Vioxx MDL Hearing Report - May 2005

I attended the Vioxx MDL hearing in New Orleans, LA. Here is a recap of the proceedings before Judge Fallon:

Judge Fallon expressed his desire that the Vioxx litigation not spread 'across all fifty states,' meaning obviously that you can expect him to issue rulings that streamline the litigation issues. What may happen? If he is anywhere close to the activist on the bench that Judge Bartle is as to the Fen Phen litigation, he will use a big stick - forcing bifurcation, issuing evidentiary rulings, etc. This Judge also stated that he wanted to complete the litigation within four to five years.

To everyone's surprise, Judge Fallon informed that the pending Rogers litigation had been continued. I'm hearing that it was continued for at least six months. People were literally turning their heads in surprise.

Issues addressed by Liasion Counsel included the preparation of Master Complaints, Discovery to Merck, and Fact Sheets. My office currently has more than a dozen cases pending in the State Court in New Jersey, and the Fact Sheet used there exceeds thirty pages.

It looks like Judge Fallon is setting a tone early. When informed that the FDA had been dragging its feet on FOIA requests, the Judge said that he would Order and FDA attorney to appear next month to answer for the delay. It will be interesting to hear the FDA attorney's excuse as to why a FOIA request is now seven months old.

Currently there are 477 cases that have been transferred to the MDL, and another 382 are on their way (As of 4/21/05).

It is expected that a Case Management Order will be issued in two months.

http://vioxx.laed.uscourts.gov for more information.

Alabama Vioxx Case: PAC donated to Judge's campaign

From various sources including MSN, al.com, AP:

The judge handling the first trial over the pain reliever Vioxx received $60,000 in campaign contributions last year from political action committees funded by the law firm that filed the lawsuit.

According to the Associated Press' review of campaign finance reports, it found six PACs funded entirely by the Beasley Allen law firm contributed $35,000 directly to Circuit Judge John Rochester's unsuccessful campaign for the Alabama Supreme Court in 2004. In addition, five more PACs funded entirely by the Beasley gave $25,000 to Rochester's campaign, routing it through another PAC.

The Beasley Allen firm represents Cheryl Rogers, whose husband it is alleged died as a result of taking Vioxx.

Judge Rochester plans to hold a hearing the week of April 25, 2005 on Merck's Motion for Summary Judgment.

Rochester, in an interview Friday with the AP, said state judicial rules prohibit him from talking about a pending case, but donations from any source do not influence him. Merck lawyers have not filed any objection with Rochester about the donations.

Bextra's withdrawal: the FDA's reasoning is a MUST READ

Why did the FDA do it? A nineteen page memo gives answers. You can find it here.

The document was written by John Jenkins, the director of the Office of New Drugs, and Paul Seligman the director of the office that handles statistical science and epidemiology. It states the reasons for the Bextra recall. The memo states that Vioxx, Bextra and Celebrex all appear to be linked to an increased risk of heart attack and stroke.

Our office is investigating these claims. If your office is also doing so, it's worth the time to read this important analysis.

Bextra in the E.U.: No re-introduction

From various sources including the Nasdaq.com website, Google, and AP:

The European Medicines Agency said this week that pending the conclusion of its review of Cox-2 inhibitors, expected in June 2005, Bextra should not be reintroduced in the European Union market.

Hearings are to be held with the companies at the next CHMP meeting May 23-26.

Since the April 7 withdrawal in the U.S., Bextra sales have also been suspended in the European Union, Canada, Hong Kong, Singapore, Malaysia, South Africa, the Philippines and Mexico.

The review of Cox-2 inhibitors by EMEA began in October 2004 at the request of the European Commission.

A War Story that educates, Trial in Georgia

Many thanks to Matt Flournoy, an excellent trial attorney with morals, ethics, and an undying belief in the cause of injured people who seek justice. Here are excerpts from his explanation of a recent trial success:

Matt was the Plaintiff's lawyer in Milo v Murphy who crossed examined the Defendant on his Answer.

This jury trial was tried in Cobb State Court before Judge Prodgers. The Judge was great. State Farm insured the Defendant Murphy.

In the Defendant's Answer to our Complaint he denied responsibility. Lawyers at Sharon Ware and Associates, in house State Farm Lawyers, drafted the Answer for him.

At the first day of the jury trial the Defendant accepted responsibility. The insurance defense lawyer from Downey Cleveland mentioned it in his opening statement.

The insurance defense lawyer wanted the jury to believe that the Defendant had accepted responsibility from day one.

It was important to our case to show the jury that the Defendant had not accepted responsibility from day one.

Melissa Milo suffered a broken ankle that required surgery. She was in her mid thirties at the time of trial . She walked with a limp and her ankle still swelled when she stood for a long time.

That is not good for a waitress who has to stand on her feet for a long time. We did not asked for any medical expenses (they were around $30,000).

We called no medical doctors as witnesses. We used no medical narratives. We introduced no medical records. We did not need the orthopedic surgeon to testify to what a great job he had done in repairing Melissa's ankle.

We did not want the verdict to be a simple multiple of her past medical expenses. i.e. 3 times $30,000 equals $90,000.

We called only three witnesses to the stand: the police officer, the Defendant, and Melissa Milo, the Plaintiff.

We wanted to keep it simple. The jury appreciated that.

We did not ask for any lost wages ( about one year's worth ).

Melissa was a waitress at Shoney's at the time. It would have been difficult to prove her lost wages based on tips. We had no supporting evidence and We did not want to over reach.

A Cobb County Jury of 12 returned a verdict for $536,000 that was for Melissa Milo's pain and suffering damages only."

Vioxx News: Plaintiff's a liar?

From AP, Newsday, and other sources:

Accusing the plaintiff in the case of lying, drug company Merck & Co. asked a judge to dismiss the first scheduled trial over Vioxx.

In a court filing Merck said Cheryl Rogers, an Alabama woman who filed a wrongful death lawsuit on behalf of her husband, lied in her deposition because the Vioxx pills she claims her husband took didn't leave the company until six months after he died. The trial is slated to begin on May 23.

The court should dismiss plaintiff's complaint with prejudice because plaintiff has perpetrated a fraud on both Merck and the court Merck set forth in its Motion.

4/11: Vioxx MDL Plaintiffs' Steering Committee Selected

<>My office is investigating Vioxx claims. I have attended the initial hearings on Vioxx in New Orleans, LA. The next hearing is April 28, 2005. Of the attorneys named to the PSC, I have had the chance to work with a number of them, including Tom Kline.:

The United States District Court, Eastern District of Louisiana - Judge Fallons - announced the Plaintiffs' Steering Committe as to Vioxx litigation. They are:

Co-lead counsels Andy D. Birchfield Jr. of Montgomery, Ala., and Chris Seeger of New York City. They join Russ Herman of New Orleans, who is the liaison counsel to the judge in making up the steering committees' Executive Committee.

The other lawyers are: Richard J. Arsenault of Alexandria, La.; Elizabeth Cabraser of San Francisco: Thomas R. Kline of Philadelphia; Arnold Levin of Philadelphia; Carlene Rhodes Lewis of Houston; Gerald E. Meunier of New Orleans; Troy A. Rafferty of Pensacola, Fla.; Drew Ranier of Lake Charles, La.; Mark P. Robinson Jr. of Newport Beach, Calif., and Christopher V. Tisi of Washington, D.C..

Motion in Limine Part II

Changed my mind, going to put the rest here, as opposed to in three parts. A few other items when it comes to Motions in Limine:

I always dictate a MIL as to any deposition as soon as I get the transcript. It beats a load of Motions to dictate as you get closer to trial, and by working on them when the deposition is fresh, can address a bit more. Same goes for evidentiary issues that arise in documents.

Well, here goes and let me know if these help:

11.

FINANCIAL CONSEQUENCES OF JUDGMENT AGAINST DEFENDANT. Any reference or suggestion that Defendant is uninsured as to Plaintiff's claims, including, but not limited to, any reference as to Defendant as a little person, or small or struggling, or any other such reference which would tend to convey to the jury the impression that Defendant is a party of modest means who cannot afford to pay a substantial judgment. See O.C.G.A. §24-2-1; Adams v. Camp Harmony Association, 190 Ga. App. 506, 508, (1989); Denton v. Conway Express, Inc., 261 Ga. 41 (1991); Georgia Power Company v. Flagan, 261 Ga. 41 (1991); Northwestern University v. Crisp, 211 Ga. 636, 641 (1955); Brunswick & Western Railroad Co. v. Wiggins, 113 Ga. 842, 850 (1901); Higgins v. The Cherokee Railroad, 73 Ga., 149 (3) (1984); Bennett v. Haley, 132 Ga. App. 512, 525 (1974); See also Georgia State Bar Rules, DR 7-102(A)(3), (4) and (5); DR 7-106(C) (1); Rule 4-102(d) Standard 45 and O.C.G.A. § 9-10-185.

12.

PAYMENT OF JUDGMENT. Any indication of any kind that Defendant driver personally will have to pay any judgment that may be entered in this case, especially since Defendant is insured against liability. See O.C.G.A. §24-2-1; Adams v. Camp Harmony Association, 190 Ga. App. 506, 508 (1989); Denton v. Conway Express, Inc., 261 Ga. 41 (1991); Northwestern University v. Crisp, 211 Ga. 636, 641 (1955); Brunswick & Western Railroad Co. v. Wiggins, 113 Ga. 149 (3) (1884); Bennett v. Haley, 132 Ga. App. 512, 525 (1974). See also Georgia State Bar Rules, DR 7-102(A)(3), (4) and (5); DR 7-106(C) (1); Rule 4-102(d) Standard 45 and O.C.G.A. §9-10-185.

13.

PLAINTIFF'S USE OF AWARD. Any reference or suggestion as to what Plaintiff will or might do with any award of damages Plaintiff might receive. See O.C.G.A. §24-2-1 and §24-2-2; Gusky v. Candler General Hospital, 192 Ga. App. 521 (3) (1989). See also Hall v. Chicago & Northwestern Railway Co., 125 N.E.2d 77, 86 (Ill.1955); and Law note at 28 ATLA Law Reporter 101 (April 1985).

14.

MONEY WILL NOT UNDO DAMAGE. Any reference or suggestion to the effect that "money won't undo the injury and damage the plaintiff may have sustained", because such a suggestion is an improper appeal for jury sympathy toward Defendant. and invites the jury to disregard it's duty to apply the legal measure of damages which the evidence shows have been caused by Defendant's misconduct and instead to base a verdict on improper considerations. See O.C.G.A. §24-2-1; Gielow v. Strickland, 185 Ga. App. 85, 86 (1987) (jury cannot be urged to use some other measure of damages than that prescribed by law); Central of Georgia Railway v. Swindle, 260 Ga. 685, 687 (1990) (trial should not be invaded by improper considerations); Adams v. Camp Harmony Association, 190 Ga. App. 506, 508 (1989) (effect of verdict an improper consideration).

15.

DEFENDANT IS “SORRY” OR “APOLOGIZES.” Any reference or suggestion that Defendant is sorry or regrets the occurrence in question, because such a suggestion is an improper appeal for jury sympathy toward Defendant, and invites the jury to disregard it's duty to apply the legal measure of damages by awarding such damages as the evidence shows have been caused by such defendant's misconduct and base a verdict on improper considerations. O.C.G.A. §24-2-1; Adams v. Camp Harmony Association, 190 Ga. App. 506, 508 (1989); Gielow v. Strickland, 185 Ga. App. 85, 86 (1987) (jury cannot be urged to use some other measure of damages than that prescribed by law); Central of Georgia Railway v. Swindle, 260 Ga. 685, 687 (1990) (trial should not be invaded by improper considerations).

16.

TAXATION OF RECOVERY. Any reference or suggestion that any recovery by Plaintiff either would or would not be subject to federal or state income tax or any other form of taxation. See O.C.G.A. §24-2-1. Also, that any recovery by Plaintiff would not be subject to federal income taxation or any other form of taxation. Atlantic Coast Line R. Co. v. Brown, 93 GA. App. 805, 807 (1956).

17.

EMPLOYMENT OF COUNSEL/FEES. Any reference or suggestion regarding the time or circumstances under which Plaintiff employed any of her attorneys. O.C.G.A. §24-9-21(2). Any reference or suggestion regarding the existence of a contingent fee arrangement between Plaintiff and her counsel. See O.C.G.A. §24-2-1; Stoner v. Eden, 199 Ga. App. 135 (1991).

18.

FAILURE TO CALL EQUALLY AVAILABLE WITNESSES. Any reference or suggestion that Plaintiff has not called to testify any witness equally available to both parties in this case. See O.C.G.A. § 24-4-22; Bank of Emmanuel v. Smith, 32 Ga. App. 606 (1924); Bradford v. Parrish, 111 Ga. App. 167 (1965).

19.

VOUCHING FOR DEFENSE WITNESSES. Any reference or suggestion as to whether or not Plaintiff or any of Plaintiff's witnesses believe that any of the defense witnesses are honorable or otherwise worthy of belief. O.C.G.A. §24-2-1.

20.

PERSONAL BELIEF OF COUNSEL. Any reference or suggestion by defense counsel as to his or her personal belief concerning the credibility of any witnesses, or as to the merits of Plaintiff's claims, injuries, or damages. Manning v. State, 123 Ga. App. 844, 845-6 (6) (1971); Georgia State Bar Rules, DR 7-106 (C) (4); EC 7-24.

21.

FUTURE INCOME, ETC. OF PLAINTIFF. Any reference or suggestion as to the future income or employment benefits of Plaintiff.

22.

UNDISCLOSED PHOTOGRAPHS. Any reference or suggestion as to the existence or contents of any document, photograph, motion picture film or videotape which has not previously been disclosed in the pretrial order until the same has been tendered to the Court and Plaintiff's counsel, outside the presence of the jury, and shown or exhibited to determine its relevance and suitability for introduction into evidence. See O.C.G.A. §24-2-

23.

EFFECT OF CLAIMS ON INSURANCE RATES. Any reference or suggestion regarding the effect or results of a claim, suit of judgment upon insurance rates, premiums, or charges, either generally or as particularly applied to Defendant in this case as a result of this or any other lawsuit or claim. See O.C.G.A. §24-2-1 and §24-2-2.

24.

EFFECT OF CLAIMS ON INDUSTRY. Any reference or suggestion that damage awards may drive up the price of products, put manufacturers out of business, or cause jobs to be lost. See O.C.G.A. §24-2-1 and 24-2-2.

25.

REQUESTS FOR PLAINTIFF'S FILE MATERIALS. Any demands or requests by defense counsel before the jury for matters found or contained in Plaintiff's or her counsel's files, which would include statements, pleadings, photographs, and other documents directed to the Plaintiff or Plaintiff's counsel during the course of the trial and in the presence of the jury.

26.

REQUEST FOR INDEPENDENT OR COMPULSORY MEDICAL EXAMINATION DURING THE COURSE OF TRIAL. During the course of the trial, any demands or requests by Defendant or defense counsel for additional medical examination, physical demonstrations, or other similar requests directed to the Plaintiff or Plaintiff's counsel and in the presence of the jury. See O.C.G.A. § 24-2-1.

27.

REQUESTS FOR PHYSICAL DEMONSTRATIONS. Any requests for Plaintiff or any of Plaintiff's witnesses to participate in or assist defense counsel with any physical or other demonstration. See O.C.G.A. §24-2-1.

28.

SUPERSEDED PLEADINGS. Any reference or suggestion as to the contents of any pleadings which have been superseded by the current pleadings or the pretrial order on file in this case.

29.

EX PARTE STATEMENTS. Any reference or suggestion as to the contents of, or tender of any ex parte statement or report of any person not then and there present in the Court to testify and to be cross-examined by counsel for Plaintiff.

30.

TESTIMONY OF UNAVAILABLE WITNESS. Any reference or suggestion as to the probable testimony of a witness available to Defendant who is not called to testify in this case.

31.

NOTICE TO DEFENDANT OF SUIT. Any reference or suggestion that no notice of the claim was given to Defendant(s) until the suit was filed in this case, since none is required to be given.

32.

SPECIAL EFFORTS REQUIRED BY JURY. Any reference or suggestion that the jury must extend special efforts to be fair and impartial to the defendant.

33.

SEAT BELTS. Any reference or suggestion that Plaintiff may not have been wearing a seat belt at the time of the collision made the basis of this suit. O.C.G.A. §40-8-76.2.

34.

PRIOR TRAFFIC RECORD. Any reference or suggestion as to any prior moving traffic violations or any prior automobile collisions that Plaintiff may have had in the past. See O.C.G.A. §24-2-1 and 24-2-2; Myers v. Barnard, 180 Ga. App. 192 (1986); Underwood v. Butler, 166 Ga. App 527, 529 (1983). See also Green, Georgia Law of Evidence, 3rd Ed., §§68, 70 and 71 (Harrison Co., 1991 Supp.).

35.

CRIMES INVOLVING FIRST OFFENDER STATUS. Any reference or suggestion as to any crimes involving first offender status. O.C.G.A. § 42-8-65(a) obligates the clerk to ensure that such information is disclosed only to those persons authorized to receive it. Witcher v. Pender, 260 Ga. 248 June 8, 1990, held that the first offender record of an adverse witness in a civil case is not admissible for the purpose of impeaching the witness for a crime of moral turpitude. In Georgia, the rule is that a witness may be impeached by proof of a conviction of a crime involving moral turpitude. Hall v. Hall, 261 Ga. 181 (402 S.E. 2d 726)(1991).
The use of the term moral turpitude has been "restricted to the gravest offenses consisting of felonies, infamous crimes and those that are malum in se and disclose a depraved mind", Lewis v. State, 243 Ga. 443, 444 (254 S.E. 2d 830)(1979). Under that definition it is apparent that a misdemeanor conviction for possession of less than an ounce of marijuana, a conviction equivalent to a misdemeanor conviction for DUI. See Hall v. Hall supra, it is not a crime of moral turpitude. It does not suggest an "insensibility to the obligation of an oath". Lewis supra, at 446.

36.

CRIMES NOT INVOLVING MORAL TURPITUDE. Any reference or suggestion as to any crime by the plaintiff that does not involve moral turpitude. "In Georgia, the rule is that a witness may be impeached by proof of a conviction of any crime involving moral turpitude. Said to be restricted to the gravest offenses, consisting of felonies, infamous crimes, and those that are malum in se and disclose a depraved mind Lewis v. State, 243 Ga. 443, 444 (1979).

37.

MUST HAVE CERTIFIED RECORDS OF PRIOR CONVICTION, IF ANY Any reference or suggestion as to any crime by the plaintiff that defense does not have certified copies of the convictions. A witness may be impeached by the “properly authenticated copy of his conviction”, not by his own admission in a deposition or testimony that he entered a pleas of guilty. Business Resources, Inc. v. General Amusements, Inc., 186 Ga. App. 185 (1988).

38.

DUI. Any reference or suggestion as to any crime of DUI by the plaintiff. A misdemeanor conviction for DUI is not a crime of moral turpitude and therefore cannot be used for impeachment. Hall v. Hall, 261 Ga. 188 (April 11, 1991). See Agnor's Georgia Evidence (2nd Edition) Section 5-8 (1986).

39.

LIVING TOGETHER OUT OF WEDLOCK. Any reference or suggestion that the plaintiff is or has ever lived with someone out of wedlock.

40.

MED-PAY OFFSET FROM VERDICT. Any reference or suggestion that the collateral sources which plaintiff has received including med-pay benefits should be offset from the jury's verdict. Plaintiff intends to offer paid medical bills for the limited purpose of showing the extent of the injuries. There may exist a right of reimbursement or subrogation for any paid bills. The law is clear in that the Plaintiff is not entitled to a double recovery.
The approved way to prevent such double payment is by consent at pretrial, or in the event of contest, by presenting the facts showing such coverage and payment to the Court outside the presence of the jury. Powell v. Manning, 242 Ga. 778, 780 (251 SE2d 522) (1979). If evidence of such damages is introduced for the purpose of proving the extent of injuries, the Court should then charge the jury to exclude consideration of such evidence on the issue of damages. Walls v. Parker, 146 Ga. App. 882, 883 (247 SE2d 556)(1978). McDaniel v. Gysel, 155 Ga. App. 111, 112 (5) (270 SE2d 469)(1980).

41.

DISORDERLY CONDUCT. Any reference or suggestion as to any crime of disorderly conduct. Disorderly conduct is a misdemeanor and is not a crime of moral turpitude.

42.

BIRTH OF CHILDREN. Any reference or suggestion as to the birth of any of plaintiff's children out of wedlock or the fact that plaintiff's children may have different fathers.

43.

REFERRAL TO PHYSICIAN. Any reference or suggestion that plaintiff was given the name of a physician by either his prior or current attorney or that his attorney assisted in scheduling his appointment.

44.

ACCIDENT CHARGE. Any reference or suggestion by the defense on the “accident” in this case. Tolbert v. Duckworth, and Shelton v. Smith, 262 Ga. 622, (November 23, 1992) Georgia Supreme Court. The Georgia Supreme Court has eliminated the jury instruction on accident as a defense in civil cases agreeing with the jurisdictions that have repudiated the use of the accident instruction in all civil cases as unnecessary, misleading and confusing.

45.

EVIDENCE AND TESTIMONY. Any reference or suggestion to any evidence or testimony not revealed in defendants' discovery responses. Such evidence would be unfairly prejudicial to the plaintiffs' case. All such evidence should have been disclosed to the plaintiffs during discovery.

46.

OTHER INJURIES: Plaintiffs moves that the Court exclude any claim, argument or other statement that any prior or subsequent claims and injuries of Plaintiff are related to the injuries now at issue, unless such contention is first established by testimony of someone having sufficient and appropriate medical training and supported by medical records. Such argument cannot be made without first providing medical proof as to such causation. It is clear that neither a witness nor lawyer without any medical training can give such an unsupported opinion. See Eberhart v. Morris Brown College, 181 Ga. App. 516, at 518 & 519 (1987); Thomason v. Willingham, 118 Ga. App. 821, 165 S.E. 2d 865 (1968).
Plaintiff moves that any such argument or statement of counsel be excluded unless and until such causation is established at trial through testimony of a qualified medical expert. This motion by plaintiffs prevents or precludes defense counsel from arguing that the March 1995 automobile collision caused or aggravated any of Mr. Jenkins’ injuries. Without medical support, such argument would permit defense counsel to improperly insinuate injury without testimony or other evidence.

47.

ARGUMENTS UNSUPPORTED BY MEDICAL EVIDENCE: Plaintiffs move that the Court exclude any claim, argument, or other statement that any prior or subsequent injuries, problems or conditions associated with plaintiff's back, jaw, shoulder, or any problems related to psychological stress the plaintiff may have suffered in the past are in any way related to his present injuries, unless such statement is first established by testimony of someone having sufficient and appropriate medical training and such statements are supported by medical records. Once again, such an unsupported statement cannot be made without sufficient proof. See Eberhart v. Morris Brown College, 181 Ga. App. 516, at 518 & 519 (1987); Thomason v. Willingham, 118 Ga. App. 821, 165 S.E. 2d 865 (1968). Any testimony, argument or questioning as to these matters should also be barred unless and until medical proof is first presented.

48.

FILING THIS MOTION. Any reference or suggestion that this Motion has been presented to or ruled upon by the Court. Plaintiff moves that Defendant's counsel is instructed not to suggest to the jury, directly or indirectly, that Plaintiff has sought to exclude any matters to this suit.

49.

JURY. That the members of the jury should not place themselves in the place, or shoes, or stead of the Defendants. Doe v. Moss, 120 Ga. App. 762, Headnotes 7 & 8, (1969).

50.

DOCUMENTS NOT PREVIOUSLY ADDRESSED IN PRE-TRIAL ORDER. That should the Defendants wish to introduce any document, writing, photograph or motion picture or video tape or the like, not previously addressed by the pre-trial order, into evidence, that the same be tendered to the Court and opposing counsel, outside the presence of the jury, and shown or exhibited to determine its relevance and suitability for introduction into evidence prior to and before informing the jury as to its existence or its tender into evidence by the defendants.

Bextra withdrawn - the FDA's Elephants in the Room

Bextra was withdrawn at the request of the FDA. News can be found everywhere.

FDA Advisory Panels: Elephants in the Room is the title of a well written article by John Mack. His complete article can be found here. Here is an excerpt:

The New York Times recently reported that "Ten of the 32 government drug advisers who last week endorsed continued marketing of the huge-selling pain pills Celebrex, Bextra and Vioxx have consulted in recent years for the drugs' makers..." (10 Voters on Panel Backing Pain Pills Had Industry Ties, NYT, 2/25/2005).

If these 10 panelists were taken out of the voting, which would be expected if FDA policies on conflict of interest were adhered to (they weren't -- more on that below), then the committee would have voted to take both Bextra and Vioxx off the market (12 to 8 against Bextra and 14 to 8 against Vioxx).

Worth a read.

Motion in Limine: Part 1 of 3 parts

My firm's practice emphasis is Personal Injury. Nothing else - not wills, divorces. I usually file a Motion in Limine on general issues early so that I can set the tone for depositions and other discovery issues that crop up during a case. Almost always, I file an extensive MIL within sixty days of service of an Answer. The MIL is lengthy, but I have won every single point, or had defense counsel agree to them in advance.

Here's Part 1:

FIRST MOTION IN LIMINE

Plaintiff files this Motion in Limine and moves this Court for an Order prohibiting counsel for the Defense from making any comment, directly or indirectly, in any manner whatsoever, concerning any of the matters set forth:

1.

APPROACH THE BENCH: Plaintiff requests that Defense counsel first approach the Bench and obtain a ruling of the Court outside the presence and hearing of all prospective jurors, or jurors ultimately selected in this case, in regard to any alleged theory of such matters contained herein, at trial and mentioned to jury at Voir Dire.

2.

INFORM WITNESSES: Plaintiff moves the Court for an Order directing counsel to inform any and all defense witnesses of the Court order regarding these matters, and to instruct any and all such witnesses to refrain from mentioning any such matters in the presence and hearing of all prospective jurors or jurors ultimately selected in this case until defense counsel has obtained a ruling in compliance with this order that such matters would be admissible as evidence in this case.

3.

COLLATERAL SOURCE PAYMENTS/BENEFITS: Any reference or suggestion that Plaintiff has received, has been entitled to receive, will receive, or will become entitled to receive, benefits of any kind or character from a collateral source, including, but not limited to, the following: (A) Benefits from collateral insurance coverage; (B) Services furnished without charge; (C) Compensation for time not actually worked; (D) Social Security or pensions; (E) Workers' compensation benefits; (F) Medicaid or Medicare. See Denton v. Conway Express, Inc., 261 Ga. 41 (1991); Georgia Power Co. v. Flagan, 261 Ga. 41 (1991); Bennett v. Haley, 132 Ga. App. 512, 525 (1974). See also Warren v. Ballard, 266 Ga. 408 (2), 467 S.E.2d 891 (1996); Worthy v. Kendall, 222 Ga. App. 324, 474 S.E.2d 627 (1996).

4.

OTHER COMPENSATION. That the plaintiff, by reason of age, infirmity, or otherwise, is now or may be entitled in the future to receive any compensation or benefits by reason of the Social Security Law of the United States or from any governmental agency such as the veterans' Administration, Medicare, or sources of this nature.

5.

ATTACKS ON PLAINTIFF'S TRIAL COUNSEL BY DEFENSE ATTORNEYS. Any reference or suggestion as a personal attack and uncivil comments about plaintiff's trial counsel by the defendant or their attorneys. Personal attacks on adversarial counsel has no place with the truth-seeking context of litigation.

6.

ADVERTISEMENT BY PLAINTIFF'S ATTORNEY. Any reference or suggestion to the advertisement or the fact that plaintiff's attorney advertises. This includes slogans, jingles, or reference to the yellow pages, television or any media. The issue of how attorneys obtain business should not become an issue in the case. The fact that plaintiff's counsel advertises to obtain clients is no more relevant that the practice by defense attorneys to join exclusive organizations in which to wine and dine insurance adjusters and corporate clients for business, in order to obtain business.

7.

FINANCIAL STATUS OF ATTORNEY OR MEDICAL PROVIDER. Any reference or suggestion to the income or financial status of the plaintiff’s attorney or the treating physicians. The issue of the wealth or income of the attorneys or treating physicians should not become an issue in the case. On at least one occasion, defense counsel has argued in other cases that plaintiff's attorneys advertised and stated to jury "how do you think these attorneys and these doctors can afford such expensive advertisement and have nice offices".

8.

AMERICAN TORT SYSTEM OR PLAINTIFF'S LAWYERS IN GENERAL. Any reference or suggestion or the introduction of any evidence by the defense counsel directly or indirectly attacking the American Court System or plaintiffs attorneys or recent tort reform campaigns.
Neither the American tort system or plaintiffs attorneys in general are on trial in this case. The trial of this case should not be an opportunity for defense counsel to voice opinion regarding tort reform. The injuries sustained by the plaintiff are a result of the defendant’s negligence and the defense should not be permitted to ignore the issues in this case and attack the tort system in general.

The debate surrounding tort reform is irrelevant to this case and would serve only to inflame and prejudice the jury. These references would poison this case with anti-lawsuit and anti-lawyer bias, which has been highlighted in recent corporate, media campaign and emotional propaganda. The only thing to be gained in allowing defense counsel to discuss these issues would be a concealment of the truth. This subject applies to Trial only and not Voir Dire.

9.

UNRELATED CLAIMS. Any reference or suggestion that Plaintiff has had unrelated, prior or subsequent claims, suits or settlements or the amounts thereof. See O.C.G.A. §24-2-1 and §24-2-2; Goforth v. Wigley, 178 Ga. App. 558, 559-60 (1986). Further, no mention should be made concerning any injuries to the defendant(s), that they did not bring a claim or suit for.

10.

UNRELATED ACCIDENTS AND INJURIES. Any reference or suggestion that Plaintiff has any other unrelated injuries, diseases, conditions, or illness, or the effects thereof, which are wholly disassociated from and do not relate to or serve as a "sole cause" defense to his/her present claims, and which Defendant cannot medically associate and relate to plaintiff's injuries for which compensatory damages are claimed in this case. See O.C.G.A. §24-2-1 and §24-2-2; Goforth v. Wigley, 1788 Ga. App. 558, 559-60 (1986); United Motor Freight Terminal Company Inc. v. Hixon, 76 Ga. App. 653, 655 (1948); Barnes v. Cornett, 134 Ga. App. 120, 122 (1975). Further, No mention should be made about the plaintiffs having previously filed claims or lawsuits.


Hope these help, more on the way shortly.

April's Random Notes - email and medicine

New for this month: On the listserve for Georgia Trial Lawyers there is a discussion as to whether or not an attorney should have an email address on a business card. Yes, that is a no brainer you are saying. The writer worries about abusive emails and many of them. To me, listing an email address is as basic as having a street address. Am I missing something?

A website with nifty medical information is emedicine. Descriptions of injuries, illustrations, X ray reproductions and more. It's free, mostly.

Also worth a test run is readnotify.com. It's a certified mail system for email. If you use web based email it may help you. I've had many a lawyer actually lie to me (imagine that) when I send an email; he says "never got the email." With this product, not anymore. I sent the attorney who claimed no receipt a copy of the time he opened the email (five minutes after I sent it). It's worth the free test at the very least. Not everyone needs it, I know.

I'll be posting my Motion in Limine in three parts soon, based on calls for it. I'd be interested in hearing from others on what they add to theirs.

Reminyl Warning Reported 4/05

From various wire sources, including Reuters:

Johnson & Johnson added a new warning to the label of its Alzheimer's treatment, Reminyl. REcently two studies reported deaths of 13 patients who took the drug and one who took a placebo.


According to the company, the deaths "were due to various causes that could be expected in the elderly population" such as heart attacks and strokes, and the findings were "highly discrepant" with other studies of Reminyl, the company said in a letter to physicians.

The two studies involving more than 2,000 patients were testing Reminyl as a treatment for mild cognitive impairment, a less severe condition than Alzheimer's disease. The rate of deaths in patients who got a placebo was lower in the mild cognitive impairment trials than in trials of Alzheimer's disease patients. The information about the deaths, which the company disclosed in January, was added to the "precautions" section of the Reminyl label, a less severe alert than other prescription drug warnings.

I'll have the link to the study once it's out on the web.

Letter to H.I. seeking subro., in a 3rd Party PI

Here are the "guts" of the letter that I typically use when a HI collection agency jumps into a claim:


This acknowledges receipt of your letter informing of a potential subrogation 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 summary plan 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 assent subrogation or a right of reimbursement.

At this time, we acknowledge your correspondence and potential claim. 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.

First: I ask for written documentation from the Health Plan that confirms your company’s right to make a claim on behalf of the plan.

Second: 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.

Third: I consider your company a fiduciary of the plan. If you disagree, please let me
know why, doing so in writing within ten days.

My obligation in my contract rests solely with my client, a person injured through no fault of her own. As of the date of this letter, there is no recovery of any nature. When or if there is a recovery, I will consult my client. I will not provide you with updates of his treatment or his 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. 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.


It goes by certified mail. We have several cases pending where the 30 day rule has not been met. At least once we have sued and won on the issue of the common fund doctrine in Georgia.

Governor Bush and Pres. Bush: Time to speak about the Judiciary and Schiavo

The fever pitch debate of the Terri Shiavo matter continues, even after her death. I am not writing to say whose opinion has value; instead I write to chastise the Bush brothers. In both the mainstream media, radio, and the Internet the discourse relating to the Judges, Justices and Courts that rendered decisions regarding Mrs. Schiavo, the level of name calling has reach a new low – if that is possible – regarding the judges and justices involved. Here are a few quotes from various sites:

Judge Greer … is obviously uninformed about biology, since he cannot recognize a living human being when he sees one. … Who's next - Alzheimer's patients, the mentally deficient, the politically unacceptable? Welcome to Nazi Germany!

Judge Greer is the judge determined to provide judicial approval for Michael Schiavo's mind-boggling plan to withhold food and water from Terri until she dies a horrible death. Adolf Hitler was the kind of man who would have approved.

Others on the air have referred to Judges as Nazi’s, murderers, corrupt judicial tyrants, and worse.

Governor Bush should publicly condemn those who seek to portray Judges as anything akin to Nazi’s or murderers. President Bush should do likewise. Attorneys know - but lay people do not – that these sitting judicial officers cannot comment or defend themselves based upon their respective judicial canon of ethics. Remaining silent on the issue gives the impression that each Executive Officer tacitly approves of such heinous