I find the decision a positive for working families. Yet, most of the “buzz” surrounding the decision comes from insurance carriers and compensation funds, thinking only of their costs. I suspect this case will be appealed to the Supreme Court. Hopefully, the decision will stand. I will be watching. And, I know those on the other side will be watching as well.

 

 

Alabama Law And The Independent Sales Representative

Posted in Business Litigation

My law partner just completed a case for an independent sales representative in Huntsville. While every case is unique, the basic story of manufacturers denying commissions to independent sales representatives is far too common. It is a basic story I addressed previously on this blog. As I wrote, “what the manufacturer often wants is the profit of a customer relationship with no expense, including the expense of paying the agreed-upon sales commissions.”

In Biblical terms, we often read of sowing, tending the fields, and then reaping the harvest. The farmer working in the fields must rise early. He works countless hours to plant and tend the fields. He earns nothing during this time. Yet, with much hard work (and a little cooperation from the weather) harvest comes. That is the time of reward. It is the same with independent sales representatives. These representatives work hard for their manufacturer clients. They search for business opportunities. They cultivate these opportunities, often with years of work and personal investment. Then, only after much personal work and investment, a deal is made that greatly benefits the manufacturer. This is the point when everyone should receive their reward – for the sales representative this means their hard-earned commissions. Yet, this is often the point when the manufacturer forgets (or chooses to ignore) the hard work required to cultivate the sale. Instead, many manufacturers choose to cut costs by cutting earned commissions. This is unjust.

Our Legislature makes many mistakes. But, in this area the Alabama Legislature did it right. Alabama, and many other states, have laws that protect certain independent sales representatives. In Alabama, the protections of this law allow treble damages and attorneys fees. While independent sales representatives are frequently the victims of greed, our law allows a remedy and protects their hard work.

The Non-Independent Medical Examination

Posted in Personal Injury, Workers' Compensation

Attorneys who handle personal injury cases know that so-called independent medical examinations (IMEs) are really not independent at all. Instead, these exams are usually an effort by the insurance company and its defense lawyers to purchase a false and misleading opinion. Many of the doctors who perform these examinations are completely biased against the patient. What really bothers me is that many plaintiff attorneys willingly let their clients submit to these biased exams. Attorneys who simply let their clients submit to these examinations are not acting in their client’s best interests. The false and misleading IME reports purchased by insurance carriers can have devastating effects upon injured workers and accident victims seeking justice.

The Center for Justice and Democracy summarizes the problems with “independent” medical examinations as follows:

  1. THERE IS EXTREME ANTI-WORKER BIAS AND INCOMPETENCE AMONG IME EXAMINERS.
  2. IME DOCTORS SOMETIMES NEVER LOOK AT THE PATIENT OR BARELY EXAMINE THEM.
  3. DISHONEST IME DECISIONS CAN BE DEVASTATING FOR WORKERS

Some of the doctors who hire themselves out to insurance companies for IMEs have an extreme bias against injured patients. One IME doctor in the Huntsville/Decatur area routinely writes into his reports that the injured person should be suspected of malingering. Another local IME doctor (wrongly) claims in depositions that “studies” reveal plaintiffs in lawsuits intentionally delay their own  healing. These IME reports are dishonest. They are wrong. Both the medical and legal communities should take a stand against them.

I usually object to efforts by insurance carriers and defense counsel to obtain IMEs. I have filed motions to oppose these requests and argued the issues in court. The law provides arguments that can protect clients from these reports in many situations. A lawyer should be willing to fight for his client. Unfortunately, many do not. Because the fight against biased IME reports is important, I enjoyed reading a recent Order obtained by attorney Larry King of Birmingham. Larry fights hard for his workers’ compensation clients. He recently tried a workers’ compensation case where the defense requested an IME after the doctor it had previously designated to treat the injured worker recommended surgery. That’s right – the defense wanted another opinion after the doctor it initially chose actually requested medical care. The Judge in Larry’s case issued an Order justly denying the requested IME.

The use of biased examiners to conduct IMEs is not limited to Alabama. A New York attorney recently wrote several blog posts about a physician in his state who made millions of dollars providing insurance carriers with reports. These posts make interesting reading. Apparently, that IME doctor’s true actions were revealed by a plaintiff who secretly recorded the “examination.”

 

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.