Print this articleI just finished George Lakoff’s book, Don't Think of an Elephant! Know Your Values and Frame the Debate. Channeling my inner Joe Biden, I loved the book; I hated the book.
I hated the book because as much as Lakoff obviously tried to fight it, he does too much of the “no reasonable person could think this way unless they were being manipulated” spiel. It is just too condescending and partisan for my tastes, which I think takes away from some of the luster of the book for me.
A topic near and dear to my heart, tort reform, is the classic example. Lakoff writes (on page 30 for those of you following along at home) that conservatives are not focused on tort reform because of their disdain for the volume of lawsuits, but because they want to take money out the coffers of progressives by taking away the attorneys’ fees available to trial lawyers. Obviously, medical malpractice and accident lawyers generally contribute heavily to progressive candidates.
The thought had never occurred to me that tort reform is a back door to bleed progressive causes and I’m sure there is some truth to it. But the notion that this is the primary source of the motivation for tort reform among conservative thinkers ignores the magnitude of the animosity in many circles of our society – including people smarter than me – with frivolous lawsuits and, to a lesser extent, large jury verdicts.
This problem is compounded by the repeating of verdicts that are completely taken out of context (the McDonald’s verdict), fabricated (the Stella Awards), or simply rare. Compounding this problem further is the fact that celebrities tend to use lawsuits as the resolution mechanism of first choice, leading Americans to assume that these de facto aliens are a microcosm of our country.
Lakoff suggests that trial lawyers need to frame the issues differently. Consumer protection and personal injury trial lawyers should be framed as public protection lawyers. Under this frame, when tort law tries to put a cap on non-economic damages, they are taking away the constitutional right of juries to decide justice. Large settlements and verdicts result in greater public safety because the impact of accident, malpractice and, most importantly in this context, products liability cases go beyond the case at hand and are a form of public protection law.
The problem goes beyond framing, though, because the real issue in the tort reform battle is that there are not enough people to make the frames. Trial lawyers are the wrong messengers. Trial lawyer lobbyists? Worse. So who is left?
The fuel that fills the tort reform train is that everyone on the ride has never suffered a catastrophic injury as the result of the negligence or willful disregard for their safety (typically consumer or med mal context) of someone else. Those folks who have suffered a catastrophic injury often do come forward and make compelling witnesses for the unfairness of many tort reforms, most notably caps on noneconomic damages. But most people who have suffered a grave injury have enough to deal with, without having to the carry the anti-tort reform ball. So that leaves a few compelling proponents against a lot of people who think that their insurance costs and what they pay for drugs and medical devices are due to greedy personal injury lawyers and their clients. And this is a hard obstacle to overcome.
There has been evidence since 2002 that drugs in Seroquel’s class caused a 3.34 times greater risk of diabetes than other antipsychotic drugs (which is what Seroquel is supposed to be prescribed for in the first place). In September 2003, the FDA began mandating Seroquel patients are at great risk for type 2 diabetes.
The Seroquel diabetes class action lawsuit alleges that Seroquel’s manufacturer knew that Seroquel caused a high occurrence of diabetes, but failed to adequately warn doctors or patients of the risk. As is often the case, the other countries' version of the FDA required a more explict warning about the risk of type 2 diabetes with Seroquel. The Japanese warning specifically informing doctors of the need to monitor Seroquel patients. The Japanese label also indicates that Seroquel is contraindicated for use in patients with diabetes or a history of diabetes. In other words, Seroquel's manufacturer felt comfortable providing doctors and Seroquel patients in the United States less information than Japanese Seroquel patients were afforded. Why? Two words: market share. The more bad information about Seroquel that was made available, the less prescriptions - particularly the off-market prescriptions for Seroquel which is where the real money is in Seroquel sales.
There is a nationwide MDL Seroquel lass action lawsuit pending in Florida. Many plaintiffs' lawyers believe that a settlement in the Seroquel class action lawsuits could be coming down the pike although no one knows exactly when (or even if) such a Seroquel settlement might occur. If you think you may have a Seroquel type 2 diabetes case and would like to be included in the Seroquel class action, you can call one of our Seroquel class action lawyers for a free consultation at 800-553-8082 or click here for a free online Seroquel consultation.
The Baltimore Sun reports today that Maryland Insurance Commissioner Ralph S. Tyler ordered nine premium finance companies - companies that finance the Maryland Automobile Insurance Fund premiums, which consumers are still required to pay in full - to stop charging ridiculously high finance charges. Two of these finance companies also must refund money to consumers because, incredibly, they charged interest on policies that were never issued. The Baltimore Sun article suggests this will save MAIF’s customers about $100 a year.
These finance companies exist due to a quirk in the law that requires MAIF to make customers pay in full for their premiums. Since most consumers cannot afford this, these drivers turn to predatory lending companies. Everyone from MAIF itself to Ralph Tyler has argued that MAIF should allow its insured drivers to pay premiums over time, like virtually all of the rest of us.
Unfortunately, MAIF drivers, who typically have bad driving records and/or bad credit histories, have no lobbyists in Annapolis. MAIF’s competitors (particularly, as this blog discusses, State Auto) and these finance companies do have lobbyists, which is why this nonsense has been allowed to continue. Hopefully, 2009 is the year that the Maryland legislature finally gets its act together and gets rid of this nonsense.
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Our lawyers are now investigating potential Spiriva HandiHaler lawsuits after the Journal of the American Medical Association, underscoring long held concerns, reported that Spiriva HandiHaler users may face increased risk of heart attacks or strokes and other cardiac problems.
The Spiriva HandiHaler (generic: tiotropium bromide inhalation powder) is an inhaler drug used by millions of people with emphysema and bronchitis. The Spiriva HandiHaler was approved in 2004. Along with its cousin Atrovent, which has been around for over 10 years, the Spiriva inhaler is used once or more daily to relax muscles and open airways in a patient’s lungs for patients with emphysema and chronic bronchitis (which are conditions under the umbrella of chronic obstructive pulmonary disease - COPD).
All indications are that both of these products – Spiriva and Atrovent - are efficacious for the purpose of opening the patient’s lungs and facilitating breathing. This new study, however, raised grave concerns that these inhalers could be associated with potentially fatal cardiac conditions. The study looked at other drug trials and found that people taking Spiriva or Atrovent had a 58% higher risk of developing cardiac problems, with far reaching complications including strokes, heart attacks and death.
Stating the patently obvious, a 58% higher level of risk is unlikely to be the product of mere chance. This is particularly true with this JAMA study on Spiriva and Atrovent because this study looked at a number of studies, so the number of patients included in the analysis was large. Approximately 1.8% of the people on either Spiriva or Atrovent in the JAMA study developed fatal or nonfatal heart problems over a period of several weeks to several years. Patients on different drugs or a placebo have only a 1.2% risk.
Yet Boehringer Ingelheim, who manufactures the Spiriva and Atrovent inhalers, and Pfizer, who markets these inhalers, have done their own analysis just days after the JAMA study was released (coincidentally?) analyzing 30 clinical trials that suggest that the Spiriva inhaler does not increase cardiac risks.
To make matters more confusing, the FDA said back in a March MedWatch alert that using Boehringer Ingelheims’s own data from 29 studies of about 13,500 patients found that Spiriva is linked to an excess risk for strokes. Specifically, this data found that there was an excess risk of stroke for 8 patients of every 1,000 taking Spiriva for 1 year, compared to 6 patients of every 1,000 taking a placebo. This data is not as overwhelming as the 58% figure suggested by the JAMA study but it still is cause for concern.
There is no question that many patients with COPD need pharmacological assistance with their disease. Of the 24 million Americans with COPD, less than half are using medication to assist with their condition, which is one reason why we have 100,000 deaths a year in this country from COPD. And there appears to be no question that Spiriva is effective in fighting COPD. But our lawyers’ question is whether Spiriva's warning adequately informed patients of the increased risk of cardiac problems. Did they even modify their label after the FDA’s MedAlert earlier this year? Our lawyers also want to investigate whether Spiriva was properly tested for cardiac concerns, because there are other inhalers available that have not been linked to heart attacks and strokes.
Our lawyers believe there is enough information out there to begin evaluating Spiriva cases with an eye towards a potential class action lawsuit. If you would like to speak to a Spiriva lawyer, call 800-553-8082 or click here for a free Spiriva lawsuit consultation.
I have received a number of calls from clients with personal injury claims against AIG fearing their claims are unprotected.
Yesterday, we got a call in one of our AIG cases. Someone from Resolute Systems called and said that AIG had given them the assignment of settling large cases. They are setting up settlement conference days in Philadelphia for some pending AIG cases. We were given November 5-6 as dates for these mediations.
I suspect AIG is looking to capitalize on the panic and induce below market settlements. I have no proof of this.
The reality is that the financial problems at AIG are not with the 70 AIG insurance companies. In fact, these are independent marketable assets that would likely continue to be maintained should AIG declare bankruptcy. Practically, I think a bailout bill will get passed to solve the AIG problem. But either way, the chance of claims being impacted by all of this is a relatively remote possibility.
I think people with claims are understandably concerned. Certainly, no one in their right mind would agree to a structured settlement with AIG. But I think the risk of claims not being paid is relatively low, both because of the safeguards that are in place in every state to secure claims, and because I think the AIG insurance companies will continue in some form no matter what the outcome of the bailout.
Maryland Insurance Commissioner Ralph Tyler was kind enough to be a guest speaker at my insurance law class at the University of Baltimore last year and said his most important job is making sure Maryland insurance companies are solvent. Last year, the most important part of Ralph Tyler’s job was not on anyone’s radar screen. Now, it is front and center.
These are scary economic times for a lot of people. But insurance companies have been doing quite well. I understand the concerns of people who have pending AIG claims, but I think the doom and gloom talk about AIG claims will not be prophetic.
Last year, my Dad was in an auto accident where the Defendant admittedly ran a red light. Believing in his superhuman ability to drive an automobile, he did not have collision insurance on his car.
The insurance company, which shall remain nameless (Ameriprise), denied liability claiming that my father did not react quickly enough to avoid the accident Ameriprise's theory of the case was that Dad is 71 years-old and therefore must have reacted too slowly to avoid the accident. What Ameriprise didn’t know is that my father was driving home from playing three grueling sets of tennis in the summer heat with me. I'll bet money he can react better than the Ameriprise adjuster that denied the claim.
So I sent them a draft complaint and discovery in the case and they quickly changed adjusters, accepted liability, and threw in $500 for his injury claim even though he never sought any medical treatment (which we never would have asked for had they simply paid on the property damage claim).
But the whole thing got me to thinking about the incredible disadvantage property damage victims find themselves facing in these situations. No halfway decent accident lawyer is going to consider getting into a property damage liability dispute case. So property damage victims are forced to file a lawsuit on their own. In Maryland, if the claim is over $5,000, there are procedural requirements that are going to slip up the vast majority of property damage claims made by plaintiffs.
I do not have any remedy to this problem but I did put together a list of tips for those that find themselves in a similar situation handling your own property damage claim without a lawyer that you can find by clicking on the link in this paragraph.
The News-Democrat (St. Louis and Southwestern Illinois) has a story about accident lawyers trying to get access to car and truck accident police reports in an effort to obtain clients. These personal injury lawyers look through these police reports on automobile accidents, get the names and addresses of people who have been injured and might have a lawsuit, and then write them a letter soliciting their case.
"Insurance companies can immediately contact people after an accident, and people should have the option to know what their rights are, if they want to talk to a lawyer," said Michael Hupy, a Milwaukee accident lawyer who uses this technique to attract new clients. "Many people still think you have to pay a fee to talk to a personal injury lawyer."
Is this ambulance chasing or, as Mr. Hupy suggests, simply a means of giving personal injury lawyers access equal to that of the insurance companies to accident victims?
While I agree with everything Mr. Hupy’s says, I’m still going to go with ambulance chasing. When accident lawyers send these cold call letters, it forever alters the perception of personal injury lawyers and their victims in the eyes of its recipients. This bad perception of accident lawyers as ambulance chasers is also the fuel for tort reform.
I wrote at one point, “I’m not necessarily saying it should be illegal.” But upon further reflection I do think there should be an ethical rule against soliciting accident victims by direct mail because you found their name in an accident report. In fact, I could argue that the rule to not advertise in a manner which would degrade his or her dignity as a lawyer already applies these letters.
When I first started practicing law, I thought some of the attorney ethical rules were mumbo jumbo because they are a little self aggrandizing. I have never thought lawyers were superior to plumbers, car mechanics or Indian chiefs. So why should lawyers have different rules than anyone else? The answer is because the public perception of lawyers is always on a tight rope. Personal injury lawyers are selling injury victims down the river when they do not adhere to the highest ethical standards.
Overlawyered links to a post called Munchausens by Attorney. The blog, Throckmorton, is written by a doctor who says he is a “mere foot soldier stuck in the medical-legal battlefield.” I don’t know what this means, either. But it is a pretty decent blog.
The post deserves a link because the title is so funny. (Warning: do not read the comments to the post unless you are looking to lose a few IQ points.)
But this post is about MY reaction to the blog. When I hear about a lawyer doing something awful, I think to myself, “Oh my, I hope someone catches and stops the person who does it.” I think that is the response most lawyers have. But when doctors hear about a doctor habitually committing medical malpractice, their instinct is to defend the doctor and attack the accusers (not the victims, but their medical malpractice lawyers).
Maybe being a doctor is more of an intrinsically self-identifying profession because at the core, doctors help others in a more direct way than almost any profession, and this makes them more loyal to fellow doctors. In contrast, a lawyer just moved into my neighborhood. He has three kids. I identify with him more because he has three kids (like me) than I do because he is a lawyer. If you see a tombstone that mentions the person was a doctor, I don’t think you would be surprised. But you would find the mention of someone being a lawyer a little odd, right?
So that all makes sense. But here’s the thing: according to the federal government, medical malpractice is killing like 100,000 people a year and causing serious injury to countless more. So at some point, regardless of where you are on medical malpractice lawsuit reform, doctors need to spend less of their energy firing out at medical malpractice lawyers and insurance companies and focus more of their energy and attention on patient safety initiatives.
I received this email from a personal injury lawyer in Maryland this morning:
I have an MIA complaint involving Colossus. Allstate offered the number provided by Colossus and now, of course, refuses to produce any Colossus manuals, etc. Do you have some useful Colossus materials?
I don’t. Maryland’s bad faith law is new and it makes relevant lines of inquiry from Maryland accident lawyers that before would have been completely irrelevant including, as this email suggests, how Allstate values first party uninsured or underinsured accident cases. If any lawyer out there has anything that might be of use that I could pass along, will you drop me an email at ronmiller@millerandzois.com?
As a side note, the American Association for Justice ranks Allstate as the worst insurance company in the country (for consumers, at least). That may be true nationally, I don’t know. But I don’t think it is true in Maryland. I’d rather draw Allstate in a personal injury case in Maryland than I would a lot of other insurance companies. Name names? Sure, why not? It is Friday. I would rather have Allstate then Progressive, MAIF, State Farm, Unitrin, or GEICO.
GEICO is a new addition to my "better than Allstate list." At some point along the way in the past three years, GEICO stole some pages out of that McKinsey & Co. report that told Allstate to put on boxing gloves and added a few pages of their own. Their in-house Maryland lawyers (Besok & Mullen and John Dahut & Associates) are good lawyers that are easy to deal with but we are filing too many lawsuits in GEICO cases that should have settled before a lawsuit was filed. The message for accident lawyers, as always: if the offer is not fair, encourage your client to file a lawsuit. Too many personal injury lawyers choose the path of least resistance of pushing to settle the case even when the settlement is not fair. This is the reason why the boxing gloves paradigm works.
In his blog the Art of Advocacy, Baltimore lawyer Paul Mark Sandler suggests a counter to the slippery slope argument: "The 'slippery slope' argument falsely assumes that once you take a moderate first step in a particular direction, a catastrophic chain of events will follow. In many cases, a better metaphor would be a staircase with many safe steps along the way."
I like this metaphor. My problem with slippery slope arguments, is that in real life, slopes are rarely slippery. Looking at this same metaphor through a different lens, George Will wrote earlier this year that life is lived on a slippery slope: taxation could become confiscation; police could become gestapos. But the benefits from taxation and police make us willing to risk that our judgment can stop slides down dangerous slopes.
Believe me, I know plaintiffs' lawyers have made the slippery slope argument as well. I have myself. But it seems like more of an argument I hear from defense lawyers.
The Baltimore Injury Lawyer Blog last week published a comment written by a State Farm in-house counsel, issuing a rebuttal of sorts about a trial John Bratt tried against State Farm last month.
John's verdict in this case was 8 times the State Farm offer. State Farm's lawyer argued in his comment that it was not a big win for us because the jury only gave the plaintiff her medical bills. The crazy thing is that we agree. John did not view it as a big win, he asked for and was hoping for a lot more. But if we get a verdict that is 8 times the State Farm offer and both our lawyers and State Farm's lawyers think they won, what exactly does that say about the fairness of their offer? I think it calls into question the accuracy of the evaluations State Farm is making in Maryland accident claims.
The message, as always, for Maryland accident lawyers with claims against State Farm and other like minded insurance companies: try more cases.
I read in the paper today that Dale Adkins III and Emily C. Malarkey, both with Salisbury, Clements, Bekman, Marder & Adkins in Baltimore, filed a wrongful death medical malpractice case against an OB/GYN in Salisbury.
We also have a medical malpractice case pending against the same doctor. In April, a jury in Baltimore found this doctor negligent in yet another medical malpractice case. We have previously reviewed and rejected another claim against this same doctor, not because medical malpractice could not be established but because the damages – while significant – were not of the magnitude that would make a medical malpractice lawsuit.
I’m not naming the doctor because our goal with this blog is not to embarrass people or invade their privacy. I do not name plaintiffs or defendants unless they are a company or hospital. And I’m told this doctor appears to be a decent guy. But this doctor underscores that high malpractice rates are not from medical malpractice lawyers filing frivolous lawsuits. Instead, the problem is that 3% of doctors in Maryland are responsible for half the medical malpractice payouts (data from earlier this decade but I suspect it is still holding true). If these doctors are [fill in your own phrase for politely asked to stop treating patients], malpractice premiums in Maryland would plummet.
If a lawyer is not effective in trial, there are lots of other productive things the lawyer can do to make a contribution in the field of law. Doctors who shouldn't be treating patients do not need to get a job a Burger King. There are invaluable things that many doctors do who don't treat patients. We need a plan to transition a small minority of doctors into hopefully a related line of work where they can be productive but where they cannot harm patients.
It is trite but it true: anyone can make a mistake. But how many is too many?
Last month, the Judicial Panel on Multidistrict Litigation (JPMDL) created MDL for the 11 NuvaRing lawsuits pending in federal court. Discovery for federal NuvaRing lawsuits – both pending and future - will be centralized for discovery purposes in the Eastern District of Missouri before Judge Rodney W. Sippel. More NuvaRing lawsuits are pending in New Jersey after plaintiffs defeated defendants’ efforts to remove all NuvaRing lawsuits to federal court. (Read more on New Jersey NuvaRing lawsuits.)
These NuvaRing lawsuits involve blood clot-related injuries to women such as pulmonary embolisms, strokes, heart attacks, and deep vein thrombosis (DVT). Because NuvaRing is a birth control device, many of these injuries are occurring in young woman who are rarely at risk for non pharmacological induced blood clots.
The challenge many products liability lawyers face in drug and medical device injury cases is that the patient population using the drug or device is more likely to suffer from the injury allegedly caused by the drug. Many patients on Seroquel, for example, are more likely to have diabetes because Seroquel is often prescribed for older patients (Seroquel is ubitiquous in many nursing homes). These patients are more likely to have diabetes than the general population. So while a plaintiffs’ lawyer might be able to show that Seroquel causes diabetes, it might be a struggle to show that Seroquel caused diabetes in that particular patient.
The Prozac suicide cases are an even better example. Eli Lilly argues that many on Prozac are more likely to commit suicide with or without the Prozac so we should not be surprised that patients on Prozac might commit suicide in greater numbers than the patient population. With respect to specific causation, the reason the patient was put on Prozac in the first place is claimed – sometimes for good reason – as the real etiology of the suicide.
Many of the NuvaRing cases are not going to have difficulty specifying causation problems because women who are on birth control are generally – although obviously not always – relatively young. Plaintiffs’ lawyers handling NuvaRing cases are going to have an easier time proving specific causation if general causation is established.
Judge Edward A. DeWaters Jr. died on Saturday of pancreatic cancer yesterday. Judge DeWaters was appointed in 1972 and retired in 2001. Judge DeWaters was at one time the chief judge for both Baltimore County and Harford County.
I never had a case before Judge DeWaters. My Dad, who grew up in Bel Air near Judge DeWaters, attended a high school reunion on Saturday in Bel Air where the dominant topic was obviously Judge DeWaters' death. He appears to have been well liked respected not only during his 29 years as a judge but throughout his entire life. My Dad, who was one year older than Judge DeWaters, commented that of anyone he knew growing up, Judge DeWaters was the person he would have be the least surprised to become a judge.
A Mass of Christian burial will be offered at 10 a.m. Thursday at St. Stephen Roman Catholic Church, 8030 Bradshaw Road, where he was a member.
I was tagged by the Drug and Medical Device Blog with an Internet meme (I don’t know what this is but I get the idea) asking Maryland Injury Lawyer Blog to (1) to identify five non-law blogs that we find to be interesting, and (2) to tag five lawyers to do the same thing.
I’m glad to be included by the Drug and Medical Device Blog. I’ve made fun of this blog on many occasions because of its “ultra partisan” view on drug and medical device injury litigation. How do I know that their views are uncompromisingly pro-pharmaceutical company? Because I read every single post they write. Anyone involved in products liability litigation would be foolish not to read this blog. It is the most well-written and informative blog discussing drug and medical device litigation by a landslide. It is also – to the extent such a blog can be – funny and entertaining, which makes this blog all the more maddening to me: anyone smart and funny should be obligated to see the world though the same lens that I do. This should be a rule.
These are the five non-legal blogs I like:
The Huffington Post – I do not like Michael Moore, even though we largely agree politically, because I think he is knee jerk closed minded in his view. I think the Huffington Post falls in this trap far too often, as well. Yet I find myself sneaking over to read it every day since Governor Palin was nominated. I’m like the guy looking at "The Kramer" painting on Seinfeld: “It hideous, yet I can't turn away!"
Deadspin – An outside-the-box sports blog that presents the sports news of the day with colorful and funny commentary
The Daily Dish – I have mixed feeling on Andrew Sullivan’s views of the world but I just really enjoy his writing. (Same goes for George Will, even though I can’t understand half of what he writes.)
The Severna Park Health & Fitness Blog – I have a horse in this race but Club One Fitness' blog is good on health and fitness and local Severna Park news (where I live).
The Anonymous Lawyer Blog – You might argue that this is a legal blog, but it’s fiction, so I’m going to include it. The blog premise is that the hiring partner of a large law firm blogs about his day at the office. The author, a recent law school graduate, has lost interest in the character so there are no new posts but if you have never read it, you can jump in the archives. If you have ever done defense work at a large firm, you will almost certainly find it funny.
The Five Blogs I Tag:
The Illinois Trial Practice Blog – Evan Schaeffer keeps this discovery and trial tactics blog on message but hopefully he will indulge us by playing along.
The South Carolina Trial Law Blog – Dave Swanner’s blog on running a law practice and maximizing the value of personal injury cases
Overlawyered – I disagree with Walter Olsen on a lot of issues but this is a quality blog that makes many good points and points out abuses to the legal system that we all need to be concerned about.
The Baltimore Injury Lawyer Blog – A new Miller & Zois blog written by John Bratt that I think is already one of the best trial practice blogs out there. Check it out for yourself.
Maryland Injury Lawyers Blog – This is Goldberg, Finnegan & Mester’s blog on Maryland personal injury law. Sure, they basically stole our unique, outside-of-the-box blog name by adding an “s” but they are our friends and they are really good accident and malpractice lawyers.