Tuesday, August 30, 2005
It's my favorite city in the U.S. I have friends there and from there, I have had business clients from there, and travel there on a regular basis. Most were certain that NOLA would take a direct hit and be wiped out.
I don't agree with folks who said, thank goodness it turned to the east, as the misery for MS and AL residents is bad as well. My friend in Mobile reported that it's pretty bad there.
At times like these the things we do take a back seat a little bit as you watch and wait. Once things settle down and the weather clears people will be able to try to clean up. In my practice we talked about matters that we had taken for granted, such as: Are the USDCT employees in safe places? Will they be able to get back to work?
My thoughts and prayers are with those now. Hopefully yours are as well.
Thursday, August 25, 2005
There currently are pendig 1811 cases in the MDL, with another 290 in the process of being trasferred to Judge Fallon's Cort.
There are 200 cases pending in state courts other than New Jersey and California. In New Jersey, the docket dwarfs any other, with more than 2400 cases pending there. There are 250 cases in California Corts. There are pending 148 class actions.
Judge Fallon noted that the caseload in the MDL would double within the next six months.
There are currently pending more than 380 cases where a Motion for Remand has been filed.
Currently the trial docket shapes up this way: Trial number 2 is set for 9/1205 in NJ State Court. The next trial after that is October 24, 2005. The first MDL trial is 11/28, and trial #4 is in a Texas state Court begining in March of 2006.
The Judge informed counsel that he wants to set cases for trial in February, March, and April of 2006. He envisions a trial on different injuries - MI, Stroke, etc.
The paper production is huge. Currently there have been one million pages produced, with another nine million pages set to be produced within the next month. The FDA informs that it will be producing nearly 100,000 pages soon.
An interesting discussion regarding tolling agreement-filed cases: Merck's attorney indicated that a number of cases seeking protection under the T.A. were "sloppily filed." (His words in open court). My question is this: With the stakes so high, who would do this? Does the counsel who takes a shortcut think Merck and its counsel would not see the shoddy work early on? Does this counsel think he or she has an easy road now?
Wednesday, August 24, 2005
You can go here to read more. One timely comment that no one (no one at Fox News, or CNN, or MSNBC has bothered to air) is this:
"Brazoria County is still generally regarded as one of the more pro-personal injury plaintiff venues in Texas, but considerably less so now than it was, say, 20 years ago. The entire state has become less pro-plaintiff over that time period; the state-court trial judges there, like most other places in the state now, have mostly been appointed by Republican governors and/or elected as Republicans. " Thus the battle in the battle in that first Vioxx trial was largely won in the trenches - for example, when the Judge allowed the testimony of the coroner to be admitted.
Another article in the WSJ today (Section D) written by James Stewart boldly says what I suggested in my August 6th post : Merck should have settled.
More tomorrow from the MDL hearing in New Orleans.
Monday, August 22, 2005
The jurors concluded that a critical piece of evidence was a 1997 email from Dr. Alise Reicin that said in part that the possibility of increased cardiovascular events should be considered of great concern. Merck has told the FDA and the public that it did not know of the drug's CV risk until the fall of 2004.
My good friend Tom Kline was taking the deposition of Dr. Reicin on Friday when the verdict was announced. Dr. Reicin was so shaken by the news that she could not complete her deposition that day. (Mr. Kline is on the Vioxx MDL steering committee, and we are working together, investigating other potentiall unsafe drugs).
Before you reach any conclusions on the verdict, it's worth the price of the paper to see what happened in this trial.
Friday, August 19, 2005
My good friend Allie Wall from Georgia Watch issued this Release yesterday:
According to the Justice Department, the popularity of alternative dispute resolution and the “increased complexity and costs inherent in taking a case to trial” have made it harder than ever for an injured person to exercise their Constitutionally-guaranteed right to a trial by jury.
Senate Bill 3, signed into law in February by Governor Sonny Perdue, further restricts families’ ability to seek justice by drastically reducing accountability for corporations such as Georgia Pacific, and for health care providers, nursing homes and hospitals. In fact, SB 3 gives all emergency room personnel near-complete immunity, even when their negligence and mistakes clearly resulted in the injury or death of an innocent patient.
The effect of these extreme limitations on the Constitutional rights of individuals and families is already apparent. Pat Wright, a Gainesville resident and factory worker, has searched over six months for legal representation after discovering metal sutures that were left in her left arm and shoulder following a 2003 surgery. As a result, Wright believes, she has suffered severe, constant pain for over two years and has permanent nerve damage.<>
“It's devastating for me and my family, and there are so many more like me who just want their day in court, to hold the person who hurt us accountable," said Wright. "Isn’t that one of the founding principles of our country? No one has been able to explain why victims of medical negligence don’t deserve a fair jury trial, but that's the law now here in
The report, "Federal Tort Trials and Verdicts, 2002-03" NCJ-208713 was written by BJS statistician Thomas H. Cohen and can be accessed online at http://www.ojp.usdoj.gov/bjs/abstract/fttv03.htm
Founded in 2002, Georgia Watch is a non-profit, nonpartisan 501-(c)(3) watchdog group focusing on consumer education and research in the areas of health care, insurance and personal finance.script>
Who can tell? What is interesting is that in the more than 700 news articles online about the trial, only one so far that I have found mentions the damages amount sought by Mr. Lanier. It's $40 million, by the way. This was found on a U.K. news site.
Next week there will be a full report from the Vioxx MDL hearing in New Orleans. Interestingly, Judge Fallon as presiding Judge over the MDL also was in the news this week, hitting Michael Jackson with a $10,000 fine for missing a hearing in his Court. You can read about the Judge here.
Thursday, August 18, 2005
A short blurb in the WSJ provides the news below. Interestingly, this isn't page one news, but Section D, page 2, lower corner of the paper.
Since the article is short, here you go (in part):
Product liability, medical malpractice, and other tort trials concluded in the U.S. federal court fell by nearly 80% from 1985 to 2003, according to a new Justice Department study. The study's jump off point can be found on the DOJ site by clicking here. In 2003 there were a total of less than 800 trials in USDCTs. That compares to 3,600 in 1985.
The report from the DOJ in PDF format can be found here. There is also a nifty excel spreadsheet that breaks down each year. It's in a zip file, self extracting.
The chart to the right is from the PDF of the materials on the DOJ web site.
The complaint alleges that Merck knew but failed to disclose that its painkiller caused a significant risk of heart attacks, strokes and other cardiovascular-related deaths. Merck's stock tumbled 26 percent after it withdrew the drug from the market in September 2004.
Thanks to Oregonlive.com
Wednesday, August 17, 2005
Anderson told the good people at CBS Market Watch said he based his conclusion on how the case would turn out on several factors.
The first factor, said Anderson, is that Texas has a reputation for being a "plaintiff-friendly state."
A second factor is a change in the coroner's testimony during the course of the case. Anderson, who is also a physician, noted that there was a "physiologic link" between arrhythmia and blood clots, which he said "is what Vioxx predisposes to."
"The more likely root cause of cardiac death in someone with underlying diffuse coronary artery disease is a thrombus [blood clot], which could have led to an arrhythmia (or not) which may have been caused by Vioxx (or not)."
He also said a general "ill will" toward the pharmaceutical industry is another factor working against Merck in the case.
My comment: I'm not buying into the first factor. I'm also not buying this genral "ill will" comment. The problem with predictions like this is that if he is correct in that Merck loses, you will probably never know all the reasons for the verdict in favor of the Plaintiff.
In my view, the key parts of the trial will be the coroner's testimony and the clinical trial director testimony.
Tuesday, August 16, 2005
Morgan Adams is the Secretary for the ATLA Republican Trial Lawyers Caucus and he prepared the following materials on why Republicans should be aginst Tort Reform. It's worth reading, as he has done a great job.
The points are:
1. It is a State's Rights issue. Some states have Caps and tort reform, some don't. If the citizens wanted tort reform they can easily pass it at the state level and we do not need the federal government involved.<>
2. The Taxpayers eventually pay the tab for the wrongdoers negligence with tort reform as proposed. Given the rates of medical inflation and the skeptical nature of juries most Pf's do not get everything they ask for the medical care of a critically injured person, much less provide for "new procedures" and drugs which have not been invented or discovered yet. If the pf runs out of money, they fall back on state and federal welfare programs and the taxpayers foot the bill.>
3. Morally, laws should be fair to all parties and not to a select privileged few. George Orwell said "all pigs are equal, some pigs are more equal than others." Do we want to create a class of more equal pigs?
4. Juries are trusted with the death penalty, but they can't be trusted with $? That dog don't hunt unless we value life less than money.
5. Caps value life. An old person in a nursing home and a fetus have no economic value. In fact it can be argued they are an expense, and cost money. It is wrong to value life in this way. Terry Shivo's life, max value $250K? I don't think there are many Republicans that would agree with that.
6. Individuals are supposed to accept responsibility for their actions. If I run a red light for the 1st time in 50K stops, and paralyze someone, wouldn't you and I be held responsible? What about a business that releases toxic waste into our water supply? Shouldn't everyone be held accountable for their own wrongdoing?
7. It attacks the whole legal system and the constitution, not just the runaway jury. Our constitution says we are entitled to a trial by jury (around here it is the Dr's insisting on the trial by jury!). Then the judge reviews. Then the court of appeals. Then the State Supreme Court. Then the US Supreme Court. You have to say the system is broke at every level, and it simply isn't.
8. It costs money to take a case to trial, and lawyers are small business men. They do not throw good money after bad.
9. There are already penalties in the system for filing frivolous cases.
10. Caps penalize the most injured and protect the biggest wrongdoers (the drunk/drugged Dr, the Dr who cuts off the wrong leg, the nurse who puts in the wrong type blood.)
11. There is nothing wrong with reform, everything can be better. Tort reform as proposed isn't reform, it is destruction. Is there a lawyer in Georgia that doesn't believe SB3 (2005 Tort Reform statutes) should be reformed in one way or another? The issue is what is a proper reform and how do we manage it to protect the rights of all American's, all citizen's, all Georgians.
Monday, August 15, 2005
From various sources, including cnn.com
The week of 9/12/05, jury selection will start in Trial #2 of the 2,200+ Vioxx lawsuits pending in the New Jersey Superior Court in Atlantic City before Judge Carol Higbee.
In the pending Texas case, Plaintiff's counsel has said the case could wrap up possibly by Wednesday.
Thursday, August 11, 2005
The site is loaded each day with tech tips, including info on a site that is in essence 411 for your cell phone, via text messaging. 4 info can be found here. I've used it this morning to find a sports score from late last night while I was in the car, to locate a coffee place near a client's office, and more. Google has it as well.
Try it. For Google, simply use this # to send a text message: 46645, then type in what you seek. For 4 info, use 44636. Both are free.
She was involved in a study that compared Vioxx to naproxen, the ingredient in Aleve, and showed higher cardiovascular incidents, including blood clots, than with naproxen, she said.
''There was a lower rate of thrombotic events with people taking naproxen than with people taking Vioxx," Reicin testified this week in the case. ''I still believe the difference was because of the heart-protectiveness" of naproxen. The FDA addressed this, and doubted its conclusion in a 2001 warning letter to Merck about its Vioxx marketing tactics.
I've read the letter. The FDA Government regulators said the argument that naproxen influenced the number of heart attack incidents was ''hypothetical" and that ''another reasonable explanation" was that the drug caused the incidents.
After analyzing the kind doctor's testimony my first thought was: Does the sun rise in the west in your world, doctor?
Wednesday, August 10, 2005
It's in the Superior Court of Jeffersom County. Robinson v. Austin Case #04CV00283
The Court finds the case of Thurman v. State Farm applies. Specifically, because Plaintiff is required to reimburse Medicaid for medical expenses, the Medicaid lien creates uninsured motorist exposure for State Farm up to the amount of the lien. The amount to be reimbursed to Medicaid constitutes a reduction of the limits of the available liability coverage.
WHEREFORE, it is hereby ORDERED that Defendant State Farm's Motion for Summary Judgment is Denied.
My comment: Great job!
My office is investigating Vioxx claims and I have been following the Texas State Court Trial being prosecuted by M. Lanier. A component of that case deals with arrythmia as a diagnosis. Thanks to OR Live, I was able to view a procedure involving this very diagnosis, by going here.
"Arrhythmias of the Heart included live broadcasts of a diagnostic study of electrical firings of the heart and an internal cardiac defibrillator (ICD) implant that shocks the heart into a normal rhythm if necessary."
You can also see doctors from St. Luke's Medical Center in Milwaukee perform a Cervical Discectomy with Fusion Anterior Approach to repair cervical discs.
Will it help your practice? I've used NLM videotapes for mediations and at trial. Could these serve as replacements?
The notification -- issued last week -- came after months of deliberation. An expert committee under the health ministry recommended in May that the arthritis pill Valdecoxib be banned in India. The ban will affect over 50 brands, which account for a sizeable chunk of the over-Rs 200 Cox-2 inhibitor market.
My comment: It looks like there may be a worldwide withdrawal of this drug. EU, USA, India. Who is left?
Tuesday, August 09, 2005
"Pennsylvania just completed the first state study of hospital-acquired infections, and found that more than 1,500 people died unnecessarily in 2004 alone." You can read more by going here.
In its quarterly filing submitted to the regulator this week, the company didn't say when the SEC made its request. Pfizer earlier received a similar request from the U.S. Justice Department.
Abbott is a Republican who is also being mentioned as a candidate for Governor in that state.
My comment: It's interesting that while the G.O.P. as a whole is nationally the party that raises large sums of money from persons that work for pharmaceutical companies, a state A.G. takes such a public stance against Merck. His outrage is consistent with his strong law and order stances in the past.
Monday, August 08, 2005
Online at the New York Times there is a well written analysis of the first trial in Texas. It's worth a read. Comments include:
<>Mr. Lanier conducted an examination of Dr. Alan S. Nies, a retired Merck scientist who led the Vioxx development program in the 1990's. Dr. Nies appeared defensive and seemed to lose his temper. There was reference to a Harvard study that would have looked at the drug's heart risks. On the stand Nies testified that the study was unethical, thus it was never conducted. Unfortunately for Merck, there was a contract that was negotiated, prepared, and executed ... by Dr. Nye.
The Times does not pull punches in its article. It stated that Lanier presented " evidence in a scattershot way ... . " before resting his case. It does note, correctly in my opinion that a key point was when Dr. Santanello (for Merck) admitted that a document overestimated the risks faced by patients taking placebos, or sugar pills, in some Merck clinical trials of Vioxx.
My comment: Perhaps I am naive, but it make sense for Merck to settle this case now, given which cases are next on the dockets throughout the USA. If not, and there is a significant verdict, you may see Mr. Lanier being associated on many more claims.
Thursday, August 04, 2005
Counsel presented the medical witnesses first in this trial, saving the Plaintiff until later. I think this was a sound strategic approach in this complicated case.
Tuesday, August 02, 2005
Monday, August 01, 2005
According to Mr. Matthews, Paul Sizemore of an Alabama law firm argued in favor of establishing an MDL as to Celebrex and Bextra (separate MDL for each). Jurisdictions suggested included New Orleans, Boston, and New York. As to New Orleans it was suggested that a judge other than Judge Fallon be named.
Attorneys for the makers of the drugs argued - obviously - against an MDL. It was argued to the Court that there were only a limited number of SJS potential claims as to Bextra. In rebuttal an informal survey showed more than fifty potential cases involving this condition. It appeared that if an MDL were to be established, defense counsel argued for venue in Illinois, most likely in or near Skokie.
A decision is expected within the next fourteen days.
Last week the WSJ reported attorneys in a pending NJ Vioxx case are expected to make use of internal Merck documents that suggest that a number of Vioxx users beganhaving heart problems as early as a few weeks after beginning to take Vioxx.
This may be a set of newer liability documents - they were provided to a different set of plaintiff attorneys last week in the current Texas Vioxx court case, Ernst v. Merck. This could be used to counter the key Merck's defense - Vioxx users were not at an increased risk for developing a heart attack or a stroke until after using Vioxx for at least 18 months.The documents relate to the Victor trial (not VIGOR). The research was commenced by researchers with some unspeficied affliation or association by Oxford it is alleged. You can expect a major battle for the data now, as the information out there suggests that the study and its underlying information would not be published for at least two more years.