Monday, March 28, 2005

Are you an idea lawyer?

OK, so I have now violated my rule not to pilfer original stuff from lawyer bloggers. I had to do it this time, in that Dennis Kennedy posted well thoughts regarding "idea" people:

He said:

1. It's pretty rare to find people who will throw out idea after idea and have them shot down because of the ego factor. People like working with me because I can do that (or so they tell me) without reaching a point where it becomes necessary to start throwing things and walking off in a huff.

I do the same in my offices. There is no pride of ownership of a good idea.

2. Being known as an idea person actually helps you get through the bad ideas without getting too ego-involved.

I say to anyone that will listen that you can call me the head janitor at my firm if any of my ideas help a client and make us money. No ego.

3. Some people have much less patience for the ideas in stage #2 than others do. No one has as much patience for my stage #2 as I do.

4. If you treat as ideas as simply ideas (not "your ideas") and are willing to free up ideas and let other people judge whether they are "good" or not, you really do get the best ideas "out to a place where they can be put to use."

5. Removing as much ego as possible from the process makes you much calmer when the day comes when, inevitably, you see someone claim credit for an idea you originated. The good news on those days is that your friends always remember the idea came from you.

[Originally posted on DennisKennedy.Blog (]

Thanks Dennis.

Wednesday, March 23, 2005

Problems looming for Natrecor? An IV heart failure drug

This is from various wires and news sources:

A study and an editorial published in Circulation, the medical journal of the American Heart Association, raise concerns about whether Natrecor, an intravenous heart failure drug sold by Johnson & Johnson, is safe for the kidneys.

Natrecor is viewed as a promising treatment for acute heart failure. Heart failure, where the heart loses the ability to pump enough blood.

The author of the studay is Jonathan Sackner-Bernstein, the director of the clinical research at North Shore University Hospital in Manhasset, N.Y.

The Sackner-Bernstein paper includes studies done at doses higher than are advised on the drug's label.

Monday, March 21, 2005

Vioxx MDL 3/17/05 Hearing Notes

I attended the hearing before Judge Fallon in New Orleans, LA regarding the Vioxx MDL. More than 200 attorneys, reporters, and vendors were in attendance.

The Court informed that it shall maintain a website on the litigation at: . The next hearing is April 28, 2005.

Russ Herman of the HermanMathis firm spoke as liasion counsel for Plaintiffs. Counsel for Merck was represented by an attorney with Williams and Connelly. Issues covered during the hearing included dates for submission of all counsel seeking to be named to the Plaintiffs' Steering Committee, Position Papers, and Discovery guidelines.

It is expected that at least 10 to as many as 15 attorneys will sit on the Plaintiffs' Steering Committee. Speaking before a crowded courtroom several attorneys informed the Court that there were a number of pending claims both in state and federal court. At least two attorneys representing consumers asked that the Court include their clients' interests via a seat on the PSC.

Currently there are eleven cases set for trial in 2005 throughout the country. The first case that may be tried will be in Alabama. There are five cases set for trial in New Jersey before Judge Higbee. There are also eleven cases deemed class actions separate and apart from individual claims. Nine of the pending class actions are in Federal Court.

The issue of Tolling Agreements was discussed. Judge Fallon indicated that he would consider them under certain conditions.

Counsel discussed a central depository for documents, as well as a way to allow depositions to be taken, heard, and monitored via the web.

What else was learned that day? Hard to say. It is clear that many attorneys simply wanted to show up at the initial conference. Several well respected litigators were there to monitor the proceedings. Others to see if any information could be gleaned that would help.

Wednesday, March 16, 2005

Meridia warning coming?

This is from various wire sources:

The Food and Drug Administration is close to issuing a health advisory on Abbott Laboratories' weight-loss drug Meridia, one of several prescriptions that have engulfed the agency in controversy over its safety monitoring of drugs on the market, a source close to the FDA said.

While the FDA stands by past statements that Meridia is safe and effective if used according to its label, the source said the FDA is expected to issue an advisory that could result in a stiffer warning, restricted use or something more minor such as updated prescription guidelines.

Friday, March 11, 2005

I trial lawyer friend of mine named David Swanner has a well done article titled: Using Technology to be a better Trial Lawyer

Included within the twelve points are gems like:

"Use the Internet for Research on Injuries and Defendants – Accurint is a great source of information on people. We can get as much from a $5 search as we were getting from $100 investigator searches. Check out the background of your defendant. Research your injury. With Google having an image search, this makes our job a lot easier. Jerry Lawson at Netlawblog explains how to do an image search. Research the product, the defendant, the injury and anything else regarding the case. The internet is a free ice cream shop. Grab a scoop and dig in."

David's site can be found here.

Damages: Pre-existing

The Illinois Trial Bar has an online current periodical called Trial Briefs. It's a good read. The article I liked is: Whether the aggravation of a preexisting injury is a separation item of damage.

You can find it: here. It is in PDF format.

Wednesday, March 09, 2005

O.C.G.A 9-11-9.2 Med Auth

My thanks to attorney Chris Thompson, who prepared a 9-11-9.2 authorization. Here it is, and make sure you thank him if you use it:

PURSUANT TO O.C.G.A. * 9-11-9.2

COMES NOW Plaintiff in the above-styled action, and pursuant to O.C.G.A. * 9-11-9.2, files contemporaneously with the Complaint, the following Authorization:

I, [client] as Personal Representative of the Estate of [DECEASED], hereby authorize the attorney representing [PARTY] to obtain and disclose the protected health information contained in medical records of [PATIENT] to facilitate the investigation, evaluation, and defense of the claims and allegations set forth in the Complaint which pertain to [PATIENT]. This Authorization includes defense attorney*s right to discuss the care and treatment of PATIENT with all of PATIENT'S treating physicians, but only if the patient*s attorney, [NAME, ADDR, TEL] is present at these discussions. This Authorization does not provide for the release of protected health information that is considered privileged.

I request that you notify my attorney, [NAME] in the event you provide my protected health information to anyone. I further request that you notify my attorney of any request by defense counsel for you to meet with defense counsel to discuss PATIENT'S protected health information and further request that no meeting or any type of communication or discussion with defense counsel take place unless the patient*s attorney, is notified and present. Please be advised that I have signed this Authorization in a good faith effort to comply with O.C.G.A. * 9-11-9.2 but I DO NOT WAIVE my rights under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and its implementing regulations. By signing this Authorization, I am not waiving and expressly reserve any and all objections I may have to O.C.G.A. * 9-11-9.2 to the extent this law is in violation of or pre-empted by HIPAA. See 45 C.F.R. * 160.203.

Defendant*s attorney is not permitted to use this Authorization and you are not permitted to disclose PATIENT'S protected health information to Defendant*s attorney, unless Defendant*s attorn ey requests for PATIENT'S protected health information complies with 45 C.F.R. * 164.512(e).

This Authorization shall expire six (6) months from the date of its execution.



Tuesday, March 08, 2005

States using Daubert

A link to which states use Daubert : Here

Offers of Judment and Loser Pays

It's been around, and now it's in Georgia.

The state of Alaska has followed a loser-pays system for decades. Tthe Alaska Rules of Civil Procedure provides a modest degree of fee-shifting.

In the mid-1990s, both Oregon and Oklahoma enacted statutes that applied loser-pays principles to significant categories of litigation in their state courts. These laws are discussed in the Olson/Bernstein Maryland Law Review article cited below.

Although no national organization has arisen to promote it, loser-pays continues to be a popular reform idea in many states. In South Carolina, 57 House colleagues joined state representative Gresham Barrett in sponsoring a loser-pays measure. Loser-pays measures have been introduced inArizona and, with respect to specialized statutory areas, such states as Colorado.

Many states have also introduced or strengthened offer-of-settlement systems in which at least some costs are available to parties when the other side turns down a proffered settlement and then does worse at trial. Frequently these laws are hampered in their effect because they exclude what are the largest categories of cost, attorneys' and expert witnesses' fees.

One particularly promising field for the extension of loser-pays principles is in the realm of statutes governing disputes between business entities.

Loser-pays is the subject of a large theoretical literature generated by economists and other model-builders who mostly have found themselves at a loss to predict from their models whether litigation will be on average better restrained in the one type of system or in the other. Professors Thomas D. Rowe, Jr. (Duke) and David A. Anderson (Centre College) ran simulations of the effect of various offer-of-settlement rules on lawyers' behavior in settling cases. ("Empirical Research on Offer of Settlement Devices", 1996; reprinted by Texas Association of Mediators, link now dead).

For further reading: Walter Olson and David Bernstein, "Loser-Pays: Where Next?", Maryland Law Review, 1996 (55 Md. L. Rev. 1161).

Offer of Judgment Survey

Offer of Judgment Survey

The American College of Trial Lawyers has compiled (PDF) a survey relating to "offers of judgment", which operate as a sort of scaled-down version of loser-pays kicking in when one party to a lawsuit turns down a settlement offer from the other and then does less well at trial.

Most (but not all) such provisions around the 50 states allow only miscellaneous costs, and not attorneys' fees, to be awarded in such a case; most allow only the defense side to set the process in motion, but some extend the right to plaintiffs; a few states use such an offer as the trigger for the accrual of prejudgment interest; and there are many other local wrinkles which deserve consideration by states seeking to strengthen their own practice in this area.

When the Defendant wants to structure with "their" structure company

If you are being put in a box over the selection of a company that will be the preferred vendor on any defendant's proposed structure, in my humble opinion you should consider sending the form letter below. Many thanks to our friends at . The shows on Thursdays feature advices and comments helpful trial lawyers and their clients:

We are in receipt of your offer to settle and are aware of the terms you are requiring, among them, your requirement that if my client is to obtain a tax qualified, section 130 assignment of periodic payments, that we use either your broker or a life market selected and priced by your firm. I have attached your offer to settle in the form of a structure, the terms of that structure, and other related information to this letter as addendum A.

As you are aware, several states now require the assignor to provide internal rates of return, cost of the annuity and full disclosure of any commutation options the life company might have available in their policy form. As a matter of disclosure to our client in this case, we are requesting those same items listed above be provided in this matter, and will require them prior to acceptance of any offer. If you can not provide them my broker, who I have engaged separately, will be glad to obtain them for us.

As you are further aware, the recently decided Connecticut Supreme court case, Macomber v. Travelers, exposed several long standing questionable practices in the area of settling claims with settlement annuities. Among them, illegal or questionable commission sharing, selling insurance with out a license, short changing schemes and direction of premium to in house markets with out an open bid to insure the best price for the injured party. While we hope that your firm does not engage in any such activity, given the certification of this case as a class action, we now have a duty to our client in this matter to insure that we have on record that such harmful practices are not occurring in this case. As you know our fee agreement with our client requires we know exact costs or we will potentially be over charging our client and be in a very awkward position.

Given the above, we need a letter or release specifically stating that your firm does not and will not participate in any commission sharing, i.e. rebating, arrangement between the broker you are requiring us to use, and your company or any of its agents or assigneds. We would like further assurance that in the placement of this annuity that any and all “daily rates”, rate improvements, or pricing changes that reduce the cost or boost the payout will be immediately disclosed and provided to our clients in order to insure that any cost savings in the pricing process go to benefit our client and are not diverted back to the casualty company in the form of savings.

If company policy means that you are unable to provide the specific items in writing to us on this case we will then ask to use a broker of our choosing, who has a fiduciary relationship with our client and firm, to arrange the funding of this agreement and placement of the annuity contracts. Or if you prefer, we can have our brokers work jointly on this matter so both of our interests are protected. However, our acceptance of the offer to settle using a structure is contingent on the above terms, so please contact my office to let me know if you will be able to comply with them before I relay this offer to my client.

Does Medicaid check drug prices?

U.S. Medicaid officials failed to properly check the prices drug companies charge the health insurance program for the poor and disabled, according to a government report released this week.

The Center for Medicare and Medicaid Services (CMS) did not take necessary steps to verify that manufacturers were offering their best prices to the program, the Government Accountability Office (GAO) report found.

About 53 million Americans are enrolled in the joint state-federal Medicaid program, including many low-income household children and elderly patients in nursing homes.

States pay for the medications, then seek reimbursement from manufacturers. Drugmakers determine the best price and the average wholesale price, using both measures to determine reimbursement. CMS officials are charged with overseeing how the firms set those prices.

Next year, about 6.3 million Medicaid beneficiaries who are also eligible for Medicare, the insurance program for the elderly, will have their medicines paid for under a new Medicare drug benefit discount program.

The fallout is just beginning. Watch for more on this developing story.

Wednesday, March 02, 2005

Georgia: Form Offer of Judgment


Plaintiff submits the following offer and states:


Plaintiff will accept $______.00, and will enter into an Agreement dismissing the pending action with prejudice under the following conditions delineated below:

This offer is made pursuant to O.C.G.A § 9-11-68;


The party making the proposal is the Plaintiff;


The party to receive the proposal is the Defendant XXXXX through counsel;


The claim(s) this proposal is attempting to resolve: The negligence action currently pending as to all counts.


The relevant conditions of this offer are as follows: That $__________ shall be paid to the Plaintiff within the time required by the referenced statute; the amount proposed to settle the claim is as stated, no punitive damages are applicable; and the proposal includes attorneys fees and all other expenses that are part of this legal claim.


By making this offer of judgment pursuant to O.C.G.A § 9-11-68, Plaintiff does not agree or concede that this statute is constitutional. In fact, Plaintiff and her lawyers believe that O.C.G.A. § 9-11-68 is unconstitutional. However, Plaintiff’s lawyers have a duty to represent Plaintiff competently based on existing law, which includes O.C.G.A. § 9-11-68 unless and until that statute is found unconstitutional.

This______day of ______________, 2005.


Tuesday, March 01, 2005

Tysabri pulled from the market

The debacle over faulty drugs besetting the pharmaceutical industry has now spread to the biotech sector, with one of its best performing companies and a partner pulling their highly touted multiple sclerosis drug from the market after one patient died and another fell seriously ill.

The FDA approved the drug in November and Tysabri accounted for $3 million in sales for Biogen in 2004 while Elan rang up $6.4 million in sales in the fourth quarter, counting on Tysabri to help restore it to profitability by next year.

The companies said the decision came after recent reports of two cases of serious effects among patients who used the drug along with Avonex, Biogen Idec's earlier MS treatment, in clinical trials.