Robert W. Kerpsack Co., L.P.A.

Ford Recalls Pick-Up Trucks

2008-05-14T15:44:00.003-05:00

According to a posting this week on the National Highway Traffic Safety Administration (NHTDS) website, Ford Motor Co. is recalling over 655,000 pick-up trucks because of a faulty hose. The recall is scheduled to begin in July.

The trucks in question are the Ford F-150 and Lincoln Mark LT. They are 2005-2006 trucks with 5.4 liter, three-valve engines. The hose as is could interfere with the vehicles’ braking ability.

Most of the trucks being recalled are in the United States, although about 50,000 are in Canada and 1500 in other countries. So far there have been eleven small accidents tied to this hose issue, but no injuries. Ford dealers will replace the hose at no charge.

2005 Recalls

That same Ford F-150 pickup truck was recalled twice back in 2005, along with some SUVs. The first recall was in January, 2005 and the second one in September.

The reason on those occasions was fire risk. About 550 complaints had been made to the NHTDS about fires breaking out in unattended vehicles. In January, Ford recalled about 792,000 pickup trucks and SUVs for a faulty speed control deactivation switch that they suspected of causing the fires. The F-150 models were from 1995 to 1999, 2001 and 2002.

In September, after some delay, Ford recalled nearly four million trucks to replace that same switch. Again, the F-150 was one of the recalled vehicles. That was the fourth largest recall in Ford’s history. Brake fluid was leaking through that switch into the speed control system’s electrical components. That caused corrosion over time, leading to fires.

When we buy a new vehicle, we tend to assume that it is safe and in excellent working order. Most of the time that is true, but when it is not true, disasters can happen. If you have been hurt by a faulty vehicle, or if you have a loved one so injured, please call or email us for a free case evaluation.

Recall of Contaminated Meat

2008-05-08T10:58:00.002-05:00

Gourmet Boutique, a New York food company, is voluntarily recalling 143 tons of meat and poultry. Federal food safety inspectors and Florida agriculture officials discovered that some of it is contaminated with the Listeria monocytogenes bacterium.

Some of the products are chicken salads and sandwiches, sold under the name Gourmet Boutique. Others are frozen wraps and burritos which are sold as “Jan’s” or “Archer Farms”. The exact products are listed on the USDA webpage about this recall, dated May 3, 2008.

So far there are no reports of illness associated with this recall.

What is Listeriosis?

It is a bacterial infection caused by the monocytogenes bacterium. In 2004 and 2005, it occurred only 2.5 to 3 times for each million of U.S. population. Of those cases, about 70% occurred in people with a compromised immune system, for whatever reason – chemotherapy patients, elderly, or suffering from HIV, AIDS, a blood cancer, malnutrition, or a hereditary condition. The other 30% occurred in pregnant women.

The Listeria monocytogenes bacterium exists throughout our environment and typically enters the body through being ingested. It has been found in seafood, meat, dairy products (despite pasteurization), and vegetables.

Symptoms of Listeriosis

There are four separate ways Listeria can develop in the body, with four sets of symptoms. When ingested in contaminated food, symptoms may not occur for one or two days afterwards, and would typically be:

Diarrhea
Fever
Aching muscles
Nausea
Headache
Stiffness in the neck area
Confusion
Impaired balance
Convulsions

Treatment is done with antibiotics, usually ampicillin and perhaps gentamicin. Gourmet Boutique has made a recorded phone message which states it has made some environmental changes at its food plants to prevent this problem arising again.

If you think you may have eaten any contaminated products, please see your doctor immediately. Please also contact us if you would like to know more about your legal rights and options.

A Sketch of the U.S. Supreme Court

2008-05-06T15:18:00.001-05:00

The Supreme Court is sometimes referred to as SCOTUS, analogous to POTUS – Supreme Court (or President) Of The United States. It consists of the Chief Justice of the U.S. and eight Associate Justices (although Congress has the power to change that number). They tend to begin serving well into their law careers, after an acclaimed career and long experience as a judge. They serve for life, or until they decide to resign or retire, or are impeached. They meet in their own building in Washington, D.C.

Over the years since 1789, each change of Chief Justice has marked a new stage in the ongoing career of the Supreme Court, and in each stage, the court is named for whoever is Chief Justice at that time. In each stage, the court makes a series of important rulings which add up to a certain identity for that particular group of nine judges.

The Marshall Court ran from 1801 to 1836, and gave initial shape to the balance of power between the federal and state governments. It ruled that the Supreme Court could correct state supreme courts in their interpretations of the Constitution. It also set the practice which we see today of rulings being issued as one majority opinion with minority dissentions. That was a change from the inherited British tradition where opinions were issued separately by each judge.

The Taney Court from 1836 to 1864 ruled on the famous Dred Scott case, opining that people of African descent brought here as slaves, and their descendants, could not be citizens, could not bring a lawsuit against anybody, and could not be taken from their owners without due process. This decision is thought to have been a contributing cause of the Civil War, but it was overturned later by the Thirteenth and Fourteenth Amendments which abolished slavery and gave full rights and citizenship irrespective of race.

Closer to our own era, the Warren Court, from 1953 to 1969, made several rulings which expanded application of the Constitution to civil liberties. It opined that racial segregation was unconstitutional in public schools, that the Constitution gives (a) a right to privacy and (b) a right to have a court-appointed lawyer if you’re too poor to pay for your own. It ruled that public schools cannot have any mandatory prayer times or Bible readings (although they may have optional prayer).

The Burger Court from 1969 to 1986 made the controversial ruling that abortion is a constitutional right. It also opined that the death penalty is not unconstitutional, although its implementation at that time in some states was unconstitutional.

The Rehnquist Court from 1986 to 2005 put some restrictions on Congressional power, working with the idea of federalism. It put an end to the repeated electoral recounts in the 2000 presidential election, allowing George W. Bush into the White House. It also put some limits on picketing by labor unions and removed some from abortions.

The current Supreme Court is the Roberts Court, which began in 2005. Time will tell how it will be characterized by its rulings.

If you would like to schedule a free consultation, please call or email our office.

Agreement Reached on Minnesota Bridge Collapse

2008-05-02T16:44:00.000-05:00

On August 1, 2007, the eight-lane Minnesota bridge known as Bridge 9340 crumpled and fell into the Mississippi river during the evening rush hour. Vehicles and construction equipment fell into the water, and some vehicles, including a school bus, clung precariously to the slanted bridge roadway.

It took nearly three weeks for divers to recover the bodies of the thirteen people who died. About 145 people were injured, and some are still having surgeries done. The National Transportation Safety Board has been investigating what caused this disaster, and focusing on a design flaw.

On April 25, 2008, Minnesota state lawmakers announced that they had reached a compromise agreement for compensating the injured victims. It’s expected to be signed by the governor, and it provides relief and support for victims and their families.

Negotiations had somewhat bogged down over the issue of whether to recognize the state’s limit of liability by capping awards made to individual victims. It appears that has been recognized, as victims may receive up to $400,000 each. However, there is still $12.6 million available for ongoing medical costs, uncompensated medical expenses, and lost wages.

Part of the agreement is that victims and their families would have to agree not to sue the state of Minnesota if they accept the settlement amounts of this compromise.

If you have been injured or have lost a loved one because of somebody else’s negligence, you may have a valid legal claim. Please call or email us if you would like to schedule a free consultation.

Mortgage Litigation in Ohio

2008-04-29T18:57:00.000-05:00

The mortgage situation in the U.S. has been in the news recently, as more homes go into foreclosure. This is not a sudden problem, but has been brewing for several years. It is a complex situation with many aspects, and Cleveland has one of the highest foreclosure rates in the country.

One of the problems in Cleveland has been lenders who target groups that they see as financially unsophisticated. These are relatively low-income people, and minorities. Some mortgage brokers chose to target people who had been ordered to repair their homes to avoid prosecution, as they had been cited for building code violations. Some bought lists of people with unpaid hospital bills. The thinking behind these actions was that these people needed money quickly and could be persuaded to refinance their homes for that reason, and pay high fees in the process.

In one case, Eva v. Midwest National Mortgage Banc, Inc., the plaintiff alleged that:

“Defendants extract unconscionable and illegal fees from their victims until there is no money left to extract; they then leave their victims’ homes vulnerable to foreclosures, which the loans were specifically designed to facilitate.”

That case was filed in 2000, and has now been settled, saving seven of the eight homes involved.

Another case is Housing Advocates, Inc. v. Argent Mortgage Co. where the complaint was filed for racial discrimination and claimed that the company targeted African-American homeowners, offering them loans that were likely to lead to foreclosure. An investigation found evidence to substantiate this claim, and a hearing is now scheduled.

The City of Cleveland has sued 21 Wall Street banks that funded lenders who followed predatory lending practices.

Similar cases have been filed in many other states. Baltimore has sued Wells Fargo bank for predatory lending practices in African-American neighborhoods. Countrywide Financial Corp, which is the country’s largest lender, is facing multiple lawsuits:

From a previous regional manager who has filed a whistle-blower suit, (Zachary v. Countrywide Fin. Corp.)
From the Florida U.S. trustee for “bad-faith conduct that abused the judicial process”
Similar complaints in Ohio, North Carolina, Texas and Pennsylvania

If you have been persuaded to refinance and are now regretting it, or if you are facing possible foreclosure, please don’t delay in contacting us. We will be glad to give you a free case evaluation.

Hurricane Katrina Lives On

2008-04-25T15:23:00.000-05:00

Hurricane Katrina happened on August 29, 2005, but the legal aftermath continues. This week a federal judge dismissed fraud claims in a Katrina lawsuit against State Farm Fire & Casualty Co.

A couple whose home had been badly damaged by wind and water sued State Farm after that company paid the limit of their flood policy plus $36,000 for wind damage, but blamed the rest of the home’s damage on Katrina’s floodwaters. The homeowner’s policy excluded flood damage.

Through their attorney Richard Scruggs and his partners, the couple charged fraud because they claimed that an Alabama firm used by State Farm for damage assessments had provided two different engineering reports after Katrina. State Farm then underestimated the wind damage on the couple’s home to reduce its liability under the homeowner’s policy.

The judge, Judge Senter, ruled that if this claim were sustained, it would constitute bad faith, but not fraud. The couple may continue their efforts to obtain payment but with a different attorney, as Richard Scruggs has been indicted for attempted bribery in an unrelated Katrina dispute.

It is important to know exactly what your homeowner policy covers. Do read the fine print and ask questions if you are not sure where you stand. If you have sustained property damage through another’s negligence you may have a valid legal claim, so please call us or send an email if you would like to schedule a free consultation.

The VIOXX Saga: Part 3

2008-04-21T12:24:00.000-05:00

Merck & Co., Ltd., the manufacturer of VIOXX, has agreed to a very large settlement amount in a class action suit (see The VIOXX Saga: Part 2). The many people who filed lawsuits against Merck had a variety of health problems associated with having taken VIOXX for several months or longer.

Serious VIOXX Side Effects

Heart attacks – not always fatal
Strokes – also not always fatal. Strokes and heart attacks can be caused by blocked blood vessels
Blood clots – which can block a blood vessel and cause strokes and heart problems
Stomach problems – intestinal bleeding can happen without warning and may require hospitalization. This is rare.
Allergic reactions – which can cause breathing troubles if the throat or mouth becomes swollen
Kidney problems – another rare side effect which could perhaps cause kidney failure
Liver problems – also very rare

Minor VIOXX Side Effects

This is a partial list of non-life-threatening side effects:

Respiratory tract inflammation or infection
Headache and back ache
Fatigue
Stomach pain
Dizziness
Nausea
Urinary tract infection
Meningitis
Elevated blood pressure
Irregular heartbeat

How VIOXX works

VIOXX is one of a groups of drugs which are alternatives to steroids. The group is called NSAIDs (for Non-Steroidal Anti-Inflammatory drug). Steroids reduce inflammation (which helps reduce pain) for a short while, but when taken for too long they cause a list of unpleasant side effects. So NSAIDs are used whenever possible. Other NSAIDs are aspirin, naproxen and ibuprofen. Acetaminophen is not an NSAID.

VIOXX prevents the formation of compounds called prostaglandins, which are thought to cause pain and inflammation. It is a “Cox-2 inhibitor”, meaning that it blocks the action of a body enzyme nicknamed Cox-2.

Unlike the other NSAIDs, it does not block Cox-1, whose job is to maintain stomach tissue, protecting the stomach lining. This gives VIOXX the advantage of being able to reduce pain and inflammation without causing stomach bleeding or ulcers. (Most people know that aspirin can cause gastrointestinal bleeding – it blocks Cox-1.)

VIOXX Questions

Questions have been asked about VIOXX since soon after it was approved by the FDA. Studies suggested an unacceptable risk of heart problems, and although Merck denied there was any evidence of that, compared to other NSAIDs, the FDA sent that warning letter to Merck in 2001 (see The VIOXX Saga: Part 1 in this space).

Lawsuits followed, as outlined in previous blogs here. Merck issued a statement after the November, 2007 class action suit agreement. It states the conditions those class action plaintiffs must meet to qualify for payment from Merck.

If you have taken VIOXX and suffered any of the side effects listed above, or others which you think are connected to VIOXX, contact your doctor immediately. Please also feel free to contact us to learn more about your legal options.

The VIOXX Saga: Part 2

2008-04-18T12:37:00.000-05:00

Yesterday this writer posted Part 1 of the VIOXX saga. Please refer there for the basics as to what VIOXX is. Following are verdicts returned during 2005 and 2006. This is not a complete list of all lawsuits filed.

August, 2005 – A Texas jury awarded $253.4 million to the widow of a man who had died in 2001 after taking VIOXX. It was reduced to $26 million by the Texas punitive damage caps. This was the first VIOXX verdict.

November, 2005 – A New Jersey jury cleared Merck of a heart attack sustained by someone who had taken VIOXX for about two months only.

February, 2006 – a New Orleans jury cleared Merck in the death of someone who took VIOXX for about one month.

April, 2006 – Two cases in New Jersey concluded. One jury awarded $13.9 million to a 77-year-old man who had a heart attack after four years of taking VIOXX. The same jury cleared Merck in the case of a 60-year-old who took VIOXX for nearly two years.

June, 2006 – The New England Journal of Medicine published a correction that had been issued by Merck, that changed the APPROVe study results. It stated that heart problem risks increased earlier than the 18 months previously stated.

July, 2006 – A New Jersey jury cleared Merck in the heart attack of a diabetic who had taken VIOXX for over two years.

August, 2006 – A California jury cleared Merck in the heart attack of a 71-year-old man

August, 2006 – A New Jersey judge overturned the November, 2005 verdict for Merck, on the basis that new information had come to light since then which warranted a new trial.

August, 2006 – A Louisiana jury ordered Merck to pay $51 million to a man who took VIOXX for two years, then had a heart attack and continued on VIOXX for about two more years. Later that month, a Federal judge ordered a new trial because that amount was “grossly excessive”.

March, 2007 – The jury in the new trial awarded $20 million in damages to this man in his new trial.

November, 2007 – In a class action suit on behalf of plaintiffs who suffered heart attacks or strokes after taking VIOXX, a settlement was reached in which Merck agreed to pay $4.85 billion, to be divided among the several thousand plaintiffs and their attorneys. Each claimant will receive an amount according to his or her medical records. This is the largest pharmaceutical settlement ever.

Thousands of personal injury lawsuits were filed and many consolidated
Discovery began in 2001 on consolidated cases
Over 50 million pages of documents were produced and read
Over 2005 depositions taken
Thousands of motions filed
Hundreds of cardiac experts were consulted, as well as medical experts in pharmacology and neurology
Negotiating teams from each side met over 50 times and conducted several hundred conference calls

Part 3 of this VIOXX Saga will briefly discuss the medical risks and issues. Please contact us if you have taken VIOXX and subsequently suffered a heart attack, stroke, or other life-threatening event. We will be glad to give you a free consultation.

The VIOXX Saga: Part 1

2008-04-17T17:10:00.001-05:00

VIOXX™ is a non-steroid, anti-inflammatory drug (NSAID – a painkiller) marketed by Merck & Co., Inc., producer of the famous Merck Manuals, and a leading international pharmaceutical company. Merck spends billions each year on drug research and development.

May, 1999 – The FDA approved VIOXX for arthritis, menstrual pain, and other acute pain in adults. It has been marketed in over 80 countries, under the name of CEOXX in some. Chemically, it’s related to ibuprofen and naproxen, both older drugs. VIOXX blocks a certain enzyme which helps cause inflammation and pain, and has been found effective for arthritis and the other conditions it is approved for.

June, 2000 – Merck finished a study called VIGOR (standing for VIOXX Gastrointestinal Outcomes Research). They gave the results to the FDA. Naproxen and VIOXX had been compared and it was found that patients on VIOXX had five more heart attacks than those on Naproxen.

September, 2001 – The FDA sent a warning letter to Merck about the Merck promotional campaign. The FDA thought it was minimizing the risk of heart problems (heart attack and stroke).

April, 2002 – Merck amended the VIOXX package insert to include a warning about potential heart problems.

September, 2004 -- Independently of the FDA, Merck announced that it was withdrawing VIOXX from the market because of increased risk of heart problems. A study (called APPROVe) had been ongoing which for the first 18 months came up with no indications of increased cardiac risk. But patients who took VIOXX for longer than 18 months had increased heart problems – overall (not in every case). That APPROVe trial was stopped.

It had begun in 2000, and involved 2,600 patients with a history of colon cancer. It was evaluating the effectiveness of VIOXX in preventing recurrence of intestinal growths. The indications of cardiac risks started appearing 18 months into this trial. Merck decided to withdraw VIOXX rather than amend its labeling.

February, 2005 – The FDA, having had a panel investigating the matter, concluded that VIOXX and the similar drugs (Naproxen and ibuprofen) all increase risks of heart problems, but should still be available on the market.

This space will continue the VIOXX saga by briefly outlining the series of verdicts through 2005 and 2006.

If you have taken VIOXX and then sustained a heart attack or stroke, please feel free to contact us for a free case evaluation.

Toyota Wants a New Judge

2008-04-11T12:25:00.000-05:00

In 2001 there was a fatal accident where renovations were being done at the Ferry Building in San Francisco. A construction worker was operating a Toyota forklift moving lumber, and the forklift tipped forwards. An onsite safety foreman, Hilary St. John, ran over and tried to correct the forklift from its rear. But about 5,200 pounds of lumber fell on top of him and he was found dead on the site.

St. John’s family filed a wrongful death claim against Toyota, alleging that the forklift was negligently and defectively designed. Their suit asked for $25 million in compensatory damages. The trial lasted eight weeks and the jury returned a verdict in favor of Toyota.

However before and during the trial, the judge, James McBride, found that Toyota had twice failed to produce forklift design documents. He told jurors that they should conclude that those documents were negative for Toyota. He issued a post-trial order imposing sanctions of $138,984.33 on Toyota; and he granted the plaintiff’s motion for a new trial.

Toyota appealed this, but the First District Court of Appeal upheld the sanctions and new trial decision. In March, 2008, Toyota’s attorneys asked that Judge McBride be disqualified from retrying the case, and from presiding over any related proceedings. In his disqualification motion, attorney John Ranucci wrote:

"Because Judge McBride has previously expressed comments regarding the integrity and veracity of defendants, an average person on the street might reasonably entertain a doubt that the judge would be able to be impartial.”

Not many people file motions to have a judge thrown off a case. It’s risky, because if you fail, you have now alienated that judge. Judges are supposed to always be fair and impartial, but they’re human too.

This case is now in the Alameda County Superior Court, where Judge Frank Roesch will rule on the disqualification motion. How likely is he to throw one of his peers off a case? No doubt we’ll learn of his decision soon.

If you have lost a loved one in an accident, and are wondering if you have a valid wrongful death claim, please call or email us to schedule a free case evaluation.

Inhaled Insulin Being Withdrawn From Market

2008-04-09T13:29:00.000-05:00

Seeking to save diabetics from having to use needles for injecting insulin every day, some companies have tried to develop an inhalable form of insulin.

Pfizer, the world’s largest pharmaceutical company, announced last October that it would stop marketing Exubera, which had not sold very well. Pfizer had developed it in partnership with Nektar Therapeutics, a California drug company.

Work on developing an inhalable insulin has been going on since 1924, when the idea was first thought of by German researchers. The problem is that insulin is a large, complex protein and delivering it to the body via the lungs is a challenge. The size of the particles has to be reduced so small that it can reach the very tiny lung capillaries which would absorb it into the bloodstream.

Not until the 1990s did testing begin on humans and in January, 2006, the FDA approved Exubera for both Type 1 and Type 2 diabetes. Withdrawing Exubera so soon after it had been approved has cost Pfizer $2.8 billion.

Exubera problems

1. With the FDA, Pfizer and Nektar had been reviewing data from the three FDA testing phases and the subsequent reports after Exubera went on the market. Exubera was causing breathing problems in many patients. The drug carried a warning label about this.

2. There was a problem about dosage, as Exubera is dosed in milligrams, but insulin is traditionally prescribed in international units. One mg of Exubera equals three units of insulin, so one would expect that three mg would equal nine units. But it doesn’t; it’s the equivalent of only eight units. Doctors were advised to refer to the company’s conversion table.

3. Exubera is a fast-acting insulin. Therefore it begins working in the body more quickly than injected insulin and works for a shorter time. So diabetics still needed injections of longer-acting insulin to keep the level steady each day.

Meanwhile, other companies are trying to develop their own forms of inhaled insulin, as the idea is a good one, and with diabetes on the upswing, could potentially be lucrative. The MannKind Corporation in California is working on one called Technosphere Insulin, which is in the final stage of FDA testing. Eli Lilly’s product has just completed Phase 2 testing. Novo Nordisk, a Danish company, is also investing large sums in inhalable insulin. Other companies have developed less painful needles for insulin injection.

In the long term, this is all good news for diabetics, as eventually there will probably be a painless and effective way to take insulin. Meanwhile, if you have been injured by Exubera, and are wondering if you might have a valid legal claim, please contact us for a free consultation.

California Court Upholds $11 Million Award

2008-04-07T11:46:00.000-05:00

An elderly couple now living in Colorado, Joseph and Mary Garza, filed suit in 2005 against Asbestos Corp. Ltd, after Joseph was diagnosed with asbestosis. The symptoms of asbestosis typically show up several decades after the person was first exposed to asbestos. Joseph had worked in Navy shipyards during the 1940s and 1950s where he used asbestos products in repairing boilers. He was given no protective mask or clothing, according to his trial testimony.

Asbestos fibers are microscopically small and become airborne as asbestos products are handled. Asbestos was used for many purposes for about 100 years because it is fire-resistant, electricity-resistant, and resistant to chemical change.

Now Joseph cannot walk more than half a block and must use a portable oxygen tank because the asbestos fibers became caught in his lungs. Because asbestos is resistant to chemical change, the body is unable to neutralize, dislodge, or excrete those fibers. Therefore they remain in the lungs, burrowing ever more deeply until they start filling the tiny air sacs where oxygen is taken in from the air and carbon dioxide is released to the air.

Joseph is 77 now and becoming unable to care for his wife, who depends on him because of her own health problems. On March 25, the California appeals court upheld the $11 million award against Asbestos Corp. Ltd, Joseph’s employer. Although he was exposed to asbestos in several later jobs, the jury held Asbestos Corp. to be 75% responsible for his illness today.

More people are being diagnosed in recent years with asbestos, because their symptoms are now becoming evident, after exposure to asbestos several decades ago. The same is true of mesothelioma, also caused by asbestos fibers lodged in the body. If you have been diagnosed with asbestos or mesothelioma, please call or email us to schedule a free consultation.

State Laws vs Federal

2008-04-02T19:06:00.000-05:00

Recently the FDA has issued new rules about when a manufacturing company can be sued if one of their products causes injury. The new rules say that if that product had previously passed FDA testing standards and been approved for marketing to the U.S. public, you may not sue that company. For example, if a medication causes severe side effects not listed in the paperwork which accompanies each bottle of tablets, eyedrops, etc., and you have to seek medical help, you cannot sue the manufacturer if that medication was previously FDA-approved.

The reasoning behind this change?

Getting a new product FDA approved costs millions or even billions of dollars in research and testing, and many years of salaries paid and research expenses met. If a company goes through all this, and succeeds in having the product approved for whatever use it was tested for in the three FDA testing Phases, then that company should not be held liable if somebody unexpectedly develops some other reaction to the product, or is injured by it in some unusual or unanticipated way.

“Life Happens”, is the summary of this, perhaps. The researchers can’t foresee every human response that might conceivably happen on planet Earth. If the drug or product hurts you, stop using it. Use your health insurance and get medical care if necessary. But don’t try to blame the company which created this product and went to so much trouble to get it approved and available to you.

This approach pleases corporate defense attorneys. It doesn’t necessarily please potential plaintiffs’ attorneys. Some of them are calling it “silent tort reform”. When state and federal laws clash, federal laws prevail, per Article Six of the Constitution. However, if there is no federal law then federal courts have to go by whatever state law there is.

This tension is built into our system

There are a great many active lawsuits against product manufacturers, especially pharmaceutical companies, where arguments go back and forth:

Is the FDA-mandated labeling on a product adequate? (suit against Baxter Healthcare Corp. re heparin labels; also Vioxx cases against Merck & Co.)
Should Wyeth Pharmaceuticals have to pay $6.8 million to a man given a Wyeth drug in an artery instead of a vein?
Who is responsible if the FDA refuses to let a company strengthen its product label? (another Wyeth case, presently in appeal before the Supreme Court)

If you have been injured by a product and wonder whether you have a valid legal claim, please contact us for a free consultation. Determining your legal position must be done by an experienced and qualified attorney. So don’t spend any time fretting and worrying. Just give us a call or send an email.

Singulair and Suicide?

2008-03-28T15:17:00.000-05:00

Today the FDA has announced that it is looking into a possible connection between the allergy drug Singulair and suicide. The manufacturer, Merck, has updated the drug’s label four times during the past year, adding more information on side effects such as anxiety, tremors, depression, and suicidal behavior.

The FDA has asked Merck to examine its data on Singulair to see if there might be more on a possible link to suicide. This new FDA action in regard to Singulair is based on reports it has received regarding mood changes in people taking Singulair, suicidal behavior, and actual suicide.

Merck officials have pointed out that drug safety is not tested or evaluated by means of “reports”. It is done through long, large, and strictly-controlled research studies before FDA approval is obtained. None of the 11,000 patients in Singulair trials has committed suicide and none has reported any suicidal thoughts.

The FDA approved Singulair in August, 2005 for relief of indoor allergies in adults and children over six months of age. It is taken once a day and helps with a wide range of allergy symptoms for about 24 hours. It had previously been approved in 2003 for relief of seasonal allergies. It is also used to treat asthma.

An Asthma Study

Merck recently provided the FDA with the results of a study specifically on Singulair being taken for asthma, which included 3,900 adults treated with Singulair and 3,400 treated with other asthma medications. The study found one person on Singulair and three on other drugs who attempted suicide. The FDA is looking into related drugs such as Zyflo, Zyflo CR and Accolate. It expects to take about nine months to complete its evaluations.

Although pharmaceutical companies must put their new products through rigorous and extensive testing to obtain FDA approval, the marketing itself is another kind of testing, as it makes the drug available to the public. Among so many people, new side effects sometimes show up, and so drug labels are amended to warn of these new possibilities. In some cases, a drug is recalled pending further safety studies. It remains to be seen whether Singulair will be recalled.

If you have been taking it and noticing any mood changes or depression, even suicidal behavior, please contact your doctor immediately. Please also feel free to contact us to learn more about your legal rights and options.

Daubert Standards Tested

2008-03-27T17:51:00.001-05:00

In 1993 there was a case before the U.S. Supreme Court known as Daubert v. Merrell Dow Pharmaceuticals Inc. The Supreme Court issued guidelines to determine what scientific evidence can be admitted in court, and they became known as the Daubert Standards. They instruct judges to be “gatekeepers” in admitting only evidence which is relevant, reliable, and based on a testable peer-reviewed theory. Such theories must have known error rates and must be generally accepted by the scientific community.

As years went by and cases came before innumerable judges nationwide, some people began criticizing the Daubert Standards. They claim that some judges misinterpret them, looking separately at each component of a body of evidence and barring some while admitting others. Some judges apply the Standards too strictly, and some block all evidence if the medical experts in the case disagree about something.

Presumably some of these complaints stem from an attorney’s personal chagrin at having his evidence rejected and therefore losing his case. One can also assume that some are genuine.

Some states have laws based on the Daubert Standards which set criteria for admission of expert testimony in civil cases. This month the Supreme Court of Georgia rejected plaintiffs’ arguments brought forward to challenge part of Georgia law known as Senate Bill 3. This Bill is also known as the Daubert Bill, as it sets tighter standards for evidence admission. The Georgia Supreme Court upheld it. The plaintiffs’ lead lawyer, Ned I. Miltenberg (of the Center for Constitutional Litigation based in Washington D.C.) was disappointed but is considering a further challenge if a suitable case comes to his notice.

Some of the most complex lawsuits are medical malpractice. The evidence, being medical and obscure to most non-medical professionals, must be examined by qualified medical experts, who then give their testimony if the case goes to trial. This study of a person’s medical records and all related information, along with deposition of all relevant people, can take months and even years. It must be done with the Daubert Standards in mind, as a good medical malpractice lawyer will always build a case with a trial in mind.

If you have incurred injury while under medical care and are wondering if you might have a valid legal claim for medical malpractice, or if you have a loved one in that situation, please feel free to contact us for a free consultation.

Claim Against the City of Phoenix

2008-03-27T11:34:00.001-05:00

At the Phoenix airport in September, 2007, an intoxicated woman was arrested for disorderly conduct. She was traveling alone from New York to Tucson to enter an alcohol treatment center. The claim is filed by her family because on September 28, the woman, Carol Anne Gotbaum, died while in a police holding cell at the airport. The autopsy report done by the Maricopa County medical examiner states that Gotbaum accidentally hanged herself on her shackles and that alcohol and prescription drugs were contributing factors in her system.

The claim is the required beginning of a lawsuit and seeks money for Gotbaum’s husband, children and estate. Her husband is the son of Betsy Gotbaum, a New York City Public Advocate.

It states that on September 28, Phoenix police “…used excessive and unreasonable force on Carol, as if she was a dangerous criminal, rather than as the sick, intoxicated, and vulnerable person she was.” The City of Phoenix replied to this claim with a letter denying that police had done anything wrong, and stating that Carol’s death was an accident. It states in part:

“…the Gotbaum family has publicly admitted, not only that Carol hid her medical and mental condition, but that the officers responded to Carol exactly the way her husband knew they would respond because they did not have critical information known only to the Gotbaum family."

The letter includes transcripts of phone calls made by Carol’s husband to the airport, in which he expressed concern as to her whereabouts because she was depressed and suicidal.

Painful situations like this happen often, leaving a grieving family wondering how their loved one died, and wanting clear and specific answers. If you have found yourself in a similar situation, having suddenly lost a loved one, please call or email us to set up a free consultation.

Moderate Hypothermia in Treatment of Spinal Injuries

2008-03-26T14:00:00.001-05:00

The March issue of Orthopedics has an interview with Andrew Cappuccino, who is the assistant team orthopedic surgeon for the NFL Buffalo Bills. Bills player Kevin Everett was injured while making a tackle and suffered complete paralysis below the neck. The injury was a fracture dislocation of the neck-area spinal vertebrae known as C3 and C4 (Cervical 3 and 4, with number 1 being the first vertebra below the skull).

Dr. Cappuccino is the surgeon who has operated on Everett and is supervising his recovery. His treatment is working very well, as he is now in rehabilitation, after three weeks of hospital treatment, and is lifting weights and working with a harness mechanism.

What is hypothermia?

Part of his treatment was moderate hypothermia during surgery. Hypothermia is a lower body temperature than normal – 98.4 degrees F. Taken too far, as someone might experience it after a skiing accident, hypothermia is fatal, as it slows down all body processes until the brain stops and the heart stops beating.

But used by skilled surgeons within strict parameters, it can help with recovery from trauma. Everett’s hypothermia started right on the football field after his injury, while he was being stabilized, given IV fluids and oxygen. He was given an iced saline infusion and ice packs in the armpits and groin.

In the emergency room he was given a complete workup with radiographs, MRIs and CT scans, and surgery to relieve pressure on the spinal cord at the neck where the bones were damaged. Throughout these procedures his body temperature was kept below 98.4 degrees F. Eight hours later a tiny movement was noticed in the legs. Cooling continued via an epidural catheter (cooling his spinal cord) until, 36 hours later, both his arms and legs moved a little. Then his body temperature was gradually raised to normal. He is now in recovery.

Why does hypothermia help?

Part of Everett’s recovery is due to the decompression on his spinal cord. But some is also due to the fact that a lower body temperature, by slowing body processes down, puts lower demands on the body’s nerves. This keeps them less active while surgery and healing occur, which helps speed recovery.

Little research has been done on use of moderate hypothermia and Dr. Cappuccino is in hopes that Everett’s recovery will inspire other spinal injury centers to give it more attention. New medical techniques are developed all the time, as are new medical devices and drugs. While there is undoubtedly some risk for patients receiving new drugs or treatments, there may also be great benefits as our medical skills expand. We rely on each surgeon’s best judgment to use only likely and appropriate techniques on each patient.

Most medical professionals are responsible and attentive, but there are times when unacceptable mistakes are made. If you have been injured by careless medical care and wonder if you might have a valid legal claim, please contact us for a free consultation.

Home Birth Complications: Who Can be Held Responsible?

2008-03-25T17:16:00.000-05:00

In 2003, a baby was born in Akron in a home birth after the mother’s doctor advised against it. When a woman has a C-section, that weakens the abdominal muscles, since they have been cut and stitched; therefore it is not a good idea to have any vaginal births after that. Once you have a C-section, it’s best to have them for each subsequent child.

On the other hand, a home birth is so much more comfortable and one’s own home is a far more relaxing place to be during such an exciting and potentially stressful event as childbirth. So this mother, Kelly Moscarello, went ahead with the home birth despite her doctor’s warnings about her previous C-section, and about the baby being too large.

The Birth Outcome

The birth was attended by a midwife and it did not go well. EMS technicians were called, who clamped the baby’s umbilical cord as they sped her to hospital. The baby weighed in at ten pounds and was found to have cerebral palsy, caused by brain damage.

In her distress, Moscarello was convinced the damage was caused by the umbilical cord clamp being premature, reducing oxygen to the baby’s brain. She contacted over 100 lawyers to find one who would file criminal charges against the EMS technicians.

Finally, a court-appointed guardian for the baby brought a suit against Moscarello’s physician, Dr. Kristin Trump. The suit asks for $13 million for lifelong care. It claims that Dr. Trump did not warn Moscarello about the dangers of a home birth. However, a Moscarello deposition transcript quotes her as stating earlier that Dr. Trump did tell her of the risks, and that a nurse had also warned her about them at the time of her previous C-section.

The Doctor Cleared

The trial began on January 24, 2008. On February 1, the Summit County jury cleared Dr. Trump of any responsibility for the baby’s injury. Their decision was reached after three hours, with a 6-2 vote for the doctor.

Medical situations can be very complex. They require expert medical testimony on both sides and a great deal of preparation. In this case the jury exonerated the doctor, but in many cases, medical malpractice is found to have occurred. If you are dealing with a birth injury and wondering whether you might have a valid claim, please call or email us to schedule a free consultation.

Death Caused by Drugs or Disease?

2008-03-24T14:46:00.000-05:00

Chelsey Cruz was a 15-year-old honors student at the Capital Prep Magnet School in Hartford. She died on March 11, of lupus complications.

Disputes over Chelsey’s care had begun six years previously, when she was first diagnosed with lupus. Lupus is an autoimmune disease, where the body attacks its own healthy tissue. Chelsey had a complication of lupus called lupus nephritis where severe kidney damage can cause death. She also developed an infection and probably died of cardiac arrest as a result of the infection’s spread. There will be an autopsy.

Complaints against mother

Doctors at the Connecticut Children’s Medical Center and Yale-New Haven Children’s Hospital had both filed complaints stating that Chelsey’s mother, Kimberly Castro, was harming her daughter. Castro had objected to the treatments they were giving to Chelsey and had withdrawn her daughter from their care. When Chelsey died, she was in treatment at Children’s Hospital in Boston, and Castro had disagreed with the treatments given there too.

Last August the Connecticut Department of Children and Families filed charges of medical neglect against Castro and took cusody of Chelsey. They placed Chelsey in her grandfather’s custody, as he agreed to follow the doctors’ orders.

Castro’s reason for disputing treatments was the side effects caused by the various drugs. When Chelsey died, the doctors blamed the lupus and its severe complications. Castro blamed the doctors.

Drugs are not always miracles

It’s very hard for a mother when her child is ill and in pain. One has to remember though that (a) no drug is without side effects, and (b) lupus is a difficult disease to treat. There is no cure, so it is treated symptomatically, meaning the symptoms are treated since the causes are unknown and therefore can’t be treated. Its course is unpredictable. It flares up, then sinks into remission, then flares up again.

Survival in the U.S. of patients who have had it for five years is 95%, but Chelsey’s treatments seem to have been continually interrupted as her mother withdrew her from each group of doctors. She refused to allow Chelsey to have Cytoxan or Cellcept, claiming that those drugs were killing her daughter. When she was in hospital, Chelsey had a uniformed guard outside her room to prevent her mother from taking her out of the hospital.

Castro is now considering filing a lawsuit against the State of Connecticut. She may or may not have a valid case.

If you have lost a loved one through what you perceive to be medical negligence or malpractice, please call or email us for a free consultation. Medical malpractice cases are usually complex, and the sooner you obtain some legal help, the more quickly your case can be assessed and we can determine how to proceed.

Medical Malpractice: Who Can be Held Liable?

2008-03-07T11:12:00.003-06:00

In January, 2008, a Cleveland hospital patient, one Edward Balcerzak, was recovering from surgery. He choked on the material regurgitated from his stomach, and this interfered with breathing to the point where his brain was damaged, and he later died.

The Balcerzak family has filed a lawsuit against two doctors and the University of Ohio (OU). The two doctors worked for the OU college of Osteopathic Medicine, teaching medical residents. Because of this, they may not be individually liable for Balcerzak’s death.

One of the doctors has been an OU faculty member since 1985 and the other since 2004. Under Ohio’s current system, they can be granted immunity because they are employed by the state. Therefore medical malpractice claims involving them must go the Ohio Court of Claims, where all legal action against state agencies is handled.

It was in 2007 that the Ohio Supreme Court introduced the concept of immunity for state employees. It places greater financial burdens on the state, since the doctors’ own malpractice insurance need not be drawn upon. Now the Ohio Court of Claims will confirm whether or not the two doctors are indeed immune, and if they are, the state of Ohio will be held responsible for Balcerzak’s death.

In case the doctors are declared not immune, the Balcerzak family has filed another claim against the doctors’ private practices.

Medical malpractice lawsuits are usually quite complex and time-consuming. In this particular case, the concept of immunity for state employees is adding another level of complexity. If you have a loved one who was injured or killed in a medical setting, and are wondering whether you have a legal claim, please contact our office for a free consultation. It’s our job to sort through complications like this immunity factor, and there can be many such hurdles in the course of a medical malpractice lawsuit. Give us the legal work, so you can focus on supporting your loved one, or recovering from injury yourself.

McDonald’s Sued Over Small Boy’s Death

2008-03-04T19:16:00.001-06:00

On February 15, 2007, in Wichita, Kansas, a three-year-old boy was hit and killed in a McDonalds restaurant drive-through lane. His name was Cody Schuber and he was catching up with his twin brother. He walked out of the restaurant into the path of an oncoming pickup truck. The two small boys were out having dinner with their grandparents.

This particular spot had been the scene of an accident about a year previously. Another small boy had sustained a broken leg when he ran out the McDonald’s door and into the side of a van traveling through that same lane.

Cody Schuber’s family brought a wrongful death lawsuit against McDonalds Corp. and the company that owns this restaurant. The lawsuit stated that the death had occurred in a blind spot caused by the design of the restaurant. An attached indoor play areas blocks the view so that drivers and pedestrians cannot see each other.

The lawsuit further stated that the restaurant was negligent because:

It removed speed bumps that had previously been in place to slow down the parking lot traffic
It refused to install signs to warn drivers and pedestrians about this blind spot
It had allowed the painted crosswalk to fade and become hard to see for motorists

McDonalds has a duty to monitor the operations of its restaurants, said Larry Wall, who filed the lawsuit. It should have inspected the premises. The lawsuit seeks over $75,000 in damages each for Cody, for his twin brother, and also for the two-year-old child whose leg was broken in the 2006 accident at the same spot.

In our view here at Robert W. Kerpsack Co, unsafe premises should be exposed and any harm they cause should be compensated for. If you have been injured by the negligence of any property owner, please contact us for a free case evaluation.

Hit-and-Run Driver Sentenced

2008-02-29T17:23:00.000-06:00

On February 20, 2008 in Wilkes-Barre, PA, one Sarah Marquis was sentenced to two to eight years in prison for killing a young man of 19, Erik Vannucchi in Plymouth, MA. She had been drinking and hit him so hard with her Jeep Wrangler that his body was thrown 97 feet along the street.

He had been riding his motorcycle and been pulled over by the police who could not see his bike’s license plate. While waiting for them to tow his bike, he was struck and killed.

Marquis told the police that she knew she had hit someone, but was too afraid to stop, so she drove on. By the time she was found and arrested, it was too late to test her blood alcohol level and she couldn’t be charged with drinking and driving.

Erik’s father told the court that Erik would have started his first semester at Penn State University in the fall and was planning to go on to law school.

Vannucchi’s family and friends filled the court and wept as Judge Michael Toole read the sentence and his statement. Marquis wept too, and had wept throughout the hearing as she fingered her rosary beads. Nobody in her family spoke on her behalf, although some wrote letters to Judge Toole. She had also struck the tow truck driver who was preparing to tow Vannucchi’s bike, and inflicted a shoulder injury.

Judge Toole ordered Marquis to pay court costs and $14,048.28 to the Vannucchi family as restitution. He gave her one to four years for vehicular homicide and one to four for accidental involuntary death, to be served consecutively, as well as six years probation on other charges.

At the end he told Marquis:

“This courtroom was full of tears not just by you, but everyone. You’re still here, he is not. Nothing I can do can make that right.”

If you have lost a loved person because of somebody’s negligence on the road, please contact us to arrange for a free consultation.

Health Net Inc. Ordered to Pay $9 Million

2008-02-29T14:22:00.001-06:00

Health Net Inc. is one of California’s biggest for-profit insurers and has had a practice of canceling the policies of ill people. On February 22, 2008, an arbitration judge ruled that the company should pay more than $9 million to one Patsy Bates, a breast cancer patient whose coverage was canceled in the middle of her chemotherapy.

Patsy Bates is a grandmother, 52 years of age, who owns a hair salon. The cancellation of coverage was in 2004 and Bates was facing over $129,000 in medical bills. She had to stop her chemotherapy treatments and search for a way to pay that amount. She found a charity which helped her out.

The judge called Health Net’s actions “egregious” and stated that it had acted in bad faith. Part of his 21-page ruling stated:

“Health Net was primarily concerned with and considered its own financial interests and gave little, if any, consideration and concern for the interests of the insured.”

The arbitration hearing revealed that Health Net had paid bonuses to employees who met a cancellation quota and saved the company certain amounts of money.

Health Net’s Chief Executive has ordered an immediate stop to cancellations. He plans to change the company’s practices and retrain the sales force. Worried about the public’s confidence in his company, he has pledged to stop all cancellations pending the establishment of an external review process which will in future approve cancellations.

Would he have done these things had Patsy Bates not brought her suit? This ruling is the first of its kind, and now other insurance companies, which had previously defended such cancellations, are looking at changing their own practices. Cancellations were previously defended on the grounds that they were to hold down costs by weeding out people who may not have disclosed all pre-existing conditions when they applied for their insurance. In the case of Patsy Bates, Health Net had previously defended her cancellation, and stated that they would not have insured her had they known of her weight and heart condition. Apparently Bates’ insurance broker had filled out the application from her verbal answers as she worked on a client’s hair.

The judge wrote in his ruling:

"It's difficult to imagine a policy more reprehensible than tying bonuses to encourage the rescission of health insurance that keeps the public well and alive."

Have you experienced a sudden cancellation of your health coverage? If so, please contact us for a free consultation, and we will look at your situation to see if you have a legal claim.

West Virginia Doctor Discovered to Have 120 Malpractice Cases Pending

2008-02-19T08:35:00.000-06:00

An osteopathic physician who lied on his application for a position at Putnam General Hospital (Putnam County, WV) five years ago, has over 120 medical malpractice lawsuits pending against him at the current time.

Dr. John A. King, originally from Alabama, had gaps in his application, has been arrested, has left other positions abruptly, and has over 120 malpractice lawsuits pending in the United States. Somehow, all these red flags went unnoticed to the Putnam General Hospital and he was hired as an orthopedic surgeon in October 2002.

An attorney for the hospital insists that the hospital properly followed a seven-step screening process before granting King temporary credentials. Hospital officials say they found that King was licensed and in good standing in nine other states, that he was insured and that former colleagues and instructors gave him great reviews. Hospital officials state that several other hospitals where King performed surgeries did not report malpractice claims to the national database that hospitals rely on when interviewing candidates.

King surrendered his medical license and has since left the state.

If you or a loved one has suffered or died due to medical malpractice in Columbus or anywhere in Ohio, please contact Robert W. Kerpsack, Co., L.P.A. today to schedule your initial consultation.

USDA Announces Largest Beef Recall Ever

2008-02-18T07:30:00.000-06:00

The United States Department of Agriculture, yesterday, announced the largest beef recall ever in the country. The recall of 143 million pounds of frozen beef from a California slaughterhouse stems from an animal abuse investigation and meat being provided to school lunch programs.

Prior to yesterday’s recall, the largest was a 1999 ban of 35 million pounds of ready-to-eat meats. No illnesses have been reported thus far, and officials believe the health threat to the public is relatively small. The recall affects beef products that came from Chino, California-based Westland/Hallmark Meat Company.

Secretary of Agriculture, Ed Schafer said the cattle did not receive complete and proper inspection and have been determined to be "unfit for human food." Federal officials suspended operations at the company after an undercover video from the Humane Society of the United States showed crippled and sick animals being shoved with forklifts. Both felony and misdemeanor counts dealing with cruelty to animals have been filed against various plant workers. Authorities say the video shows workers kicking, shocking and abusing cows that were too sick or injured to walk into the slaughterhouse.