Canada Bans Bextra

From various sources, including Reuters and Canada sites:

Canada banned Pfizer Inc.'s arthritis drug Bextra this December of 2005 because of risks of heart attacks and strokes. Bextra sales in Canada had been suspended by Pfizer in April at the government's request.

"Following a review of safety information, Health Canada is informing the public that Bextra, an anti-inflammatory drug used to treat arthritis and pain, will not return to the market," the government said in a statement.

Verdict: Vioxx Merck Mistrial was a business "L"

Is the mistrial in the last Vioxx trial bad news for Merck? Some said no, at least initially. Now though, it looks like from the business side, it's a yes to me.

The mistrial leaves Merck's record at 1-1 in state courts and unresolved in federal court. Merck's own lawyers had described the case as a sure win for Merck because of the short-term use. Of course that did not happen.

Merck IMHO needed another victory to start to put the squeeze on claims numbering at least 6,400. While some have said that said a mistrial was better than an outright defeat, Wall Street has hit Merck.

Merck's stock closed down 72 cents, or about 2.5 percent, to $28.41. That price is more than 36 percent below Merck's pre-recall level Sept. 30, 2004.

What is next? A New Jersey State Court case with a person who took the drug for at least eighteen months - which is the time frame minimum that Merck admits may lead to an increase in an adverse event. The lawyer for the Plaintiff? The team will include Mark Lanier who has recorded the first Vioxx verdict.

December Tech: I like it

This from the BBC.com site: SMS text messages that 'self destruct' about a minute after they are received/read:

Londoners have subscribed to a self-destruct text message service which started on Sunday in the UK. The commercial service allows sensitive messages to be destroyed 40 seconds after being read. It's called StealthText.

"The technology behind StealthText is derived from military technology, so the comparisons with Mission Impossible are justified," said Carole Barnum, chief executive of Staellium UK.

"The ability to send a self-destruct message has massive benefits for people from all walks of life, from everyday mobile users through to celebrities and business people," she said.

People interested in using the service to send messages have to register and download a small program onto their mobile phone.

Once a message has been sent, the recipient receives a text notification showing the sender's name and a link to the message.

After they have opened it, the message disappears after 40 seconds.

Despite the fact the message will be removed from phones, users cannot entirely avoid a data trail. For legal reasons, a log of the message will remain on a secure server to which they have no access.

Aha. So it's not really gone. But, thanks for letting a guy like me know what to ask for in discovery now.

My E.R.I.S.A. Letter of Rep.

In my office we receive on personal injury cases a typical "Notice" letter from either a health insurer of its collections agency. Unfortunately it is typically the collection agent (such as Rawlings, HRI, etc.) that sends computer generated letters each month.

As such, we send out this letter - if you can use it go ahead!

[SALUTATION]

This acknowledges receipt of your letter informing of a potential subrogation claim or right of reimbursement regarding the contract of health insurance between our client and yours. I request that you provide us with a copy of the plan summary as well as the language that allows you, as the agent for the fiduciary health insurer in this instance, to make a subrogation or right of reimbursement claim. Please inform me in writing if it is your intention to assert subrogation or a right of reimbursement. I must have compliance with this request within thirty days of the date of this letter.

At this time, I acknowledge your correspondence and the potential claim asserted. Please note, however, that I cannot make a determination as to the validity of the fiduciary’s right to recover–if any– unless or until a copy of the plan is provided.

Please do not make the mistake of responding to this letter by stating that your entity is not the plan administrator and my request for a copy of the relevant documents is to be made to "The Plan." You are clearly acting as an agent for the health insurer. You are making a request/demand for information and reimbursement and I am asking for documentation to support such a claim as it relates to the contract for health benefits.

I consider your company a fiduciary of the plan. If you disagree, please let me know why - doing so in writing.

My obligation rests solely with my client, a person injured through no fault of his own. As of the date of this letter, there is no recovery of any nature. When or if there is a potential for recovery, I will consult my client. I will not provide you with updates of her treatment or her care. Do not contact my client. If the client agrees, I will be happy to contact you once my client’s care has ended and if or when an offer is made by the at fault party.

I may assert the common fund doctrine at some point. Please inform me if you intend to take the position that the common fund doctrine does not apply. Of course, I request that if your company takes such a position that you support it in writing and quote all relevant state or decisional law that applies. It is our firm’s legal conclusion that if the common fund doctrine applies, it does so regardless of the settlement offer(s) ultimately made.

Unless or until you are informed in writing that our legal representation has come to an end at any point, always know that we are the insured’s attorneys.

Feel free to call me if you wish further explanation. I do need the documentation requested so that I may fully explain to my client the nature and validity of the claim asserted.

Vioxx Trial #3: Mistrial 12/12/05

This will be reported shortly - Judge Fallon declared a mistrial in the pending case. Public comments earlier this morning by the Court were in substance that the jury was to have a sufficient amount of time to decide, and that time had run. From the information I have, it was less than three full days of deliberations.



Why the mistrial? Could it be that the newly discovered allegations of wrongdoing, as editorialized in the New England Journal of Medicine, may have weighed on the Court's mind? More later.

For Attorneys who advertise: Record your spots

Our office advertises and finds that pre-recorded fifteen second spots on radio, either before or after traffic updates, work well. Be careful, however, when a station or ad buyer tries to sell you "live" lead ins. Always insist on recorded. Why?

Today on the way in to work, I heard a live spot for an injury attorney on the sports station. The sports jocks were laughing it up for the segment prior, and as they went to the attorney, this is what I & thousands of others heard: "It's the holidays, and attorney {XXX XXX} wants you to watch out for the meatheads out on the road this season... ." The radio personality then gave the number, amongst background laughter.

Yes, "meatheads." I am pretty certain that this attorney (who I know) strives to be taken seriously and works very hard on his image. The traffic spot I heard was a waste of money, and more importantly showed to me that this advertiser was not being taking seriously by the station.

Take the time to record your spot, or you may suffer the same fate. It's hard enough to convey a dignified image, it's worse when someone is yukking it up.

Merck hid data in Vioxx study! Wow what a surprise

Please excuse my lack of surprise over the news/bombshell late in the day:


Merck withheld information about heart problems suffered by patients taking the company's painkiller Vioxx from the manuscript of a journal article published in 2000, the New England Journal of Medicine just reported.

The journal said relevant and dare I say important information about the problems had been deleted from the manuscript, and the article's authors -- two Merck employees among them -- did not reveal information about three heart attacks, though they knew about the incidents at least four months before publication.

This from USA Today:

"Pharmaceutical giant Merck was accused ... of knowingly withholding data on three heart attacks related to its controversial painkiller Vioxx in an influential medical study in 2000.

Shameful? Of course. Despicable? Probably. Surprising? Not in the least.

Merck: Vioxx trouble brewing in China

Crom cri.com.

Merck has a worldwide problem on its hands, if they didn't know that already:

A Beijing-based law firm will file a collective lawsuit against US pharmaceutical company Merck & Co Inc next year, and is looking for Chinese users of the pain relief drug Vioxx who have suffered from side effects.



Attorney Hao Junbo from Beijing Limin Lawyer's Office said he thought China has a large number of Vioxx users, Beijing Youth Daily reported yesterday.

Hao said his firm is seeking Chinese patients to show their prescription and medical records when using Vioxx, in a bid to prepare for compensation claims in the United States.


Beijing Youth Daily quoted Hao as saying that there are more than 4,200 civil cases in the US filed against the New Jersey-based company, and an American lawyer helped a Texas widow win a US$253 million verdict in the first Vioxx trial, held on August 19 this year.

"The winning is quite conducive to future court rulings," he said, adding that his firm would be acting on a no-win no-fee basis.

COX 2 inhibitors may not be safer for the stomach

British scientists last week they had found no evidence that prescription painkillers such as Celebrex, Vioxx and Bextra protected against stomach bleeding any better than older drugs.

Julia Hippisley-Cox had found no proof that these painkillers, known as COX-2 inhibitors, were less likely to cause gastrointestinal bleeding than aspirin or other treatments called non-steroidal anti-inflammatory drugs (NSAIDS).

In the four-year observational study, Hippisley-Cox and her team studied more than 9,000 patients in Britain who had been diagnosed with a stomach ulcer or bleeding and compared each case with up to 10 control patients.

Forty-five percent of the patients with a stomach ailment had been prescribed an NSAIDS in the previous three years and 10 percent had taken a COX-2 inhibitor. This compared with 33 percent and 6 percent in the control group.

The researchers said the risk of a stomach problem associated with using NSAIDS was lower in patients who were also taking drugs to heal ulcers.


You can find the article here.

(from varioud sources including yahoo, brit pages).

BCBS Opens a Bank

From various sources, including yahoo:

BCBS said this week that its board of directors approved the development of Blue Healthcare Bank. The aim is to simplify the administration of health savings accounts and other similar plans offered by Blue Cross insurers throughout the U.S.

Health Savings Accounts (HSAs) would be able to be established by those with HI plans that have a significant deductible. Employers and employees would be able to deposit money into the accounts. The accounts would grow tax-free.

According to the reports:

"The move into the financial services arena could prove to be a lucrative one for Blue Cross. By 2010, HSA accounts could be holding as much as $75 billion in assets, according to a report by DiamondCluster International Inc., a management consulting firm. As a result, financial institutions could stand to collect up to $3.5 billion from asset management and account fees, according to the report." (See the yahoo article).

Trial Attorneys: Doing business with advertising attorneys

My office is one of those that advertises. We advertise in every medium you can think of: the Web, phone books, radio, TV (including local, state, regional and national), and once in a blue moon newspapers.

With a vast caseload we cannot litigate each case in house so I have spent a great deal of time cultivating capable counsel to help us try cases.

My question to trial attorneys: When is the last time you either wrote, emailed or even cold called an advertising attorney in your state? I am not asking you to think city only. Think the statewide advertisers.

If you have not considered this, the time to do so is now.

Who calls me? I have been impressed with trial attorneys in their thirties and forties who call me quite literally out of the blue. We talk about cases, what they work on, and results. I have not seen any more senior attorneys reach out, however.

Some tips for those who would or should consider going this route to obtain more business:

Due Diligence. Get a read on the type of office that he or she may have. Number of offices, types of attorneys, etc.


Have a plan. We generate cases from the tip of Florida, to the edges of Eastern Alabama, all of Georgia, South Carolina, Tennessee, and North Carolina - the border states. That's a lot of territory.

If you seek to assist on cases, be specific as to geography. I had a discussion with a small office who said they would "go anywhere." Help stand out and choose certain areas. If you have a specific metro area, inform.

Tell us about the tougher cases you may want to bring to trial. Mark Link from the firm of Hertz, Link and Smith has created a niche handling civil DUI cases all over Georgia. He also seeks out cases with a severe injury but liability issues. They have superb results.

Another attorney has somewhat boldly says he will only want to talk to me about slip and falls with fractures of the leg or lower body.

Another pushes very hard to be allowed to review one car wrecks involving death or serious injury.

What not to do: I have plenty of people in my office who are happy to litigate catastrophic cases with million dollar limits. Some will call and say they only want to look at serious injury cases with clear liability and high insurance limits. Riiight.

Talk about fees early on. My office actually uses a sliding scale (higher if settled early in litigation, downward when certain milestones are reached).


Most trial attorneys who talk with me are surprised by what I ask for in return: If they have cases they believe are "too small" for their offices, send those to me. One attorney from another state looks at cases with values in excess of $100,000 only. I have been able to assist on more than a dozen cases in the range lower than that. I won't expect to get cases back, but I do ask.

Well? Are you willing to make that first contact? That first call? You will never know until you ask.

Vioxx Trial #3 Underway (Irvin)

The first trial before Judge Fallon in the MDL (in Houston, TX) involving Vioxx has begun. Jury selection has been completed, with the jury including two teachers (1 who teaches Algebra, 1 who teaches Science) and one engineer.

The Court expects the trial to be wrapped up in three short weeks.

Andy Birchfield handled the opening statements in the case for the Plaintiff.

Merck's lawyers blame Irvin's death on his age, weight, clogged arteries and family history, and they will argue that company researchers found a link between Vioxx and heart problems only among people who used it for 18 months or more.

Irvin's ``obesity and sedentary lifestyle caused his death -- much like they do each year for tens of thousands of American men in their 50s who have never taken Vioxx,'' Merck's attorneys said in court filings.

The usage by the deceased in the case was for less than ninety days.

Femara - Fertility Drug - increase in birth defects?

A drug used to increase a woman's chances of becoming pregnant may cause birth defects and miscarriages, according to Canadian health regulators.

Femara is approved to treat breast cancer in women who've undergone menopause. It is frequent prescribed "off-label" to prompt ovulation as part of fertility treatments.

Health Canada and Novartis have sent letters to Canadian doctors warning them about the off-label use of the drug.

Novartis will send a similar letter to U.S. fertility specialists to remind them that Femara is approved only as a breast cancer treatment.

Sources: Reuters, AP, Knight Ridder

Ortho Evra news

A number of doctors are no longer writing prescriptions for Johnson & Johnson's Ortho Evra contraceptive patch after FDA issued a warning earlier this month regarding possible health risks for women using the patch, according to multiple sources such as the WSJ, Yahoo, and Reuters.

The FDA issued a warning earlier this November that women who use the patch have a higher risk of experiencing blood clots and other side effects than previously stated because the patch exposes users to about 60% more estrogen than standard birth control pills.

For more news, go to FDA.org.

November this and that: On the road without a laptop

I took a trip during the holidays without a laptop. These are the items I brought, and you may want to add to your briefcase.

1.Sidekick II: It's bigger than a blackberry; the typing pad is easier to use IMO than a blackberry; you get both email and pretty decent web browsing with the SII; the cost for both totals $20 a month. It has a decent camera, no video.

2.Cellphone (Audiovox 9900):Small, fits in your pocket, has photo and video capability. I will never wear a phone on my belt, so this is just right.

3.Efax: I signed up for one. Easy to use, good viewer. Free, but for an area code specific number it's $12.95 a month.

4.Evoice: Similar to eFax. It's a web based phone number that is free (for now).

I am a big fan of the Sidekick II. It's $20 a month for unlimited email, the keyboard is bigger and easier to use than the blackberry device, the web browser is full color and runs graphics. Not too fond of the phone feature, and it does not have bluetooth capability.

Thankful

What are you thankful for? I'll be giving thanks this holiday weekend for many things. In my business I am thankful for:

Blogger.com: So that I can blod with little or no charge, as opposed to paying someone an ungodly sum of money to do the very same thing.

Bloggers: The up and coming new and/or first source for information - anything from where to find free, legally downloadable music, to case information, to recipes. I can only hope this remains as free form and independent as it can be.

I'm thankful for a court system that - despite billion dollar big business interests trying to make it hard to walk in the courthoue door- has rebuffed many conditions precedent to getting justice. The attack is on, however.

I'm thankful for people in my profession who are so willing to share documents, strategies, experts, and exhibits at no charge in the interests of justice.

I'm thankful for many other non law related things, and will think about them on my long drive this weekend.

Mass Torts, Round 2 notes

In addition to internet vendors I had the chance to learn a bit about specific types of drugs that may (or may not) be responsible for causing harm to consumers.

We discussed Serevent and how it worsens asthma attacks for those that take it for asthman related conditions. (See my blog, below).

I learned that the Plaintiff's attorney in the 2nd Vioxx case left a prosecutor on the jury. I also learned that he had three preemptory strikes remaining when the jury was seated. Why didn't he use them? I was taught- rightly or wrongly - to never leave any preemptories unused.

The Locks Firm has filed papers that address Merck's Motion to Dismiss non USA Plaintiffs, and that Motion is pending before Judge Higbee in NJ State Court.

Other seminar items included: Embracing your competition (which we already do here in Atlanta), handling Viagra blindness claims (our office is not investigating those), building your Firm's reputation through trials, and of course the internet and how it helps your practice.

More later.

Pic update from NOLA

The band Nine Inch Nails (NIN) was in NOLA to hold a concert for the workers there, and their web site has unbelievable pics of that city that are recent. On the site, you can see a pic of the barge that compromised a levee causing flooding in the 9th Ward by going here. The other pics are posted here.

Notes from the Mass Torts Conference

I just returned. Here are a few thoughts on what I learned/saw:

Lawyers on the Net: I think for most attorneys their eyes glaze over when they hear about SEO, sponsored links, etc. I did agree with one speaker/vendor's statement that if you judged lawyer presence (advertising) on the web, it's a 5 on a scale of 1 to 100 - that is, it is in its infancy.

I was impressed in particular with Landon Harland from ejustice. While most vendors to lawyers simply say, "here is what we can do for you", and most lawyers say "how much and where do I send the check" Landon spent time talking what might be heresy to other net vendors. Among his suggestions/comments:

*Hire your own content person/administrator. This person in the long run will be much much cheaper than paying a vendor's writer. Also, you will get quicker response from an employee. To me, it's a no brainer suggestion.

*Sponsored links versus organic links. It was suggested that 80% of the people who see a blue top of the page sponsored link on Google (the blue link at the top of the page) will never click through. The other 20% makes it worthwhile. The sponsored links work much better than the sponsored links to the right of the google results page.

Landon also told me/us about Eyetools - Eyetools’ Greg Edwards has published a “heat map” of people’s eye movements on the typical Google results page, determining both organic results rank and paid placement rank are of paramount importance. Most site viewers’ eyeballs didn’t even pass over fourth or fifth items in the lists. Go here to see the results, or to Greg Edwards' blog here.

To me, this is critical stuff. There is even a study (for sale of course) that addresses this subject. According to a snippet online:

The study found that most viewers looked at results in an "F" shaped scan pattern, with the eye traveling vertically along the far left side of the results looking for visual cues (relevant words, brands, etc.) and then scanning to the right, as if something caught the participant's attention.

"The study showed that searchers react to organic results differently than they react to sponsored listings."

You can buy the eye tracking study here.

Blogs They actually talked about them. Not for long, but they did discuss them. I think the sum total of bloggers at this conference was 10 (of about 300) based on an informal poll.

Legal Broadcast Network: My friend Jan Schlictmann was there, interviewing the muckety mucks for his show. You can find his network here.

On the non lawyering front, I was able to see upclose and personal the Rolling Stones show on Friday night. Superb. The Wynn is as advertised.

More later.

Serevent and Asthma Warnings

This is from coreynahman.com


GSK: Lowering Advair/Serevent Sales, But Impact To EPS In '06/'07 Negligible:

On GlaxoSmithKline (GSK:$49.92; Underweight rated), just how the newly
announced potential Advair/Serevent labeling (recommending a change to second
line usage, from first line) will impact sales is difficult to forecast - any sales
decay will likely be gradual.

We are lowering our revenue forecasts modestly, but the impact to EPS in '06/'07
may be negligible given GSK's large revenue base. Following GSK's recent run-up
in share price, a pull-back may be warranted given these new concerns.

**Serevent (a long acting beta agonist, or LABA) is the product more clearly
"at risk" ... . Advair (combination of inhaled steroid and Serevent) should remain more resilient.


**SMART trial results first flagged potential safety issues in 2003 - why FDA
has just now requested a label change like this is unclear.

Attending the Mass Torts Conference in Vegas

I am off to the Mass Torts Conference in Las Vegas. At the conference we will hear about the 2nd Vioxx Trial in New Jersey (Humeston). Sort of an autopsy of the case. Also on tap are presentations by Geoffrey Feiger, Al Sharpton, Bob Woodward and others.


What do Shaprton and Woodward have to do with Mass Torts? I asked that same question. They are the luncheon speakers, and will probably at the very least be entertaining.

The competition:

One topic is "Welcome your competition by joining forces with them." It will be presented by my friend and fellow Atlanta attorney Andy Childers. My firm and his are considered competitors in the State of Georgia. We have, however, met on a regular basis, refer potential clients to each other (in the event of conflict, case outside our expertise, etc.), and work jointly on cases. Is this new? Not really, as we have been working together for more than four years.

The internet

One segment of the conference addresses the Internet. From the materials, it does not look like blogs will be discussed at all. Shame on the speaker if that is the case. I find much useful information as to unsafe drugs now on blogs, and in fact spend most of my time searching blogs first for cutting edge news. Does a blog result in calls? It has to my office.

I may be a contrarian in that I do not believe that internet advertising (solely or as the bulk of advertising) as to unsafe drugs or medical devices makes financial sense when compared to other media. It works for traditional personal injury practice, however.

I have heard an attorney at a national firm boast of results of an internet campaign as to an unsafe drug. When I asked the ratio of spending to actual calls (then distilled to potential claims), I was astonished at the high cost of the campaign. It was nearly $5000 per potential case. That to me makes zero sense. I did not tell the attorney that, however.

Value

The most significant value to the conference will be the sharing of ideas and strategies. Plaintiffs' attorneys have always teamed up for the better. Mass tort claims are no different.

More later

Bad News for the Ortho Evra Contraceptive Patch?

Ortho-McNeil (a subsidiary of Johnson & Johnson) has finally acknowledged the fact that women who use the Ortho Evra patch are at greater risk of developing blood clots, stroke, and death than woman who use other forms of oral contraceptives.

Women using the patch may receive 60% more estrogen than they would be exposed to if they were taking a birth control pill instead.

CBS News broadcasted a story from Austin, Texas, concerning documents produced in the course of a pending lawsuit involving a young mother who was paralyzed by a stroke only 12 days after she began using the patch.

The report noted that there were 4x as many strokes in women using the patch as in women using an oral contraceptive.

Ortho Evra, like the other hormonal contraceptives, has a black box warning about an increased risk of cardiovascular adverse reactions in older women who smoke. This type of warning is the strongest that the FDA can request.

In a pending case, an internal memo shows that the company in 2003 would not agree to pay for a study that compared its patch to its own Ortho-Cyclen pill because of concerns there was ‘too high a chance that study may not produce a positive result for Evra’ and there was a ‘risk that Ortho Evra may be the same or worse than Ortho-Cyclen.’”


Ortho Evra was approved by the Food and Drug Administration (FDA) in November 2001 and is the first contraceptive product to be approved as a skin patch. In 2004, the drug accounted for more than 9.9 million prescriptions with sales topping $411 million.

The abel warns that Ortho-Evra should not be used by those that have:

* A history of heart attack or stroke
* Blood clots in the legs (thrombophlebitis), lungs (pulmonary embolism), or eyes
* A history of blood clots in the deep veins of your legs
* Chest pain (angina pectoris)
* Known or suspected breast cancer or cancer of the lining of the uterus, cervix or vagina
* Unexplained vaginal bleeding (until your doctor reaches a diagnosis)
* Hepatitis or yellowing of the whites of your eyes or of the skin (jaundice) during pregnancy or during previous use of hormonal contraceptives such as ORTHO EVRA, NORPLANT [levonorgestrel], or the birth control pill
* Liver tumor (benign or cancerous)
* Known or suspected pregnancy
* Severe high blood pressure
* Diabetes with complications of the kidneys, eyes, nerves, or blood vessels
* Headaches with neurological symptoms
* Use of oral contraceptives (birth control pills)
* Disease of heart valves with complications
* Need for a prolonged period of bed rest following major surgery
* An allergic reaction to any of the components of Ortho Evra


More later.

Where have you met a client?

I ask many attorneys that question and expect an answer that will include someplace other than an office or home. I spend my time working for injured people only.

Last evening I met a person who works the night shift in a small guard shack in rural West Georgia. He does not have very dependable wheels and would not drive seventy miles to meet with me. So there I was: Sitting on a milk crate, in a guard shack not quite as large as an outhouse on a windy clear night. After 30 minutes and a few cigarettes being smoked by the other person, I was able to leave knowing we could help him. He kept saying that his coworkers would not believe that an attorney would take to time to sit where we sat. (At 9:00 p.m.)

Other places? I have sat on the hood of a car in a not so great part of town to talk business with a potential client.

I have had more than one cup of coffee at a Waffle House with a potential client.

I've met a potential client at a truck stop, an airport, a gas station, a Steak and Shake. I have been to houses where the people were so poor, the windows were covered with clear plastic, no glass.

Meeting these folks where they live and work hasn't been a problem. In fact, it's been humbling. One meeting involved me coming to a home whereupon more than a dozen neighbors came walking in, sat and listened.

If you haven't had the chance to do so, consider it. It may open your eyes to how folks we work for live.

Random Notes: Vioxx Trial #2

Observers have opined that the counsel for Plaintiff overstepped how Mr. Humeston was portrayed, that is -- having good health and no or very little problems.

According to those who watched the trial, Humeston was teaching whitewater rafting shortly after his heart attack occurred that he claimed that was caused by Vioxx. There was a evidence of a video of Humeston in a rafting class that was taken as part of an unrelated Workers' Compensation file. Also, Mr. Humeston had obtained psychological and medical care because of the troubles he was having at work at the post office.

Vioxx Report: Judge Higbee's Hearing of 11/7

While the news of a Merck verdict reverberated throughout the country, the realities of litigating in front of a State Court Judge in New Jersey moved apace.

Yesterday at a hearing before Judge Higbee, those in attendance learned that of the approximately 2000 cases pending, nearly 60% of them involve an alleged injury together with 18+ months usage of the drug.

The next ten trials will all have a Plaintiff who took Vioxx for at least 18 months.

My comment: After the verdict last week, Merck reps told anyone and everyone that Merck had and has "a good story to tell." We will see, now that the next ten trials in New Jersey will tell the story of a drug pulled from the market after the VIGOR study suggested an increase in the chance of an injury when Vioxx was taken for 18 months or more.

Chris Placitella weighs in on the Vioxx Verdict

From the Placitella Firm:

Although Merck & Co. won a victory in the second VIOXX trial today, in New Jersey, the decision does not have anynegative implications for other plaintiffs. According to Christopher Placitella of Cohen, Placitella & Roth, P.C., one of the attorneys involved in the Texas trial case, where there was a $250 million verdict, the loss is not a setback for the 6,400 other lawsuits that have been filed against Merck."

"Everyone knew from the beginning that this was a difficult medical case
and that Merck would present a vigorous and well orchestrated defense focusing
on the plaintiff," Placitella said following the verdict. "There will be wins
and losses during the course of this litigation for both sides, depending upon
the facts as presented in individual cases."

Citing the early lawsuits for asbestos health issues, Placitella pointed out that first six asbestos cases were lost before the asbestos companies' conduct was fully explained and revealed. "That is not the case here. One jury has already found the drug maker's conduct so reprehensible that they awarded $250 million," he emphasized. "The liability evidence introduced was compelling."

Placitella, who has been conducting national liability discovery against
Merck, which he says has yet to be used in a trial against the drug maker,
stated, "Discovery of new evidence in the VIOXX cases continues and new
evidence will surface in every case we try over the next year."

He added, "Our trial team, which comprises not only the lawyers who won
the case in Texas, but also some of the best law firms in the United States,
looks forward to trying the next case against Merck."

Texas paper's article on Vioxx Trial #2

From the Houston Chronicle.com:

Among other things, the article notes:

This lawyer didn't make marketing and Merck's deceptions on science the center of the case," said Lanier, whose client in August won the $253 million wrongful death suit against Merck after a jury blamed Vioxx for the death of her husband. "And that was a mistake because that's the most compelling part."

Lanier said the lawyer instead chose to focus too much on medical problems experienced by the plaintiff.

"I think first you have to educate the jury about the drug, what Merck knew, when Merck knew it, what Merck did with its knowledge," Lanier said.

A majority of the jurors in the Angleton trial said Merck's aggressive marketing of Vioxx led to their decision to award Lanier's client, Carol Ernst.

Lanier is scheduled in January to begin yet another Vioxx trial, this time in New Jersey, where he will employ that strategy. He said Thursday's decision won't help Merck in appealing the Ernst case.

"Texans are fiercely independent," he said. "We don't have appellate judges that are going to change their minds because of what some unknown jurors did in Atlantic City, N.J."

One thing most legal experts agree on is that Merck's victory Thursday staves off the flood of new Vioxx filings that would have followed a finding against the drugmaker. Personal-injury cases against large corporations are usually done on a contingency-fee basis, in which a lawyer collects a percentage of any award. If the case is lost, the attorney doesn't get paid and has to eat any upfront costs, such as fees for court filings, expert witnesses and hotels.

A veteran New Jersey personal-injury lawyer who was close to the Humeston case estimated Seeger's firm spent $4 million to $5 million to prepare for and conduct the seven-week trial.

Chronicle reporter John C. Roper and the Associated Press contributed to this story.
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Vioxx Trial #2 Verdict

If you had to do a quick analysis of the result:

The ten lawyer supergroup who are going off on their own - nothing changes.

The next trial is late November in Houston.

10:45 A.M. Merck: Defense Verdict in Humeston Trial

More later in the day.

Drug Company suggests that FDA Pre-approve all drug ads

From multiple sources, including Yahoo, Reuters, and the drug company's info sites:

AstraZeneca has suggested a mandatory requirement for pharmaceutical companies to submit all direct-to-consumer advertising to the U.S. Food and Drug Administration for review prior to its use.

AstraZeneca - maker of Crestor - will accept guidelines on direct-to-consumer advertisements, and the principles are reflected in its new ads, including those for Nexium.

My comment: Smart. Very smart. I don't think other drug companies will agree with this approach, however.

FDA's new online "PDR-ish" database

You can find it by going to the link below. What is a nifty feature - if it works - is that label changes will be added to this site within 24 hours of changes being made.

Go here for more information.

According to the FDA announcement:

"These new electronic product labels will be the key element and primary source of medication information for "DailyMed" -- a new interagency online health information clearinghouse that will provide the most up-to-date medication information free to consumers, healthcare providers and healthcare information providers. This information can be accessed through the National Library of Medicine at http://dailymed.nlm.nih.gov.

In the future, this new product information will also be provided through facts@fda.gov, a comprehensive internet resource designed to give one-stop access for information about all FDA-regulated products."

Vioxx Plaintiff's Closing: Is this too trite?

The attorney for Humeston has said in his closing that Merck is wrong for implying in their closing argument Mr. Humeston -- was lying.

"I believe in him. I believe in his wife. I believe in this cause," Seeger said.

I may be too harsh, but that sure sounds hokey.

Vioxx Trial Closing Argument: Merck Atty in trouble again

Judge Higbee scolded Merck lawyer Diane Sullivan for breaking an agreement on what can be said in the courtroom. Higbee told Sullivan that Sullivan's objection to a reference made by plaintiff's attorney Christopher Seeger during his closing statement was improper.

The issue related to the lack of witness testimony from FDA personnel.

My comment: If counsel ever gets to finish, the jury verdict could be in by Thursday morning.

Salmeterol/Serevent - information burying?

Does salmeterol (Serevent) (known as Advair when combined with the steroid fluticasone) cause paradoxical bronchoconstriction? A trial conducted three years ago suggested it did, but has yet to see the light of day. Why is that?
Salmetrol is compared to Serevent and Advair. Paradoxical bronchoconstriction is a rare complication of bronchodilator therapy. Although theories have been proposed about components of albuterol solutions and preservatives as causative agents, the true mechanism of the phenomenon remains unknown. See here.

Glaxo Smith Kline tried to bury the findings. Did it also deceive the FDA by muddling up the figures from the trial, omitting the more damning data?.

Incredibly an article/editorial in the Lancet says that there is no pressure from the FDA.

In 1996 the company conducted a trial comparing salmeterol to a placebo. The results have never been published.


The Salmeterol Multicenter Asthma Research Trial (SMART) was designed to study 60 000 asthma patients to either salmeterol or a placebo. The study duration was 28 weeks, with patients examined about every 4 weeks. Investigators were also asked to report (but not actively seek out) any serious adverse event that occurred within 6 months after the patient completed the trial.

The primary outcome was combined respiratory-related deaths and life-threatening experiences; secondary outcomes included asthma-related deaths, asthma-related deaths or life-threatening experiences, and all-cause deaths.


GSK submitted its SMART data at a 2003 meeting of the American College of Chest Physicians. Based on the interim data, on Aug 11, 2003, the FDA modified the labelling for both Serevent and Advair to include a black box warning of a “small but significant increase in asthma-related deaths”.

In July of 2005 the Advisory Committee meeting asked that the company add to its label for both Serevent and Advair that those who used either would be encouraged to also use an inhaled corticosteroid use.

The SMART study was terminated nearly three years ago. Why the delay in publication?

Zevalin: Severe Skin Reactions w/ usage

Severe and sometimes fatal skin reactions have been reported in patients treated with Biogen lymphoma drug Zevalin, the U.S. Food and Drug Administration reported.

The reactions were reported in patients treated with the approved Zevalin regimen, which includes Rituxan.

From various sources, including Biogen's site.

Humeston Vioxx Trial #2: Handicapping the Verdict

Closing arguments are going on now in case number two involving a man who had suffered a Heart Attack. The trial is only the 2nd to date.

What may be the result? Given that the man took it for less than three months, is back to work, and is from many accounts in good shape from a physical appearance - that coupled with the juror makeup for this case -

I think a verdict in excess of $200,000 is a decent win. Of course it cost more than that to get this case ready, but that is a win. A verdict from $400K to $600K would mean bad news for Merck in more ways than one. Valuing for business purposes this case - short ingestion period, MI with claimant back to work - in that range will make others with similar cases comfortable with the value of a claim of an injured client.

Best case: Zero verdict obviously for Merck. If the verdict is less than $100K that may or may not help. It would need to be less than $50,000 in order for Merck to claim a win in a verdict against it.

Best case, Plaintiff: If the verdict is in excess of $1M, watch out.

My guesstimate: 20% chance it's a defense verdict. If it's a Plaintiff's verdict, it will be between $250,000 and $600,000.

Can any trial attorney say that this is not the most worrisome part of the trial? When a juror is making the real closing argument?

Vioxx MDL Update 10/27/05

In October's conference, Judge Fallon said that said that the thousands of state trials to be pursued by the "Supergroup" of 10 Attorneys in the news recently would counteract the MDL's goal of reaching a global settlement of all Vioxx cases.

Judge FAllon has voiced a clear desire that state cases are to be brought into the same arena that holds the consolidated federal cases under his Court, so that he can preside over trials and work towarda a proper resolution to all the litigation.

"Hopefully, these cases can be resolved short of trying every case. That's my hope," Fallon said.

My comment: He seems to be setting up a grid system based on his comments, which is to be expected.

Muraglitazar: News for Type II Diabetes

Bristol-Myers Squibb Statement On Muraglitazar, An Investigational Oral Treatment For Type 2 Diabetes:


PRINCETON, NEW JERSEY (October 27, 2005) -- As previously disclosed, on October 18, 2005, the U.S. Food and Drug Administration (FDA) issued an approvable letter for muraglitazar, Bristol-Myers Squibb Company's (NYSE: BMY) investigational oral medicine for the treatment of type 2 diabetes. The FDA requested additional information from ongoing clinical trials to more fully address the cardiovascular safety profile of muraglitazar. We and our partner, Merck & Co., Inc., (Merck) have determined that to receive regulatory approval and to achieve commercial success, additional studies may be required because the ongoing trials were not designed to answer questions raised by the FDA. The additional studies could take approximately five years to complete.

In addition, Bristol-Myers Squibb has agreed to begin discussions with Merck to terminate the collaborative agreement.

Bristol-Myers Squibb will continue discussions with the FDA and will consider a range of options including conducting additional studies or terminating further development of muraglitazar.

Go here for more information.

Humeston Case: Defense rests

The defense rested in the 2nd Vioxx product liability trial after defendant Merck & Co. presented a cardiology expert as its final witness.

The last witness was Dr. John Michael Gaziano, a Harvard Medical School professor. Surprise surprise, he testified that he believes there is no link between Vioxx and heart attacks - even with long-term use.

Instructions Thursday.

Vioxx Split among attorneys

Mark Wahlstrom put this perfectly:

This has been building behind the scenes, as articles starting leaking out in the business and legal press about how the plaintiff steering committee works on MDL and Mass Tort litigation, but a major rupture in the united front by the trial lawyers was announced in the WSJ.


Attorneys have acted to create a supergroup - sort of like a legal version of former supergroup "Asia" apart from the group handling the federal multi district litigation in New Orleans, LA.

Attorney Mark Lanier - who hammerered Vioxx - and who had expressed some displeasure earlier this month in having to pay fee's and funds to the steering committee for work that he essentially felt was totally a result of his own firm's efforts.

Mark said: "What makes this split so profound is that now Merck is going to have an extraordinarily difficult time getting a "global settlement" of the Vioxx case, as the stated goal of the new group is to drive up values, max out individual cases, and for lack of a better analogy, turn this into more of an asbestos type litigation as opposed to a phen-fen global settlement. The former a long term, case to case, individual firm process, and the latter a comprehensive global settlement negotiated by committee."

RSI study out

Early nerve damage caused by repetitive motion on the job can cause "sick worker" syndrome, a fatigue or depression that can be mistaken for poor work performance, according to a study published in this month's Journal of Neuroimmunology.

For more information, go here.

Ipod Nano litigaiton

I bought one. I just want one that works.
To find out more, click here.

The class action follows a from iPod Nano users who reported cracked and scratched screens.

If I get mine replaced, I'm fine. I love it and my iPod Shuffle.

Lawyers, Witness Bicker @ Vioxx Trial #2

This past Friday Dr. Barry Gertz was on the stand again at the Humeston trial. Plaintiff's counsel showed jurors many e-mails and Merck internal papers.

One note was in the good doctor's handwriting. The note was from an October 2000 meeting between Merck and consultants. The note had on it a mention that a Merck employee should "reduce the emphasis on MI."

Diabetes drug unsafe? (Pargluva)

A new diabetes pill headed for approval has been linked to deaths, heart attacks and strokes, a medical journal reported this week. (JAMA)

The study found two times as as many deaths and heart problems in adults with Diabetes taking Pargluva than those on placebos. The drug treats Type 2 diabetes.
The drug had been ok'd by the FDA in September.

JAMA pushed it online because of concerns over its safety. T

One website noted the drug could have meant a "public health catastrophe" given that 18 million Americans have diabetes.

Vioxx Trial #3 Postponed

From CNN, Reuters, Yahoo, and those litigating the cases:

The next Vioxx trial has been continued October 24, 2005 until as no earlier than April of 2006.

The Anna Guerra case would be trial #3. Mark Lanier representing the Estate of Ms. Guerra in Edinburgh, Texas. She died in 2001 of a pulmonary embolism after taking Vioxx for more than sixty days.


The first federal trial before Judge Fallon is set to begin in Houston, TX on Nov. 28.

A bit more tech: A new search site

Somehow this site made it's way to my email in box, and it may be worth a look:

It's rollyo.com. According to the site:

"Your searchroll is a collection of the sites you trust and find useful. It's a personal search engine you create to provide relevant results from a hand selected list of reliable sites. You can make as many searchrolls as you want. Just enter the sites you want to search and you'll be off and rolling ."

It may be a time waster, or it may be a useful tool. You decide.

More bad news for Zyprexa, Risperdal & Seroquel

From various sources including Reuters and Yahoo.com:

Drugs treat elderly patients with dementia-related symptoms may raise their risk of death.

Researchers reviewed the results of multiple studies on drugs known as atypical anti-psychotics and sold under the brand names Zyprexa, Risperdal, Seroquel and Abilify.

Of the 5,000+ elderly dementia patients each faced a 54 percent increased risk of death within 12 weeks of taking the drugs. A total of 118 deaths in the group of 3,353 drug users, versus 40 in the 1,757-patient placebo group, or 3.5 percent compared with 2.3 percent. The risks were similar for each of the drugs.

What is notable is that each drug was approved for treating schizophrenia and bipolar disease - not elderly dementia. "Off-label" uses are common and often legal.

The FDA warned in early 2005 that the drugs had been linked to deaths from heart failure and pneumonia. The labels were only recently changed.

You can also go to JAMA to check out the abstract article on this subject. Go here for more information.

Sportslaw: Coach Mike Price settles with S.I.

From my good friend Mark Wahlstrom's blog, found here:

"In a case closely watched here on The Settlement Channel football coach Mike Price today announced the settlement of his defamation case against Time, Inc, and it's Sports Illustrated magazine. A summary of the case is available here at ESPN.com, which outlines some of the facts of the case.

Our particular interest was in the ruling back in August of this year that Sports Illustrated was going to have to divulge their "confidential source" so that Coach Price's attorney would have the ability to depose her, as that confidential information was at the heart of the allegations of Price's impropriety at a topless club, which eventually led to his dismissal by the University of Alabama.

Price has contended all along that while he did drink to excess that day, and he would certainly like to have that day to do over, that the Sports illustrated article was rushed to publication, facts were omitted, false items inserted as fact, and all of it done under the cloak of anonymity of the source of the allegations. As many know Coach Price eventually landed a job at University of Texas at El Paso, or UTEP, and is now coaching there, albeit at a much lower salary then what he stood to earn at Alabama.

While it would have been intriguing to see how the first amendment issue was going to turn out, and if Sports Illustrated would be forced to divulge their source, Coach Price declared himself as "very happy" with the amount of the settlement. Obviously, Time, Inc. took stock of their position legally on this, realized they might have to admit the "source" was fictional, or at least not what they alleged, and that the potential of a massive verdict was likely."

Good work Mark!

I'll be on Civil Action Radio next month at the MTMP conference in Vegas.

Blog Pollution

I'm sure you have run across this. I am in the process of trying to find an attorney in Michigan to assist on a matter. I think to myself: "Self, why not check to see if an attorney in that state has a blog?"

I type in that, and get a blog loaded with ads and links. No news, mind you, just a trash site. You can find it here.

I see this more and more each day when I'm online. It will get much much worse before it gets better. While attorneys at navel gazing blogs want to codify blog rules, in my opinion all would be better served by working on a way to end the net of blogs like the one I found.

Years of Vioxx Litigation?

An interesting read from newsday.com:

The writer for newsday reports that if Merck loses the second trial, characterized as a "relatively weak case" one lawyer who saw the first trial in Texas said the company "should" talk settlement.


"David Berg, who practices both in Houston and New York, pointed to the swift recovery of Halliburton's stock price after the company announced it was putting aside $5 billion to settle hundreds of thousands of asbestos lawsuits. By doing the same, Merck could refocus Wall Street's attention on its other strong drug offerings _ including a new vaccine against the virus responsible for causing cervical cancer."

The article then quoted others as saying it's too early for that.

There is too much variety - in how much Vioxx plaintiffs or their loved ones have taken, and the harm they said it caused - to have be answered by just the first two verdicts, according to one professor who was quoted.

My comment: If this is a loss, there will not be a change in any short term strategy. What I see as perhaps defining where the Vioxx litigation goes is the decision by the MDL Judge (Fallon) to try four distinct injury cases - one after another - in his courtroom beginning late this year and going through the next. With verdicts for the injured parties in any or all of those you could see the initial formation of a mass settlement grid.

October Tech/This and that

Thanks to those who take the time to read this blog, it appears I've somehow passed 10,000 impressions a week.

For this month's this 'n that, not tech, but a blog: Wild Snow's blog. You can find it here. Not law related, but it's Friday and you can see at least one thing I enjoy that is not law related: outdoors, particularly backcountry skiing.

Lots of tech goodies to the sport including transponders and more.

FDA Update on Guidant

You can find it here.

According to the site:

"Guidant has informed [the FDA] that six (6) additional clinical occurrences (of which FDA has 4 confirmed reports) exhibiting this failure mode worldwide have been reported for the Contak Renewal® and Renewal® 2 devices since our July 14, 2005 PPHN, for a total of 21 clinical failures, including 3 patient deaths, worldwide as of October 7, 2005. You should take these failures into account as you continue to follow the patients who retain either device."

Podcast worth checking out: NPR's comment on FDA problems

From the NPR site, and it's worth a listen

"The sudden resignation of Food and Drug Administration Commissioner Lester Crawford in September again highlights problems at the agency. The FDA regulates products that account for one of every four dollars spent in the United States. But some say recent missteps could be costing FDA the credibility it needs to assure the safety of all Americans."


Find it here.

Vioxx Suits: By the numbers

More than 1,000 new Vioxx cases have been filed in New Jersey alone since mid-August as well as nearly 800 in September of 2005.

The new total includes 3,481 cases filed and docketed as of late this week in New Jersey. There are another 2,200 USDCT cases filed. More than 410 have been transferred to federal court for the Eastern District of Louisiana before Judge Fallon.

Merck Defense: Experts says Vioxx is "safe"

Yesterday a Merck witness testified at the Humeston trial that it was "completely outrageous" to claim that the company put profits ahead of safety.

As most following the Vioxx cases will know, a Merck study (VIGOR) compared Vioxx with other painkillers as to stomach bleeding. The witness said she assumed that Vioxx had no effect on heart attacks and strokes.

She actually testified that Merck "thought, based on the totality of the data, that naproxen had a cardioprotective effect."


My comment: Merck defense seems to be: Vioxx safe. Client sick.

Vioxx Trial #2: Was the Court "misled" by Merck counsel?

Friday during the Humeston Vioxx trial, Judge Higbee addressed the day prior's testimony. Higbee said she felt misled and sickened after rereading a part of the transcript of a Merck researcher who said studies in the late 1990s showed the pain reliever would not cause heart damage. The comments were made outside the presence of the jury. The Judge then struck the testimony Dr. Morrison from the record because she said he was not an expert on the studies he had told the jury about.

Defense counsel then engaged in a heated discussion with the Judge. Judge Higbee said "I felt sick last night" about the testimony. Higbee also said she was was "misled repeatedly" with this testimony.

Morrison trial testimony was vastly different from what he had said in deposition about internal studies to determine whether Vioxx posed heart risks. Also, Morrison testified that Merck had conducted studies on dogs, rabbits and elderly people - and that these studies indicated that Vioxx did not trigger heart problems. Morrison failed to mention those studies in the deposition.

Things went downhill from there. The Judge allegedly admonished defense counsel. Some described what went on as a "shouting match." Another expressly heard the Court tell defense counsel to be quiet or risk being taken from the courtroom by the bailiff.

Judge Higbee refused to declare a mistrial, despite defense counsel seeking one.

My comment: In my humble opinion, is this anything new? Allegations that Merck misled the FDA, misled doctors, misled consumers, now misled a Court? Are we seeing a pattern here allegedly?

Significant ERISA case in GA: Summerlin

Summerlin v. Georgia-Pacific Corp. Life, Health and Acc. Plan


Ray Summerlin was a covered person in the Georgia-Pacific Corporation Life, Health and Accident Plan ("the Plan"). His dependent spouse, Janet, was also covered by the Plan. The Plan was self-funded, and governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (ERISA).

In 1999, Mrs. Summerlin incurred medical expenses which were paid by the Plan for $80,597.04.

Mrs. Summerlin filed a malpractice suit against her treatment providers, and the suit was settled for $115,000. In February 2003, after attorney's fees and costs were deducted, Mr. and Mrs. Summerlin received a check for $52,217.23. As you may imagine, the recovery did not fully compensate wife or husband for her injuries, including medical expenses, lost wages, and pain and suffering.

The Plan contends that because it paid benefits of $80,597.04 for expenses arising from the Summerlins' medical malpractice claim and because the Summerlins recovered from a third party on that claim, the Plan should be reimbursed the benefits paid relating to the medical malpractice claim.

The Plan relies upon the following subrogation and reimbursement provisions in the Plan contract: " If you receive any payment (whether or not characterized as reimbursement for a medical expense) as a judgment, settlement or otherwise from any person or entity (including and without limitation to the third party's or your own insurance company) with respect to the sickness, injury or other condition which gives rise to expenses which the Plan pays, including any such payment made as a result of the requirements under a "no-fault" motor vehicle insurance statute or other similar legislation, or under the personal injury projection provision in an automobile insurance policy, you shall reimburse the Plan from such payments to the extent of the expenses paid under the Plan regardless whether the judgment, settlement or other payments allocates any specified amount to reimbursement for medical expenses and regardless whether such expenses are paid prior to or after the date of such judgment, settlement or otherwise. The Plan Administrator has the discretion (but is not required) to estimate the future amount of such expenses in lieu of requiring you to reimburse the Plan as such expenses are incurred."

After being paid funds pursuant to the settlement agreement the Summerlins did not reimburse the Plan for the claims it paid on Mrs. Summerlin's behalf. Based on the reimbursement and offset provisions, the Plan's third-party administrator, Wausau Benefits, notified Plaintiff of its intent to offset future claims for Plaintiff and his dependents until the Plan is reimbursed the $80,597.04 it paid on behalf of Mrs. Summerlin.

Plaintiff has incurred, and continues to incur, medical expenses covered by the Plan that are unrelated to Mrs. Summerlin's 1999 claims, and the Plan's third-party administrator has begun offsetting the amount it contends the Plan is owed for the benefits paid on behalf of Mrs. Summerlin against the amounts due on Plaintiff's claims. She filed suit against the Plan, seeking damages and an injunction against further offsetting by Defendants.


The Plan's third-party administrator, Wausau Benefits, Inc., was originally named as a Defendant in this case. The parties have stipulated that Wausau Benefits should be dismissed with prejudice. Accordingly, Defendant Wausau Benefits, Inc., is dismissed from this action with prejudice. The only remaining Defendant in this case is Georgia-Pacific Corporation Life, Health and Accident Plan.


The Court's discussion is key here.


1. The Georgia Anti-Subrogation Statute Does Not Apply in this Case

Plaintiff contends that he is not obligated to reimburse the Plan because Georgia's anti-subrogation statute, O.C.G.A. § 33-24-56.1, applies and prevents the Plan from requiring reimbursement of *1208 the payments made on behalf of Mrs. Summerlin-and from enforcing the reimbursement claim via setoff-because the settlement did not make Mr. and Mrs. Summerlin whole. O.C.G.A. § 33-24-56.1 provides that benefit providers, including employee benefit plans, may require reimbursement of medical expenses paid on behalf of an injured party in the event of a recovery for that personal injury from a third party. O.C.G.A. § 33-24-56.1(b) (2004). There is a limitation to this rule: reimbursement may be required only if the amount of recovery exceeds the sum of all losses incurred as a result of the injury. Id. Furthermore, under this law, benefit providers may not withhold or set off insurance benefits as a means of enforcing a claim of reimbursement. O.C.G.A. § 33-24-56.1(f).

The parties have stipulated that the settlement was not sufficient to fully compensate Mr. and Mrs. Summerlin for their injuries. Therefore, if the complete compensation rule of O.C.G.A. § 33-24-56.1 applied in this case, Defendants would not be entitled to seek reimbursement from the Summerlins or to set off the amount the Plan paid on behalf of Mrs. Summerlin against Plaintiff's benefits. See O.C.G.A. § 33-24-56.1; Thurman v. State Farm Mut. Auto. Ins. Co., 278 Ga. 162, 164, 598 S.E.2d 448, 451 (2004). But if ERISA preempts O.C.G.A. § 33-24-56.1, the statute would not apply to prevent Defendants from enforcing the reimbursement claim.

ERISA preempts all state statutes that "relate to" employee benefit plans. 29 U.S.C. § 1144(a); see also FMC Corp. v. Holliday, 498 U.S. 52, 58, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990); Swerhun v. Guardian Life Ins. Co., 979 F.2d 195, 197 (11th Cir.1992). There is an exception to this rule: under ERISA's "saving clause," a state statute that "relates to" an employee welfare plan may escape preemption if it regulates insurance. See 29 U.S.C. § 1144(b)(2)(A); see also Ky. Ass'n of Health Plans, Inc. v. Miller, 538 U.S. 329, 334, 123 S.Ct. 1471, 155 L.Ed.2d 468 (2003); Swerhun, 979 F.2d at 197. But there is an exception to the exception: even if the state law at issue falls within the saving clause, ERISA's "deemer clause" exempts certain ERISA plans from state regulation. See 29 U.S.C. § 1144(b)(2)(B); Holliday, 498 U.S. at 61, 111 S.Ct. 403; Swerhun, 979 F.2d at 197.

Defendant contends that O.C.G.A. § 33-24-56.1 is preempted by ERISA and therefore does not apply in this case. There is no contention that the Georgia anti-subrogation statute does not "relate to" ERISA covered plans. Therefore, if the statute is not saved by ERISA's saving clause or if the Plan in this case is exempt from the statute by virtue of ERISA's deemer clause, the Georgia anti-subrogation statute does not apply.

Defendant is correct that ERISA preempts O.C.G.A. § 33-24-56.1 in this case. Pretermitting the question whether O.C.G.A. § 33-24-56.1 is saved by ERISA's saving clause, [FN2] the Plan in this case is exempted from the reach of the statute by virtue of ERISA's deemer clause. ERISA's deemer clause exempts *1209 certain ERISA plans from state laws that "regulate insurance" within the meaning of the saving clause. 29 U.S.C. § 1144(b)(2)(B); Holliday, 498 U.S. at 61, 111 S.Ct. 403. The Court in Holliday held that the deemer clause exempts self-funded ERISA plans from state laws that "regulate insurance." Holliday, 498 U.S. at 61, 111 S.Ct. 403. Because the plan at issue in Holliday was a self-funded welfare benefit plan, ERISA preempted the application of Pennsylvania's anti-subrogation statute to the plan. Id. at 65, 111 S.Ct. 403. The Plan at issue in this case, like the plan in Holliday, is a self-funded welfare benefit plan governed by ERISA, so it is exempt from O.C.G.A. § 33-24-56.1 under ERISA's deemer clause. Therefore, the Georgia statute does not apply to prevent Defendants from enforcing the reimbursement claim. See 29 U.S.C. § 1144(b)(2)(B); Holliday, 498 U.S. at 61, 111 S.Ct. 403.


2. The Make-Whole Doctrine Applies in this Case

Plaintiff argues that even if Georgia's anti-subrogation law does not apply, allowing Defendants to demand reimbursement in this case is against public policy because Plaintiff has not been made whole. Under the make-whole doctrine, "an insured who has settled with a third-party tortfeasor is liable to the insurer-subrogee only for the excess received over the total amount of his loss." Guy v. Southeastern Iron Workers' Welfare Fund, 877 F.2d 37, 39 (11th Cir.1989). In the Eleventh Circuit, the make-whole doctrine is the default rule in ERISA cases. Cagle v. Bruner, 112 F.3d 1510, 1521 (11th Cir.1997). The parties can, however, contract out of the doctrine. The make-whole doctrine does not apply if there is "clear language rejecting it" in the insurance contract. Id. at 1521-22. For a plan to escape the doctrine, "it need only include language in the plan explicitly providing the [plan] with the first right of recovery, even when a participant or beneficiary is not made whole." Id. at 1522. The ERISA plan at issue in Cagle did not contain any clear language rejecting the make-whole doctrine, so the doctrine applied to that case, and the plan was not allowed to recover from any third party until the beneficiary was made whole. Id.

The Plan at issue in this case has two relevant reimbursement options: the "Offset Option" and the "Agreement Option." Paragraph 7 contains the Offset Option, which provides that any payments received as judgments or settlements to compensate for expenses which the Plan paid may be offset against future claims the participant makes under the Plan. The Offset Option does not require a written agreement. Paragraph 6 contains the Agreement Option, which requires the participant to sign a written reimbursement agreement establishing a lien on any recovery. If the participant does not sign such an agreement, the Plan may refuse to make benefit payments.

It is clear that the Plan rejects the make-whole doctrine under the Agreement Option because paragraph 6 specifically states that the Plan has the right of first recovery, even when a participant or beneficiary has not been made whole. However, such language does not appear anywhere in the Offset Option-there is no language in paragraph 7 clearly rejecting the make-whole doctrine. Furthermore, there is no language clearly rejecting the make-whole doctrine in paragraph 5, which is referenced in paragraph 7 as describing which payments must be reimbursed to the Plan. Under the Plan's interpretation of the contract, it is immaterial that the Offset Option does not specifically reject the make-whole doctrine. Rather, the Plan asserts that the right of first recovery *1210 language in paragraph 6 should be read into paragraph 7. The Plan further contends that its decision to offset Plaintiff's benefits under this interpretation is entitled to deference.

[5] The Plan is correct that its decision to offset under this interpretation is subject to the arbitrary and capricious standard of review. A denial of ERISA benefits is subject to de novo review unless the benefit plan gives its administrator discretionary authority to construe the terms of the plan. If the plan does reserve that discretion to the administrator, the arbitrary and capricious standard of review applies unless the administrator's decision creates a conflict of interest. Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Cagle, 112 F.3d at 1516. Section 27 of the Plan provides: "The Plan Administrator has the exclusive responsibility and complete discretionary authority to control the operation and administration of this plan, with all powers necessary to enable it to properly carry out such responsibility, including but not limited to, the power to construe the terms of this plan[.]" (Stipulation of Facts Ex. C at 77.) Plaintiff does not contend that there is a conflict of interest. Therefore, the arbitrary and capricious standard of review applies in this case.

[6] [7] [8] Under the arbitrary and capricious standard of review, the Court is limited to determining whether "the contested interpretation was made rationally and in good faith." Blank v. Bethlehem Steel Corp., 926 F.2d 1090, 1093 (11th Cir.1991); accord Cagle, 112 F.3d at 1518. There are a number of factors the courts take into account to determine whether an interpretation was arbitrary and capricious, including "the uniformity of the [Plan's] construction, the reasonableness of its interpretation and possible concerns with the way unexpected costs may affect the future financial health of the plan." Blank, 926 F.2d at 1093. The key factor that applies in this case is the reasonableness of the interpretation. The Plan argues that "the circumstances under which the Plan may seek reimbursement are determined by the subrogation language as a whole." The Plan further contends that there is an ambiguity as to whether the make-whole doctrine is rejected across the board and that this ambiguity must be resolved in favor of the Plan administrator's interpretation. But the contract clearly gives the Plan two options for seeking reimbursement. Only one of these options includes the right of first recovery language. The two reimbursement options are separate and distinct. The options do not reference each other, nor do they depend upon each other. Therefore, it would be incongruous to extract a portion of one option and read it into the other. The Plan's interpretation is unreasonable. Consequently, the Court cannot find that it was made rationally and in good faith. Thus, the Plan's interpretation fails because it is arbitrary and capricious. Under the Plan as it is drafted, a reimbursement agreement must be executed for the right of first recovery provision to apply.

The Plan also contends that not reading the right of first recovery language into the Offset Option would lead to inequitable results and create incentives for participants to violate the Plan by not signing reimbursement agreements. These arguments are without merit. The Plan drafted its own contract. If it wanted to escape the make-whole doctrine under the Offset Option, it could have included language in paragraph 7 explicitly providing that the Plan may offset payments received from third parties against future claims even when the participant or beneficiary has not *1211 been made whole. Furthermore, under paragraph 6, the Plan may withhold benefits from those participants who refuse to sign reimbursement agreements. Therefore, it has a remedy under paragraph 6 to assure compliance with the Plan agreement. The Plan's failure to enforce its own Agreement Option should not be remedied, however, by a tortured reading of the Plan contract that arbitrarily extrapolates the "right of first recovery" language from paragraph 6 and deposits it into paragraph 7. Again, under the Plan as it is drafted, a reimbursement agreement must be executed for the right of first recovery provision to apply. Therefore, the Court finds that the Plan does not clearly reject the make-whole doctrine under the Offset Option and that the Plan's interpretation to the contrary was arbitrary and capricious. For these reasons, the Plan is not entitled to offset Plaintiff's claims under paragraph 7.

3. The Reimbursement Agreement

[9] The Plan contends that even if it is not entitled to offset under paragraph 7, it is still entitled to reimbursement under paragraph 6 because Mr. and Mrs. Summerlin "almost certainly" signed a reimbursement agreement. [FN3] However, despite its "best efforts," the Plan has not been able to locate a copy of the agreement. Plaintiff does not recall signing such an agreement.



FN3. Plaintiff correctly observes that he cannot assign his wife's rights. See Rest.2d of Contracts § 324 (1981); see also Bank of Cave Spring v. Gold Kist, Inc., 173 Ga.App. 679, 680, 327 S.E.2d 800, 802 (1985) (noting that assignor must intend to make the assignment). The Plan's contention, however, is that both Mr. and Mrs. Summerlin signed the agreement, not that Plaintiff signed an agreement purporting to assign his wife's rights.



For the Plan to rely upon a reimbursement agreement, it must prove that such an agreement was executed. The Plan's evidence of this agreement is an affidavit from an employee of its third-party administrator stating that the Summerlins "almost certainly" signed a reimbursement agreement. The employee came to this conclusion for two reasons: 1) letters to the Summerlins regarding their claims specifically reference a reimbursement agreement, and 2) the Summerlins' file did not contain correspondence from the Summerlins indicating that they refused to sign a reimbursement agreement.

Generally, to prove the contents of a writing in federal court, the original writing is required. Fed.R.Evid. 1002. If the original writing cannot be produced because it has been lost or destroyed through no fault of the party seeking to rely upon it, the party may be permitted to introduce secondary evidence of the contents of the writing. Fed.R.Evid. 1004(1); see United States v. Holley, 463 F.2d 634, 637 (5th Cir.1972). It is true that the question whether a writing existed and whether the secondary evidence accurately reflects its terms is a question for a trier of fact rather than the court, but the proponent of the writing must introduce some evidence of the existence and contents of the original to get to the factfinder. See Fed.R.Evid. 1008. The Plan has failed to introduce evidence sufficient to allow a trier of fact to find the existence and contents of a reimbursement agreement between the Summerlins and the Plan. The Plan cannot state with certainty that there actually was a reimbursement agreement. Its third party administrator's employee had no personal knowledge regarding whether Plaintiff signed an agreement. She opined simply that Plaintiff "almost certainly" signed an agreement because under the Plan's administrative procedures, Plaintiff would not have received a letter referencing a reimbursement agreement unless he had signed an agreement. *1212 This is not enough. The Plan has not introduced evidence, e.g., of the terms of the "lost" agreement; it has introduced no evidence that the Plan routinely required every participant and beneficiary to execute an identical reimbursement agreement; and it has offered no evidence that Mrs. Summerlin signed a reimbursement agreement. For these reasons, the Plan has failed to prove that a reimbursement agreement between the Summerlins and the Plan was executed. Therefore, the Plan may not rely upon a reimbursement agreement to seek reimbursement from Plaintiff.

CONCLUSION

For the foregoing reasons, the Court denies Defendants' motion for summary judgment. Accordingly, per the stipulation of the parties, the Court orders Defendant Georgia-Pacific Corporation Life, Health and Accident Plan to pay all claims that have been, or may be, submitted for payment by Plaintiff or his dependents that would, except for the Plan's claim for reimbursement, otherwise be eligible for payment and payable by the Plan.

366 F.Supp.2d 1203 is the West cite.

Humeston Trial #2: ER doc says "clean arteries."

From various sources including Reuters:

This week Judge Higbee denied Merck's 5th Motion for a Mistrial since the trial began three weeks ago. This time, Merck argued a plaintiff's witness violated an order banning discussion of Merck's withdrawal of Vioxx. Higbee said jurors already knew Vioxx had been pulled from the market.

Monday, cardiologist Dr. Graham Wetherley also testified. He was E.R. doctor who treated Humeston for his heart attack. On the stand, the doctor described Humeston's heart vessels as large and healthy and said they didn't need a procedure to clear them.

Vioxx Trial #2: Plaintiff zings Defense counsel

During the testimony at the Humeston trial, Plaintiff has presented well. Under cross examination defense counsel was asking about a heart test Mr. Humeston underwent more than two decades ago. Mr. Humeston was understandably unable to recall specifics of that exam.

As defense counsel kept pressing, Humeston responded to a question with words to the effect that how could he (Plaintiff) be expected to remember vague facts as to a test more than twenty years ago, yet Merck's former research head (Ed Scolnick) could explain away forgetting the contents of a three year old email as to Vioxx causing deaths to patients in a clinical trial?


Those are the types of moments I live for in Court.

Vioxx Trial #2 takes the stand: Humeston trial

Frederick "Mike" Humeston testified Wednesday in his lawsuit against Merck & Co.

Humeston testified how he went from feeling "bulletproof" to "unmanly" after he was stricken. He's working thru the testimony and points, and the jury appears interested.

More later.

Did Merck hide death data from doctors as to Vioxx?

Edward Scolnick's testimony is front and center now. Scolnick is the former president of Merck Research Laboratories. His testimony can't help Merck, in my opinion.

Scolnick testified about two studies where Alzheimers-diagnosed patients ingested various dosages of Vioxx. In both studies, the clinical trial patients evidenced higher death rates than those in the control group who ingested only a placebo. The two studies were commenced to find if Vioxx would serve to delay the onset or worsening of the devastating effects of Alzheimer's.


Merck & Co. never notified physicians or its sales representatives of this result. He also admitted that the information regarding deaths among Alzheimer's patients was never mentioned or included in info cards that Merck sales reps used to answer potential queries by doctors.

Scolnick was asked to admit that the death data was important to doctors, and he said
"It's data the physician should know."

To access FDA information, go here. From that site:

In April 2002, FDA approved extensive labeling changes to reflect the findings from the VIGOR study. FDA also approved a rheumatoid arthritis indication at the 25 mg dose based on separate efficacy trials. The new label provided additional information to the Clinical Studies, Precautions, Drug Interactions and Dosage and Administration sections to reflect all that was known at the time about the potential risk of cardiovascular effects with Vioxx. These labeling changes included detailed information about the increase in risk of cardiovascular events relative to naproxen, including heart attack. It also included data from the ongoing placebo controlled Alzheimer's study at the 14 month time point which did not show an increase in CV risk. The new labeling change also noted that Vioxx 50 mg was not recommended for chronic use.

Vioxx Trial Notes for 9/26/05

Vioxx Trial Notes for 9/26/05, from various sources including Yahoo, Reuters, those there in the audience ...

On the stand all morning (day 3 of his testimony) is David Anstice. He is the head of human health division. Anstice said that Merck was worried about the impact on Vioxx's sales if the cardiovascular data was included in the "Warning" section of its label.

Humeston's attorney showed him a document that addressed the CVE mention in the "Warnings" section could have cut Vioxx's sales by up to 50% per year.

Counsel also showed the jury several documents that showed that several members of an "independent panel" advising Merck on Vioxx's label had previously received been paid by Merck for work.

Week three continues.

An excerpt from a Merck letter to the Editor

To the Editor of the Washington Post this Monday: You can find it here.

"Merck's scientists believed in the safety and efficacy of Vioxx. Many, including the president of Merck's research labs, took Vioxx themselves. When Merck learned in the fall of 2004 of a small increased cardiovascular risk of Vioxx against placebo, seen only after long-term, continuous use in a trial, it promptly acted to remove the drug from the market.

These are not the actions of a company with something to hide."

My comment: For my comment, see the notes on my blog.

Vioxx Trial #2: Ex Merck Researcher says FDA employees get a "D"

This is from various sources including the web and people sitting in the courtroom @ the Humeston trial:

Videotape testimony played: This week, a former Merck researcher Edward Scolnick, had his testimony played to the jury. He was questioned about emails he wrote raising concerns about the safety of Vioxx. "My worry quotient is high," was written in an April 2000 e-mail. He actually wrote: "I am actually in minor agony."

Scolnick also had concerns about the safety of Vioxx. He admitted that he wanted to work with a larger trial than had previously been done, but later concluded that the drug was safe.

One trial with 8,000 people in it, and whose results were published in March 2003 revealed 20/4,000 patients taking Vioxx suffered MIs, compared with 4 out of 4,000 who were taking naproxen.

Scolnick also admitted he was not happy when the FDA pushed to warn Vioxx users that the drug had a risk of MI's. Scolnick's opinion of FDA personnel wasn't very positive, to say the least. His internal email on FDA employees that evaluated the safety of drugs was the equal to "grade D high school students." (Ouch)

Not surprisingly, he suggested that Merck take an adversarial approach to the FDA.
"I have never seen being nice to the FDA, except on rare occasions, pay off," he wrote in an e-mail.

My comment: I think the term that describes this gentleman may be "bully?" Who coached this guy before his deposition?

A Must Read Account of Katrina, reprinted by permission

Many thanks Richard Eustis for this compelling essay post- Katrina. RICHMOND EUSTIS is a former staff reporter for the Daily Report. He is currently a doctoral candidate in Comparative Literature at Louisiana State University. He can be reached at reusti3@lsu.edu.

It was orginally printed in the Fulton County Daily Report which is published in Atlanta, GA. In emailing back and forth with Mr. Eustis, I asked if there was a specific group or organization to which I may donate, and he suggested among other the Louisiana State Bar. You can find more information and links for the LSB after this essay. It's very moving, and a piece that to me is unforgettable.




BATON ROUGE, La.—Every New Orleanian grows up steeped in water. It saturates the air on the city’s driest days. It laps at the shores of Lake Pontchartrain, where I sailed as a boy with my grandfather, father and uncles. And there is the Mississippi, the reason for the city, repository of American power and myth, carrying enormous freighter ships that pass level with the second story of my parents’ house two blocks away.

Water is our medium, our background music.

It is the backdrop against which most of our significant memories unfold: endless dinners of boiled seafood and Dixie beer at the lakefront, soggy Carnivals, stolen kisses on the levee with the river golden and scarlet in the fall evening, road trips to Pass Christian or Bay St. Louis to bathe in the Gulf and bask in the sun, football games in torrential afternoon thunderstorms. And always—always, always—the threat of The Hurricane. The one that would return our home to the waters. The one we always seemed to dodge.

To borrow a phrase from Norman Maclean’s novel “A River Runs Through It”: those who make their home in New Orleans are “haunted by waters.” The waters always lay in wait to claim their own. We knew it, and we laughed in their face, held parties in the shadow of fragile levees, named drinks after the natural disaster that would sink us one day.

My Last Visit

The last time I visited my home in New Orleans—two weeks ago—I barely spared it a glance. I was in a rush—in transit between a summer spent as a guide in the Wyoming backcountry and a fall semester at LSU that started far too soon. I stopped to spend the night at my parents’ house and eat a long breakfast with plenty of sweet rolls and chicory coffee. Then I raced west and north, cursing the heat and humidity. Why, I asked myself, hadn’t I just stayed in Jackson Hole?

On the Friday before the storm, I bypassed the city altogether as I made my way to east Tennessee to kayak the Ocoee River with friends. I assumed Katrina was another piddling Category 1 storm—the kind that always seems to knock out power in Mobile for six months but just affords my neighbors an opportunity for a hurricane party. After letting our frightened dog in for the night, my dad and brother would pour their usual tumblers of bourbon, light cigars and sit on our porch to watch the storm pass.
Thirty-three years of hurricane threats I had seen. Not one of them had ever landed a real blow. Of course, any riverboat gambler, any French Quarter casino sharpie, anyone who spent any time at the track at the Fairgrounds, could have told us that runs of luck like that don’t last.

When I finally turned on my cell phone late Saturday night, I intended to tell my parents that I would pass through New Orleans for a night on my way back to school in Baton Rouge. Instead I found message after message asking where I was and telling me that the storm looked horrendous.

A Call to Home

I called home immediately. The raucous raft guide party 50 yards away faded to a whisper.
“We’re going to Houston,” my mother said. “Your dad’s boarding up the house right now.”

My grandmother, aunts and uncles were going with them. My sister and her husband were fleeing to Atlanta.

If my father was leaving, this was serious. The Jim Bowie who died in the Alamo would have appreciated my father’s attitude to New Orleans.
Pop doesn’t like to venture farther than our place in Lafourche
Parish—about 80 miles away. He’d rather be home. Countless times my mother, grandmother and sister had fled for drier parts before a storm, while my dad stayed home, cooked a steak, watched a football game, and then cleaned up the yard and went to his law office the next morning.
“Some of us have work to do,” he said. My sister—also a lawyer—has adopted much of his attitude.

But this time he sensed the danger was for real. He and my mother now have an apartment in Houston. He refuses to unpack his suitcase. The Central Business District will have power soon, he reasons, and someone will have to get to work. He also checked out a satellite photo of our house Uptown. The deck is still in one piece, and the roof is still on, so he might as well go back.
He hasn’t yet. He can’t. No utilities yet, and there’s the threat of diseases that haven’t surfaced there since the 19th Century. Not even the courts are open yet—and there’s no telling when they will. The Fifth Circuit federal appeals court may be out of its magnificent New Orleans digs for a long time.


A Changed Baton Rouge

I returned to Baton Rouge on Tuesday, running backroads to escape the Interstates rumored to be impassable. I drove through ditches and over logs to get through. The side of the road was lined with people dragging salvaged belongings, or those who had run out of gas. The radio crackled with spotty AM stations desperately conveying what little information they had to whomever had survived and could listen.
Highway 90 in Mississippi, the conduit to so many spring weekends on the gulf shores: gone. Not just impassable. Not there. As if nature had tired of it and decided to erase it forever. The owners of convenience stores stood in their doorways with shotguns.

Working in a Shelter

The next day I started work as a medic in the evacuee shelter at the River Center in downtown Baton Rouge. My cable was out, so no TV or Internet news prepared me for the crowds: The young, the sick, the hurt, the scared, the old.
My medical training is as a Wilderness First Responder; I can dress wounds, splint breaks, reduce dislocations, wrap the hypothermic and immobilize spinal injuries. But I was dealing with diabetes, with heart conditions, sores and ailments brought on by filthy water, people so sick and scared and traumatized we hardly knew what to do with them. All of them had spiritual hurts I could do nothing about.
One seven-foot giant of a man arrived barely sentient, able to do nothing but cradle his face in his hands and weep. He had been trapped in the Superdome, and could not locate his wife and five children. One woman, once a nurse, had suffered a stroke, and refused to be parted from her husband to receive the care she needed. We had at least a dozen children whose parents were missing.

The first days were terrible—barely organized, supplies short, and hurts deep. Without the few doctors and exhausted nurses who kept the clinic running, the body count already would be much higher than it is.
Since then things have improved. A team of doctors has set up in the clinic, and we have plenty of supplies. My cousin, a displaced Tulane medical student, is coordinating the efforts of medical students nationwide from her new room in my apartment.

The offers of help have been huge—not only in material, but for morale.
We haven’t been forgotten.


Things Have Changed

But a million things have changed—some of which I notice, some of which I have chosen not to think about. There is no part of my life this storm hasn’t touched. In Baton Rouge groceries and gas are in short supply, as is space on the streets and in our homes. There’s no place to park, no point in trying to drive. Starting this weekend, my apartment, luxurious for one, will have five people in it—including my three-month-old niece. We don’t know when they will go home—or where that home will be. Materials I wanted for school are at my parents’ house. These are little things, of course. We’re lucky.

My sister’s firm is looking for office space. It might be in Baton Rouge. Or it might just continue with its Lafayette office. Or maybe Houston. My brother-in-law is looking for a teaching job. They don’t know if there is anything for them to return to in New Orleans—whether their new house of six months survived the storm. My father wants to get back to work—and presumably to his partners.
I am back in class, studying literary theory. I have never been so convinced of the inadequacy of language. As a favor for a professor unable to return to Baton Rouge yet, I have agreed to lead his graduate seminar: “New Orleans and the Arts.” We’re beginning with Walker Percy’s “Lancelot”, a work suffused in tragedy and loss, in which some horrible things happen during a hurricane. I honestly don’t know how to begin.

Next is a book by Percy’s Uncle Will—the classic “Lanterns on the Levee”. Then John Kennedy Toole’s “Confederacy of Dunces”.
I have forsaken television news. I turned on the TV when power returned, only to find people bickering over politics while my neighbors drowned, starved, dehydrated, preyed on each other, rotted in the flooded streets an hour away from me. I nearly vomited.

Assigning Blame
If they like, I can assign blame for them; it’s the blame that lies at the heart of all such disasters: some combination of man’s breathtaking folly and nature’s rage. Nature, as Edward Abbey said, always bats last.
I hate everything about this disaster. I hate the glimpse of humanity it has given me—how quickly people can become beasts. But as New Orleans Mayor Ray Nagin said a few days ago: there’s a ray of light. The Quarter survived, as it always does, along with parts of Uptown. The rest is draining slowly. There are stories of great bravery, tenderness, selflessness, to counter the nightmarish brutality we’ve witnessed in the storm’s wake. Signs that civilization may hold.
And there are signs that the city’s peculiar magic realist grace will persist. There is the woman we treated, who broke into the boxing gym across from her submerged house and floated to safety with her infant son on a boxing ring. There is the man I saw who swears he was led by a flight of butterflies to the empty skiff that saved his family.

The nation will pay late and large for what it should have paid for early. One day, there will be someplace to live in the crescent of the river south of Lake Pontchartrain. Someplace, we hope, that’s worth salvaging. But I wonder whether the New Orleans flair, its Creole, Mediterranean comfort and glee in the face of death, will ever return.

I loved that city. I wonder if I’ll feel the same about the place that will bear its name.

To donate, go here: The Louisiana State Bar

At the Vioxx Trial: ONE Day's Use of Vioxx Can Cause A Heart Attack

This is from several sources, including legal professionals who attended the Humeston trial in person:

At the Humeston trial, more powerful testimony that can't bode well for Merck: A day's use of the painkiller could be enough to cause a heart attack, Dr. Luchessi testified Monday.

Vioxx breaks takes nearly four days (he said on the stand 85 hours) to leave the blood system, according to Dr. Lucchesi. He also said that based on the information at the time of its release, there was reason to believe that a single dose OR multiple doses , could lead to an adverse event such as an MI or stroke.