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As the fight against Bayer and Johnson & Johnson over the controversial drug, Xarelto, wages on, Pennsylvania has organized claims floating around state courts into a mass tort. The anticoagulant (blood thinner), which has already been linked to bleeding and in some cases death, has prompted at least 70 individual suits in Pennsylvania, each claiming that the drug’s manufacturers didn’t warn users about the risks associated with the drug. While Xarelto does its job as a blood thinner, the main concern is that this drug never stops doing that job, and there is no antidote on the market to reverse the effects should a user ever need that to happen. Considering the sheer volume of cases piling up on Pennsylvania’s dockets, the Administrative Judge (judge in charge) of the Court of Common Pleas of Philadelphia, streamlined proceedings into a “mass tort.”

Mass Tort? What About a Class Action?

Similar claims and similar plaintiffs? Isn’t that a class action? Not always. In order for a case to be considered a class action, it has to meet certain procedural requirements, and the plaintiffs’ injuries have to be essentially the same. Plus, the verdict and recovery are going to be the same for every plaintiff in a class action. The problem with this is that each individual plaintiff may have suffered a different type of injury or their injuries may have varied in severity. Mass tort actions take that into account by consolidating only the pre-trial proceedings, as opposed to the actual trial and verdict. The most important pre-trial proceeding is, of course, discovery, so consolidation allows for plaintiffs’ attorneys to work together during the discovery phase to streamline and avoid wasted time for the plaintiffs, defendants, and courts.

A good way to tell these two apart is to think about this situation: your 20 year-old son, your 80 year-old aunt, and your 2 year-old nephew each purchase a bottle of soda. Let’s say the soda is tainted and causes each of you to contract pneumonia (all the more reason to drink water). Pneumonia is going to effect each family member differently, so each should be entitled to a recovery against the soda company that aligns with the severity of their injury. That’s where a mass tort comes in. On the other hand, lets say each family member bought a soda, and a year later the company was found to be guilty of price-fixing, meaning each of your family members paid $1 more than they should have for the soda. Each of their injuries is the same here ($1 loss), so a class action is the way to go.

What does this mean for Pennsylvania?

The decision to consider this a mass tort is similar to the Feds’ decision to establish “multi-district litigation” for the Xarelto suits in Federal Court. This, once again, is a fancy way of saying that different courts in different jurisdictions are getting the same cases, so let’s not waste everyone’s time and money doing the same discovery and ruling on the same pretrial motions over and over. A federal judge in Louisiana currently has the 86 pending Xarelto cases on his docket. In spite of Xarelto defense counsel’s unwillingness to do so (based upon their argument that most plaintiffs were from out of state), the PA cases will be transferred to the state’s Complex Litigation Center. Granted, a few cases will be selected for early trial dates, allowing plaintiff’s attorneys to dip their toes into the water, assessing jurors’ initial response. But still, they’re not binding on other trials.

Xarelto litigation keeps pouring in, yet Bayer and Johnson & Johnson are only pushing the drug harder and seeking more ways for people to buy it. Of course, millions of dollars in settlements and litigation seems like a drop in the bucket when the drug is already raking in almost $1,000,000,000 per year, with that number likely to only go up if the FDA approves the drug for more types of usage.

 

 

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missouriAfter a divided Supreme Court of Missouri found the legislature’s $350,000 statutory cap unconstitutional 2 year ago, opponents of letting juries decide just how victims should be compensated said the sky was going to fall in Missouri. Last September, Missouri Supreme Court nixed a statutory limit on the amount of punitive damages that can be awarded against defendants.  Tort reformers screamed doctors would flee, malpractice rates would skyrocket, and no one would want to do business in Missouri.  This never happened. But now, some in the Missouri legislature want to pretend that never happened and want to take another shot at caps.

History in the Cap in Missouri

In 2005, the Missouri Legislature passed HB 393 which placed  a $350,000 cap on non-economic damages in medical negligence claims.  In Watts v. Lester E. Cox Medical Centers , the Supreme Court of Missouri struck down § 538.210’s — the state’s medical malpractice noneconomic damage caps that became law in 2005 – for violating the Missouri Constitutions’ right to trial by jury.  The Court boldly overruled its own prior opinion in making that tough call.  Then, last September, the court struck down the state’s statutory limit on punitive damages.  This time, there was no debate.  The court was unanimous.

The thinking behind the cap was to avoid frivolous lawsuits largely in medical malpractice case.  Proponents struggle to point out these cases that were filed and not immediately dismissed.  Why?  Missouri, like Maryland, Tennessee, and many other states, requires an affidavit of merit in medical malpractice cases.  This means that within 90 days of filing a claim, the plaintiff must file an affidavit that there is a written opinion of a qualified health care provider maintaining that the “defendant health care provider failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances and that such failure” was a cause of the plaintiff’s damages.   Who is putting these kind of cases together?  Lawyers that would be out of business in the blink of an eye if they were constantly filing cases without a certificate of merit.

Constitutional Amendment

Some in the Missouri legislature think a state constitutional amendment is necessary.  I think there is pretty much no chance of this happening.   Senate Majority Floor Leader Ron Richard disagrees.  “Missouri will continue to be a judicial hellhole” if caps are not put in place, he said, saying a constitutional amendment at least capping punitive damages is a major goal of his for this legislative session.  I love this line from Jay Atkins, a lobbyist for the Missouri Chamber of Commerce and Industry: “If the trial bar would stop the practice of using punitive damages to line their own pockets, maybe we could find some common ground.”

I predict this effort will go nowhere.

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chiropractor2There are not that many chiropractor malpractice cases.  Is it that chiropractors are particularly competent health care providers?  No. Chiropractors’ negligence usually does not result in serious injury.   Most of the cases we get calls on are negligent manipulation cases where the injury is not particularly serious by viable malpractice case standards and proof of what caused what is usually an exacerbation of a preexisting condition and is a challenge.  That said, there are sometimes great claims to be made against chiropractors and, because they do not have the halo effect that doctors have, there is a very level playing field for plaintiffs filing suit them.  Stunningly, chiropractors are trusted less in most communities than lawyers (but ahead of Congress, of course).  Which really is saying something.

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erMany states are trying to carve out malpractice caps and different standards of care for emergency room doctors in medical malpractice cases.  The thinking starts out okay.  Emergency department doctors should be given the benefit of the doubt because things are happening so quickly.   But ER doctor are always getting the benefit of the doubt from jurors.  There is statistical evidence of this.  More importantly, the standard of care already bakes in the fact that things are sometimes happening at the speed of light in the ER.  That is why reasonableness is always based on all of the facts and circumstances.

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gelWith roughly 300 complaints currently pending before U.S. District Judge Mathew Kennelly, and several thousand expected to be filed before all is said and done, Judge Kennelly of the Northern District of Illinois has appointed four testosterone drug attorneys to serve as liaisons with state courts where dozens of additional cases are pending.  In an effort to increase coordination of the litigation, the role of the state-federal court liaisons will be to promote better coordination for the rapidly accumulating host of testosterone lawsuits  being filed.

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gavelstethescope2The first recorded opinion that I have seen in 2015 is a reminder to medical malpractice victims that there is rarely another option to hiring a lawyer in a medical malpractice case.

In Bagley v. Rochester General Hospital, a woman presented to the renal dialysis unit with complaints of abdominal pain, constipation, and complications from end-stage diabetic renal disease.  This was, regrettably, not a healthy woman.  The hospital did some tests and sent the woman to the emergency room believing that she had bacterial peritonitis as a result of being on dialysis.  The woman’s condition went downhill from there and she died of cardiac arrest.  Plaintiff contends that the real problem was a ruptured acute appendicitis, not peritonitis.

Let me start with a blunt statement: our law firm would never take this case.   Let’s assume it is exactly as the victim’s family says.  The hospital’s doctors screwed up and misdiagnosed the patient.  Even if this is true — I would bet that, although it is just a hunch on these facts —  I don’t think it is a viable medical malpractice action.

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sickwoman2Much has been said and written about Benicar and its sprue-like enteropathy side effects, symptoms very much like that of celiac disease.  Less has been said about two other Daiichi Sankyo manufactured medications, Azor and Tribenzor, though lawsuits are on the rise.

In November, an Iowa woman and her husband filed suit against the Japanese pharmaceutical company Daiichi Sankyo Inc., claiming that after being prescribed Azor in January 2011, she continued to take the hypertension medication as directed for some time.  During this time, the Plaintiff suffered several injuries including sprue-like enteropathy “with severe, chronic diarrhea resulting in substantial weight loss and malnutrition…” sustaining severe and permanent personal injuries in addition to constant pain and suffering.

What seems to be the problem?

Benicar, Azor, and Tribenzor are hypertension medications made from the drug olmesartan.  Since Benicar was first introduced into the U.S. drug market in 2002, over 11 million patients have been prescribed the popular Daiichi drug every year.  Researchers though, over the past few years, have discovered the use of Benicar and other olmesartan drugs have a high correlation with the development of several risky health conditions and harmful side effects.  Yet it still took until July 2013 for the U.S. Food and Drug Administration (FDA) to publish a public health notice warning olmesartan medoxomil users (marketed as Benicar, Benicar HCT, Azor, Tribenzor, and generics) of the  sprue-like enterophathy and related gastrointestinal (GI) problems allegedly caused by the hypertension medications.

The Iowa Plaintiff alleges she needed constant medical monitoring, screening, testing, and treatments and that she will require more in the future.  She and her husband the Azor lawsuit making several claims against Daiichi including design defect, failure to warn, gross negligence, negligence, negligence per se, fraudulent concealment, constructive fraud, violation of Iowa’s Consumer Protection Laws, unjust enrichment, and loss of consortium.  They are seeking relief from Daiichi in the form of compensatory, treble, and punitive damages, payment of attorney’s fees, and any other forms of relief so deemed fit by the court.

Some other Benicar and Azor side effects experienced by consumers include:

  • Chronic diarrhea
  • Sudden and severe weight loss
  • Electrolyte imbalance
  • Villous atrophy
  • Other GI problems regularly misdiagnosed as celiac symptoms

Symptoms such as chronic diarrhea, substantial weight loss, vomiting, dehydration, villous atrophy, and even colon perforation – all serious side-effects, typically stop once the medication is discontinued.  That sure has to tell you something about the correlation between the drug and the side effects.

What is the current status?

Most lawsuits against Daiichi Sankyo are currently being filed in state court, though there a few spread throughout U.S. District Courts nationwide. The number of cases is growing and a class action is inevitable.  But until such time, Daiichi Sankyo may have to face several different trial schedules.  A case management order issued in September, for a lawsuit filed by a woman who suffered chronic diarrhea and other side effects from Benicar HCT, appears the first trial date and may be sometime in early 2016.  The lawsuit originally filed in California was later removed to the federal court system.

Can I File a Lawsuit?

If you or a loved one has taken one of these medications and suffered any of these horrific side effects, you may be entitled to money damages for the harm you have suffered.  Reach out and speak to an attorney that can help you as soon as possible.  While we are in the very early stages of this litigation, the lawsuits seem to be mounting at a very fast pace and these cases can take a long time to investigate.  Speak with an experienced attorney and  better understand the facts.  Contact us at 1.800.553.8082, on reach out online here.

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synapse

Avelox  can cause peripheral neuropathy within days of use.   This condition is a type of nerve damage.  It is extremely serious.  It can cause muscle weakness, numbness and pain that can potentially last a lifetime.   We are rapidly learning more about the connection between Avelox and neuropathy and it is leading to lawsuits.  If you believe you have a potential claim, call us at 800-553-8082 or get for a free online consultation.

Avelox History

Avelox is a fourth-generation synthetic fluoroquinolone antibiotic. The drug is sold in over 80 countries worldwide and is available in intravenous, topical, and oral forms. It is effective at treating gram negative and gram positive bacteria such as Escherichia Coli (E. choli) and Streptococcus Pneumoniae. Avelox works by interfering with bacterial DNA gyrase. During this process, the drug binds to certain enzymes, preventing DNA replication.

Unfortunately, despite these positive benefits, the drug also interacts with a variety of different receptors in the central nervous system (including GABAa receptors).  GABAa receptors are found throughout the central nervous system. When activated, GABAa receptors cause hyperpolarization of the neurons, inhibiting neurotransmission of critical information. The net effect is that a patient begins experiencing peripheral neuropathy, a condition characterized by pain, burning, tingling, numbness, weakness, sensitivity, and lack of neuromuscular coordination. This condition often appears very quickly after taking Avelox and may last for an indefinite period of time. In many cases, the condition may be permanent.

Avelox was first approved by the United States Food and Drugs Administration in 1999. Recent lawsuits have alleged that as early as 2001, Avelox’s manufacturer, Bayer and Merck, were aware of the risks associated with Avelox and peripheral neuropathy and yet did nothing about it. In fact, in one of the first post marketing studies in 2001, researchers found a clear association between the drug and long-term nerve damage. Despite knowing these risk factors, Bayer and Merck continued to market the drug with little or no warnings in either the package insert or on the box itself.

What We Have Now Learned About Avelox and Neuropathy

In August 2013, the FDA required new warnings regarding the effects of Avelox and neuropathy. These warnings were supposed to be included in the package insert and on the product’s packaging material. The FDA safety announcement specified that “the U.S. Food and Drug Administration (FDA) has required the drug labels and Medication Guides for all fluoroquinolone antibacterial drugs be updated to better describe the serious side effect of peripheral neuropathy. This serious nerve damage potentially caused by fluoroquinolones may occur soon after these drugs are taken and may be permanent.”  Included in this announcement was data dating back to 2003 indicating a continued association between fluoroquinolone use and disabling peripheral neuropathy.

Unfortunately, for many individuals these changes come too late in the game. Many doctors have been prescribing Avelox for years, and for many patients, the effects of Avelox have become long-lasting and permanent.

Fortunately, some patients have decided to fight back, filing lawsuits against the manufacturers of Avelox in federal court alleging failure to warn, negligence, breach of express warranty, breach of implied warranty, fraud, negligent misrepresentation, fraudulent concealment, strict liability, violation of consumer protection laws, and negligent infliction of emotional distress. Many of these lawsuits are seeking both compensatory and punitive damages. It should be noted that these kinds of lawsuits can be complicated and should only be handled by an experienced personal injury attorney.

Getting Help from a Lawyer

These cases are new.  There is still a lot to learn about what happened and what Merck and Bayer knew about  Avelox and neuropathy.  But we believe these will be viable claims.  If you or a loved one has been seriously hurt or killed by taking the drug Avelox, you want answers and you want to be compensated for the harm that was done. Call us at 800-553-8082 or get for a free online consultation.

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hellokittyMcDonald’s has announced the recall of their Hello Kitty Themed Whistles due to choking concerns.  ‘Tis the season, right?  This recall will be followed by an onslaught of recalls as the holiday season gets underway.  All kinds of manufacturers rushing their product to market just in time for the shopping season to begin, with little to no concern for the dangers being imposed on our children.  But I digress…back to the recall at hand.

McDonald’s has recalled approximately 2.5 million plastic Hello Kitty figurines.  The figurines contain a whistle that can make sounds when inhaling or exhaling through the mouthpiece.  McDonald’s has received two reports of children who coughed out pieces of the whistle that they had sucked into their mouths.  Consumers can return the whistle to McDonald’s for a free replacement toy, yogurt, or bag of apple slices.

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judge1Everyone understands that people can be productive much later in life than they could just 20 or 30 years ago.  Thirty-three states have laws with a specific retirement age for judges.  The youngest and most common mandatory retirement age is 70 years-old.  The new reality is a good one: 70 is just not that old anymore.
The reality is that there are only so many good judges out there.  Judicial vacancy rates are very high in some states. The idea of an experienced jurist sitting at home who is still fully competent to sit on the bench depresses a lot of us who really want judges who can call the balls and strikes and give the parties a fair trial.   So states have been working to change these mandatory retirement age laws.
How is it going?  These efforts keep failing spectacularly.  In Louisiana, they tried to fix this problem this November with a ballot, with the Louisiana Mandatory Retirement Amendment by eliminating mandatory retirement at age of 70 for judges in Louisiana.  It failed spectacularly, as did a similar measure in Hawaii, to raise retirement age from 70 to 80.  New York  made a similar effort in 2013 and the measure was trounced in Reagan over Mondale proportions, 58-42.  Ohio tried in raise the age to 70 from 76 in 2011 and that also failed.

Why These Laws Are Not Being Changed

The first problem is that many of these states have embedded the idea of a retirement age for judges in their state constitutions.   Now, there is a judicial disability commission in every state, so getting rid of incompetent judges, while tough, is doable.   In the days of these state constitutions, you were pretty much stuck with a judge until he — it was always a he – died.  So, as a result, the law is harder to change because the state constitution has to be amended.  What this requires varies from state-to-state.  But typically it requires the bill be passed by both houses, sometimes by super majority, signed by the governor, and put on the ballot.
But, as you see, even when these initiatives get on the ballot, they struggle mightily.  Why is that?  I couldn’t tell you.  Certainly, this is a clean issue.  There are no lobbyist or muckrakers weighing in because no one really has a horse in this race besides the judges and people who generally want justice.  Which means there is no money in it!
I did a little research on the question while writing this post.   Raising the age certainly would mean more testing of the judges which they would find offensive.  But that concern is not filtering down to the lay voter who is making a call on this without any real context or perspective.  Why is Jane Q. Public against this?  No clue.

Isn’t It Illegal to Discriminate Based on Age?

It is illegal to discriminate on the basis of age.  The Age Discrimination in Employment Act expressly prohibits employers, including the state,  from terminating any employee because they are too old (if they are over 40).  But there are exemptions and one of them easily lassos judges: individuals who are appointees on the policy making level or any person elected to public office.   There is a lot of intellectual debate about this but, ultimately it does cover judges.

End Run Around the Rule

In Maryland and many other states, there is a way around mandatory retirement.  It is a very common practice in Maryland to allow retired judges to return to our trial courts and even Maryland’s highest appellate court to hear cases.  These judges are paid by the day.  But rarely is money an issue one way or the other for these judges.  They want to keep doing it because they enjoy it and it is a part of their identify.
But what we have is the worst case scenario.  A rule that judges can backdoor which circumvents the will of the legislature or, with these ballot initiatives, the people.
Ultimately, it seems like the best solution would be to modify the ADEA to exclude judges.  But as I write that, I immediately want to take it back.  You cannot backdoor what appears to be the will of the people on an issue as critical as judges.  The only thing that can happen to really change this is for people to better understand that 70 no longer makes any sense.  Since judges over 70 do not have lobbyists or PR people, this is just something that is going to come with time.  In the meantime, we are going to have a lot of qualified judges sitting at home twiddling their thumbs.  And that is a sad thing.