LawSquawker • Thomas & Wan's Blawg

Thomas & Wan files new Zicam lawsuit with 117 clients

2009-06-22T18:42:00.004-05:00

Our firm filed a new Zicam lawsuit today with 117 plaintiffs against Matrixx Initiatives for their permanent loss of smell from using Zicam Cold Remedy. The Arizona Republic has a story here and the WSJ MarketWatch has a story here.

Zicam Client in Houston Chronicle

2009-06-19T08:59:00.002-05:00

The Houston Chronicle interviewed one of our Zicam clients here. The story highlights the safety issues and dangers of losing your sense of smell permanently. We represent many others like Mr. Ehler who need their sense of smell at the workplace such as chefs, firefighters, nurses, and refinery workers.

Fox News Story on Zicam

2009-06-16T22:23:00.003-05:00

We were interviewed last night on Fox News Houston regarding yesterday's announcement of Zicam's dangers and permanent loss of smell. Here is the full story.

US FDA Warns About Zicam

2009-06-16T15:58:00.001-05:00

The U.S. FDA has just come out with an advisory warning people not to use Zicam products containing zinc as they are linked to permanent loss of smell. Read the full advisory here.

We represent over 100 people who have permanent loss of smell and taste from using Zicam. This advisory confirms what our clients and Thomas & Wan have always known--these are dangerous products that must be taken off the market. Even to this day, Matrixx refuses to put a warning on the products that they can cause permanent loss of smell and taste. We are currently in litigation in Arizona state court over several of these cases.

Mercy from the Law

2009-06-16T08:52:00.003-05:00

Well, this is a first. I got pulled over yesterday for making an illegal turn right in front of the courthouse. Always a great way to start trial. Anyway, my DL and insurance were in the back of the truck with our trial boxes. So, I go back there, and the officer gives me a strange look and says, "I'm going to let you go this time...it looks like you got bird poop all over the back of your suit." Pepito saves the day! Now I know why I love animals so much. They are always looking out for us dumb humans.

The "best" health care in the world?

2009-06-05T09:11:00.002-05:00

We spend a lot of time in McAllen and looking at medical records from McAllen healthcare providers. It is always interesting to see that injuries, quite frequently occur not from the primary illness but from a test or procedure gone awry. This eye-opening article from the New Yorker may explain this phenomenon.

Caps Don't Save Money

2009-04-22T08:59:00.003-05:00

The Dallas Morning News has a good story on getting to the real issues in high health care costs, and it's not so-called greedy lawyers...it's the insurance companies. Damage caps do not work--they only punish children, retired people and low-income people. They don't work, period.

Insurance Industry Tricks of the Trade

2009-03-12T16:39:00.003-05:00

Want some free information on how the Insurance industry can unfairly deny your claim? The American Association for Justice has a great .pdf handout on how people become the victims of unfair and illegal insurance denials...it's called Tricks of the Trade. It's the kind of stuff that we as lawyers have to deal with sometimes, and it can be really frustrating.

Supreme Court Knocks Down FDA Preemption

2009-03-04T16:12:00.003-06:00

Today, the U.S. Supreme Court held that FDA drug regulation does not preempt common law claims in state courts. This is a huge victory for consumers! The Court's decision in Wyeth v. Levine allows consumers to move forward with lawsuits against drug companies that sell defective drugs. I am happily surprised at the 6-3 outcome, and the Court in its wisdom found that Congress never intended for FDA labeling rules to preempt lawsuits in state courts.

The American Association of Justice has more:

Writing for the Court, Justice Stevens said:

“If Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express preemption provision at some point during the Food, Drug and Cosmetic Act’s 70 year history…Its silence on the issue, coupled with its certain awareness of the prevalence of state tort litigation, is powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness.”

Justice Thomas, in a concurring opinion, also dismissed the Wyeth preemption argument, calling it unconstitutional:

“Because such a sweeping approach to pre-emption leads to the illegitimate – and thus, unconstitutional – invalidation of state laws, I can no longer assent to a doctrine that preempts state laws merely because they ‘stand as an obstacle to the accomplishment and execution of the full purposes and objectives’ of federal law.”

The Plaintiff in the case, Ms. Levine, was a musician who lost her arm and her livelihood due to the failure of Wyeth to warn about the dangers of Phenergan...more from the NYT:

Ms. Levine’s suffering began in the spring of 2000 when, suffering from a migraine, she visited a local clinic for a treatment she had received many times: Demerol for pain and Phenergan for nausea.

If Phenergan is exposed to arterial blood, it causes swift and irreversible gangrene. Therefore, it is typically administered by intramuscular injection. Ms. Levine’s lawyers said an intravenous drip is also quite safe.

But a physician’s assistant used a third method, injecting the drug into what she thought was a vein, using a technique known as “IV push.” The assistant apparently missed a vein and hit an artery instead, causing Ms. Levine’s right hand and forearm to turn purple and black in the following weeks, leading to amputation of much of her arm.

The F.D.A.-approved label warned that “inadvertent intra-arterial injection” can cause gangrene requiring amputation, but it did not rule out administering the drug by the “IV push” method. The Vermont trial judge instructed the jury that compliance with F.D.A. requirements did not establish that the warnings on the labels were adequate.

Justice Stevens noted that the trial record contained evidence of at least 20 reports of amputations similar to Ms. Levine’s since the 1960’s. Phenergan was first approved in 1955.The justices who sided with Ms. Levine on Wednesday said that “Wyeth could have unilaterally added a stronger warning about IV-push administration” without running afoul of federal regulations. Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined Justice Stevens, while Justice Clarence Thomas filed an opinion concurring in the overall judgment.

Preserving the Right to a Jury Trial

2009-02-23T16:11:00.003-06:00

Something Congress is doing right this month...preserving your right to a jury trial...from The American Association for Justice:

Consumers No Longer Forced to Sign Away Their Rights Under Arbitration Fairness Act

Bipartisan bill will protect Americans like Jamie Leigh Jones, John Donahue from abusive corporate practices

Washington, DC – Countless Americans will no longer be forced to give up their legal rights and enter unfair arbitration agreements under bipartisan legislation introduced today in the U.S. House.

Mandatory binding arbitration clauses are hidden in the fine print of everything from cell phone, credit cards, franchise and employment agreements to nursing home care contracts. These clauses force consumers or employees to give up their right to take their case to court in the event there is a dispute with the corporation.

The bipartisan Arbitration Fairness Act of 2009 (H.R. 1020), introduced by Rep. Hank Johnson (D-GA), will ensure that the decision to arbitrate be made voluntarily and after the dispute has arisen, so corporations cannot manipulate the arbitration system in their favor at the expense of consumers.

“The Arbitration Fairness Act will prevent negligent corporations from stacking the deck against consumers who unknowingly sign away their access to justice,” said American Association for Justice President Les Weisbrod. “Arbitration can only be an effective means to resolve disputes when both parties agree voluntarily, not when it is forced upon consumers in secret to limit their rights.”

The Arbitration Fairness Act will help people like Jamie Leigh Jones, who was raped, drugged, beaten, and then confined to a shipping container by KBR/Halliburton employees while working in Iraq. Because of a clause placed in her employment contract, KBR tried to force Ms. Jones to submit to a binding, secret, non-appealable arbitration. Ms. Jones had to fight to obtain access to the justice system because she unknowingly signed an arbitration clause as part of her 18-page employment contract.

John Donahue was a 93-year-old nursing home resident in Massachusetts. Because a nurse did not follow standard policy when operating a mechanical lift, he experienced an eye injury so severe that it required removal of his eye, and the infection caused by this injury later killed him. Once Mr. Donahue’s daughter pursued the case on behalf of her father’s estate, the nursing home presented what it claimed to be a document, which Mr. Donahue, at age 91 and without any family members or any other witnesses present, had supposedly signed. The nursing home was forcing mandatory binding arbitration on its own terms.

Americans overwhelmingly disprove of mandatory binding arbitration agreements. When consumers learn that the company picks the arbitrator, they give up their right to take the case to court, and binding arbitration applies even if they are seriously injured, 81 percent disapprove. The Arbitration Fairness Act also has wide support across party lines with no statistical difference between Democrats (+38) and Republicans (+37). AAJ’s polling can be found here

Uninsured Drivers on the Rise

2009-02-20T16:45:00.004-06:00

The Insurance Research Council has come out with a study that rising unemployment means more drivers who choose to drop their car insurance. As if you didn't have enough to worry about on your drive home...

We have been telling our friends, family and clients to always buy as much uninsured/underinsured coverage as possible. Many times you can get a lot of coverage for literally $15 extra per six-month period of your insurance premium. I think I have $300,000/600,000 or $500,000/$1,000,000. Get as much coverage as you can. We have had many clients who are hit by people without insurance or who have been victims of hit-and-runs. It's extremely sad and frustrating. Without uninsured coverage, those clients were out of luck to get any compensation or medical bills paid.

Thomas & Wan Wins Jury Verdict in Trip & Fall

2009-02-19T17:03:00.003-06:00

The lawyers of Thomas & Wan are pleased to announce a jury verdict in Jasper County, Texas of over $185,000 on behalf of their client who broke her ankle in two places after tripping on a dangerous ramp at a senior center. The ramp was in deplorable condition for seniors, disbled people or even able-bodied people. The ramp had rotted and missing wood, raised nails, wobbly and short handrails, an uneven surface and was too steep--all in violation of standard Texas and Federal building codes and the Americans with Disabilities Act. The client may have to have her foot amputated as a result of the trip and fall.

The verdict included $75,000 in future pain and suffering and $45,000 in future medical damages. Contributory negligence of the Plaintiff for 25% was found by the jury.

We Have Moved!

2009-02-10T13:28:00.003-06:00

Thomas & Wan, LLP has recently moved! We are now located at 1710 Sunset Blvd., Houston, Texas 77005 which is very close to Rice University. We are very happy to be in our new space and are located on the second floor.

New Mexico Residents File Lawsuit Against Helena Chemical

2008-10-15T11:05:00.003-05:00

Represented by Thomas & Wan, LLP, residents of Mesquite, New Mexico filed a lawsuit against Helena Chemical Company in Santa Fe District Court. The lawsuit alleges that Helena, without proper permits, operated a fertilizer/herbicide/pesticide mixing plant in Mesquite, New Mexico.

The mixing plant spans more than five acres of land and is located within yards of some residents’ homes. The lawsuit alleges that since Helena began its operations in 1989, it has caused large chemical spills to occur in and around the residents’ homes, has vented chemical dusts and fumes outside the Helena plant into the neighborhood and has contaminated the underground water below the plant. Prior to filing the lawsuit, the residents had tried to reach a compromise with Helena to stop the contamination of their neighborhood, but such efforts proved unsuccessful.

Coverage of the press conference announcing the lawsuit is here, here and here.

Interview on Hayes Sammons Hearing

2007-10-08T09:03:00.000-05:00

KURV 710AM in the Rio Grande Valley interviewed Lawsquawker's own Linda Laurent Thomas last week regarding this week's hearing to move forward with trial on our Hayes-Sammons lawsuit in Mission, Texas.

Listen to the interview or read the accompanying story.

Pick Your "Friends" Carefully

2007-10-01T10:57:00.000-05:00

As Texans know, the ability to sue a negligent doctor or hospital is virtually impossible now that the tort reformers (read: insurance executives) got their $250K caps on non-economic damages (i.e., you can sue if you make a lot of money like an investment banker, but if you are a housewife, file clerk or bookkeeper, your damages are negligible).

Today, the Houston Chronicle exposed one of Texans for Lawsuit Reform's spokesmen Dr. Forney Fleming who advocated against med mal lawsuits. He failed to mention that he was reprimanded and fined by the Texas Medical Board and still has complaints pending:

He was eager to bash plaintiffs' lawyers, particularly those who targeted doctors. So TLR, a business group that has spent hundreds of thousands of dollars bashing plaintiffs' lawyers and winning restrictions on judgments against physicians and other defendants, signed him up as a volunteer speaker.

Fleming, however, left out some details of his professional life, including his reprimand and $7,500 fine by the Texas Medical Board in 2004 for misdiagnosing what turned out to be bone cancer in a 16-year-old girl's leg. The leg later was amputated. The board also accused Fleming of providing substandard care to six other patients, including an 81-year-old woman with a fractured hip. That formal complaint was still pending when he let his medical license lapse and retired last December. And, according to state records, Fleming was sued or threatened with suits for malpractice three times. All were settled out of court or resolved through mediation for undisclosed terms.

None of his professional problems was mentioned on the TLR Web site, but his profile was removed last week, within an hour after I informed a TLR spokeswoman about them.

Here is a link to his "removed" TLR profile by way of Burnt Orange Report and Texas Watch: Dr. Forney Fleming, Texans for Lawsuit Reform Spokesman

True Value of a Texas Worker

2007-09-14T08:40:00.000-05:00

Well, Texas has recently decided that plant owners will be shielded from liability by Worker's Compensation Laws if a contractor gets injured.

In Entergy Gulf States Inc. v. John Summers, the Texas Supreme Court held that "a premises owner that "undertakes to procure" work falls within the the Labor Code's definition of a general contractor, for purposes of qualifying for the exclusive-remedy defense."

This case marks a sweeping change in the ability of an injured worker to get any meaningful protection from a negligent landowner and ultimately discourages plant owners from making safety changes to reduce injuries in the first place. If there is a silver lining to the 2005 BP explosion in Texas City, it is the fact that it occurred before this ruling came out.

A sad day for Texans, but not surprising according to John Eddie Williams, a prominent Texas personal injury lawyer who was quoted in the Houston Chronicle's story today: "The court ruling followed several unsuccessful attempts in recent years by the business community to convince the Legislature to address the same issue."

Slow Death, Slower Justice

2007-07-03T09:39:00.000-05:00

The Texas Observer has a detailed story on our Mission lawsuit and the struggles of our clients to obtain justice against the Goliaths of the chemical industry. The story paints a good picture of the conditions at the time the plant was in full swing:

The plant exhaled pesticide dust like a vacuum cleaner with a full bag. The fan sucked poisonous dust and fumes from the factory, sending them into the neighborhood. Families left their windows open most of the year because they didn’t have air conditioners. Strong Gulf winds moved the dust around so much that residents said they could taste it. The poison blew off of trucks, open-top kettles, and piles of residue left outside, which neighborhood kids used like a community sandbox, according to former workers, locals and court records. Rainbow colored storm water frequently flooded unpaved streets, at times muddying dirt kitchen floors.

Texas Supreme Court Lifts Stay in Mission, TX case

2007-06-19T10:39:00.000-05:00

The Texas Supreme Court lifted its stay on our Mission, Texas case last Friday. The mandamus had been pending for two years. Our clients provided some video commentary for KRGV-Channel 5 here.

A Victory for Safety

2007-05-30T13:58:00.000-05:00

Common sense finally won last week when President Bush's pick to head the Consumer Product Safety Commission, Michael Baroody, withdrew his nomination. As you recall, Mr. Baroody was Executive Vice President at the National Association of Manufacturers (NAM) - a K Street lobbying behemoth devoted to helping big manufacturers evade accountability for their wrongdoing.

Maybe I should just start my own farm and ranch

2007-04-25T12:17:00.000-05:00

Just a follow up to yesterday's post on food safety, the FDA is now going to look at imported human food and potential for contamination. It's about time...frankly it's a national security issue...all our inexpensive products today come here through our seaports, airports and border crossings. Maybe we should eat things that don't travel half way around the world (just think of the savings in gasoline to haul stuff over here)? Just a thought. CNN has the full story.

Reading, I Mean Testing, the Tea Leaves

2007-04-24T13:24:00.000-05:00

So in keeping with the consumer safety topic, here's something of concern...the contaminated wheat gluten in pet food was just the tip of the iceberg when it comes to tainted or downright dangerous food produces from China. I'm almost shocked, but sadly, I'm not surprised...this from a former FDA official...the AP has the full story:

Exporting countries are supposed to help. But governments such as China, where tainted food scandals are common, can have a stunning lack of oversight, said William Hubbard, a top FDA official for 14 years who now advocates for stiffer food safety regulations. He recounted how one supplier drove a truck over tea leaves to dry them with exhaust, which leached lead into the leaves.

Safety for Your Family or Corporations?

2007-04-20T10:30:00.000-05:00

So, I thought the Consumer Products Safety Commission was supposed to protect you and me and our families (and our pets) from dangerous, unsafe products. Now, an industry lobbyist has been tapped to run the Commission. I'm thinking of taking the Commission's link off our blog if the Baroody's nomination is approved. Not that people can't have a change of heart and switch sides, but considering his track record, you can't blame me for being concerned.

The Stop Baroody campaign is reprinted below: http://www.stopbaroody.com/

President Bush has nominated Michael Baroody - one of Corporate America's leading anti-consumer henchmen - to head the Consumer Products Safety Commission (CPSC) - our top government agency protecting millions of Americans from injury and death from unsafe products.
For the past 13 years, Michael Baroody has served as Executive Vice President at the National Association of Manufacturers (NAM) - a K Street lobbying behemoth devoted to helping big manufacturers evade accountability for their wrongdoing.
The CPSC protects American consumers from deadly or harmful products - ranging from flammable children's pajamas to collapsing cribs. Now, a leader in the fight against the CPSC has been nominated by President Bush to head this important agency.
During his tenure at NAM, Michael Baroody:
Fought to allow a higher level of arsenic in drinking water:
NAM claimed that negligent manufacturers would feel a pinch in their profits if forced to prevent their waste products from poisoning local communities. Arsenic is often found downstream from negligent chemical producers and users that knowingly try to bypass EPA Regulations - thus endangering all communities downstream. A deadly poison, even in the smallest amounts, it causes shock, vascular disease and a plethora of cancers in the body.
Opposed attempts to ban tobacco billboards near schools: NAM claimed federal agencies were "silencing commercial speech without authority." Since 1998, cigarette companies have spent more than $40 million a day to market their deadly product.
Lobbied to eliminate the rights of Americans exposed to asbestos to hold the responsible corporations accountable: As head of the front group "Asbestos Alliance," Baroody fought to cut off victims' access to our courts, the only place negligent corporations could be held accountable for knowingly exposing victims to this deadly material. NAM described victims' efforts to hold the accountable those corporations that knowingly exposed them to asbestos as "an anchor weighing down the business community." Even though the risks were discovered in 1940 by the corporate pushers of asbestos, 27.5 million workers have been exposed to asbestos on the job and hundreds of thousands of workers and their family members have suffered and died from asbestos-related diseases. In 2003 alone, nearly 10,000 people in the United States died from asbestos-related diseases.
Lobbied to keep corporate documents regarding unsafe products from the public: Over the years, the release of secret corporate documents in court cases have informed the public of corporate negligence and dangerous products. Secrecy agreements allow negligent corporations to hide this information from the public, such as the Ford Pinto's recklessly placed gas tank or even BP's easily preventable refinery explosion which killed 15 workers.
Lobbied to immunize negligent corporations from responsibility for their actions: NAM lobbied for legislation that would have provided immunity to manufacturers, no matter how deadly their negligence. Corporations that knowingly place dangerous or deadly products on the market such as unsafe baby cribs that kill small children or kids' pajamas that are highly flammable would not be held accountable if Baroody and NAM get their way.
Pushed to limit fines for corporate wrongdoing that placed American consumers in direct danger: NAM testified that the CPSC "should be prevented from inflicting economic harm," thus ensuring an even lower standard of accountability for corporations producing and marketing dangerous or deadly products, regardless of the harm they cause to innocent Americans.
Worked to eliminate rules that protect and keep safe Americans in the workplace: NAM went so far as to sue the Occupational Safety and Health Administration to stop enforcement of rules regarding worker safety. NAM lobbied to keep manufacturers from having to publicly disclose how much lead they were producing.
NAM has consistently lobbied on behalf of corporations more intent on protecting their bottom lines than the public safety. Worked to immunize corporate CEOs from criminal liability for marketing deadly products to the public, maintaining such actions might slow "productivity."As an example, knowingly marketing clearly defective bulletproof vests - leading to deaths of soldiers, police and elected officials - would not be a criminal act.

Tear Down that Warehouse, Mr. EPA!

2007-04-13T13:36:00.000-05:00

Well, it's finally happening. The contaminated Hayes Sammons Warehouse located on the EPA Helena Chemicals Superfund Site is coming down. The residents of Mission, Texas have worked very hard to pull down the warehouse, an ugly reminder of the source of their contaminated properties and bodies. Thomas & Wan has the full story here.

Brain Damage from Hydrogen Sulfide Exposure

2007-04-13T13:28:00.000-05:00

The family of Jesus Deleon is suing Motiva Enterprises for negligence and violations of OSHA standards which left their primary bread winner brain damaged. Mr. Deleon was working in an industrial tank at Motiva Enterprises when toxic hydrogen sulfide gas was carelessly allowed into the tank. All of his co-workers were lucky enough to climb out in time, but Mr. Deleon did not share the same fate. He was overcome with fumes and now has permanent brain damage. Thomas & Wan is humbled to represent Mr. Deleon and his family against a negligent and careless company. The Southeast Texas reporter has more.