Tuesday, February 27, 2007

A Lawyer Too Smart For His Firm?

I'm frequently amazed by the lack of foresight "litigators" have when it comes time to generating business.

Recently I was contacted by an out of state attorney. He asked if I would assist with an injury claim that was "almost over." I agreed to assist for a percentage of any fee earned by the originating attorney. The case resolved as predicted in about six weeks from my initial involvement. The claim came from a smaller town in Georgia.

As I worked on the case, I saw in the letters in the file that I was not the first choice. A "civil practice" law firm that handles injury cases in that Georgia town had insisted on a retainer for fees and costs before "anything" could be done. Needless to say a retainer was not sent, and I was asked to help. Apparently no due diligence was done, because if it was, much could have been learned. Heck, even Googling the referring firm would have helped.

Now, with the matter at a close, fees paid, and the mutual client very happy, guess what? In today's mail there is a box of paper with additional referrals, several as additional counsel, others to handle from start to finish. All of them originate from that same town (or nearby it) where the civil practice firm decided it would demand a retainer on Case #1 from the out of state firm. Looks like I will be busy for a bit, and if I get results, there will be more cases to assist on in the future.

How smart was that civil practice lawyer? So smart that he passed on what will likely be a good working relationship that would generate work for months, if not years. For what? A small retainer? I can tell you that my fee was several times that amount in the end. In fact, I am quite happy that I was able to assist, regardless of later cases referred.

My office and probably yours has instances like this. Do you slow down a bit to see what the end result of a decision is - or are you so busy "being a litigator" that you cost your firm money? The civil practice firm lawyer may never know. Perhaps he does not care. I bet he does, though.

If he's smart.

Monday, February 26, 2007

EPO Drug: Bad News

Drugmaker Roche said it is suspending recruitment into a trial of Cera in anemic lung cancer patients because of an "imbalance" of deaths across the four arms of the study, which was conducted outside the U.S.

For moe, go here.

Thursday, February 22, 2007

Xolair (Asthma Drug): FDA Demands Black Box Warning

The asthma drug Xolair should carry the strongest warning possible-- a black box warning - about a reaction known as anaphylaxis, according to the FDA. According to the FDA, anaphylaxis -- a severe allergic reaction -- occurs in about one in a thousand patients taking the medication.

It can lead to breathing problems, fainting and hives no matter what dose was given, the agency warned. Doctors and patients should be prepared to treat the reaction, which may occur as late as 24 hours after patients take Xolair.

For more, go here.

Tuesday, February 20, 2007

GOP's Lott Submits Bill to Strip Insurance Industry Antitrust Exemption

From various sources, including AP, CNN, etc.

Senator Trent Lott, a fierce critic of the insurance industry's response to Hurricane Katrina, joined Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and ranking member Sen. Arlen Specter, R-Pa. on the Senate floor today to introduce a bill repealing the insurance industry's federal antitrust exemption.

House members, including Rep. Gene Taylor, D-Bay St. Louis,, Rep. Pete DeFazio, D-Ore., Rep. Bobby Jindal, R-La., are expected to announce the introduction of identical legislation in the House at an afternoon press conference on Capitol Hill.

Lott's home was destroyed in the hurricane and is part of a lawsuit against State Farm & Casualty Co.

The Insurance Industry Competition Act of 2007 would bring insurers under the scrutiny of the Federal Trade Commission by lifting the exemption they currently have under the McCarran-Ferguson Act. States would continue to regulate insurance companies but the FTC would have authority to review any "unfair methods of competition" such as price-fixing.

The bill is the latest effort by lawmakers to bring the insurance industry to task for refusing to pay claims of wind damage from Katrina by blaming water damage, covered by the federal government's flood insurance program.

At the end of this month, the House Financial Services Committee's oversight and investigations subcommittee chaired by Rep. Mel Watt, D-N.C. will hold a hearing on whether private insurance companies have been properly paying claims after Hurricane Katrina. The McCarran-Ferguson Act currently exempts the "business of insurance" from federal antitrust laws, to the extent that it is regulated by the states.

McCarran-Ferguson grants the insurance industry a limited antitrust exception so that the sector may collectively collaborate for purposes of data collection and rate-and-form developments. It also exempts the sector from federal regulatory oversight as respects the "business of insurance," assigning that obligation "To the Several States."

Wednesday, February 14, 2007

Seroquel Up Next: Litigation Ahead

Many claim that the effects of Seroquel are similar to Zyprexa's. AstraZeneca informs that nearly 10,000 people in the U.S. have filed suit.

The claims assert failure to warn, including severe weight gain and the onset of Type 2 Diabetes. Many of the assert that there were numerous instances of off label use.

Predictably, a rep. for the drugmaker said "here are no defects in Seroquel." Go here.

Tuesday, February 13, 2007

Zyprexa: Study Finds Reason for Weight Gain

One of the side effects of the drug Zyprexa (which was prescribed to treat mental illnesses such as schizophrenia) was that it resulted in substantial weight gain in patients taking the medication.

According to a recent report, the drug increases the activity of an enzyme called AMPK in cells in the part of the brain that regulates eating behavior. AMPK is shorthand for the AMP-activated protein kinase (AMPK). The cells that make up our bodies need a constant supply of energy to function. AMPK is key in regulating cellular energy, and serves as a gas gauge by sensing how much energy a cell has.

The study was published in the Proceedings of the National Academy of Sciences.

AMPK's increase was because the antipsychotic drugs were interfering with the important protein histamine.

For more, go here.

New Warnings for Ketek (Antibiotic)

The FDA announced revisions to the labeling for the antibiotic Ketek (telithromycin) designed to improve the safe use of Ketek by patients. The changes include the removal of two of the three previously approved indications -- acute bacterial sinusitis and acute bacterial exacerbations of chronic bronchitis -- from the drug's label. The agency has determined that the balance of benefits and risks no longer support approval of the drug for these indications. Ketek will remain on the market for the treatment of community acquired pneumonia of mild to moderate severity (acquired outside of hospitals or long-term care facilities).

Sanofi Aventis updated the product labeling with a "boxed warning," FDA's strongest form of warning. The warning states that Ketek is contraindicated (should not be used) in patients with myasthenia gravis, a disease that causes muscle weakness.

For more go here.

Monday, February 12, 2007

Atlanta's Newspaper: Trucking Safety Article

A reporter wrote about one city in Metro Atlanta and the efforts to catch unsafe trucks on the roadways.

According to the article the City of Snellville has seen a a rise in the volume of truck traffic and a significant number of truck-related accidents, because truckers use state road GA 124 and U.S. 78 as part of a cut-through to bypass weigh stations on the interstates.

The police department assigned a certified commercial vehicle inspector and who handles about 30 to 40 truck inspections each month. Out of those, about 20 to 25 trucks or drivers have been put out of service until violations were corrected. One tractor-trailer was found to have only one working brake.

For more go here.

Saturday, February 10, 2007

A Novel Worth Reading: Damage Control

A new book by Robert Dugoni is Damage Control. I had an copy mailed to me and it's worth a read. Dugoni formerly was a litigator on the West Coast.

The protagonist is Dana Hill, a Seattle-based attorney at a big firm. She has the typical big firm pressures when in the span of a hundred pages she is told she has breast cancer; learns that her lawyer husband is cheating on her with a paralegal from his firm; and worse - and central to the book - finds out that her brother is killed during a home robbery. All this while tending to a young child. Her boss is as you can almost sense a Type A overweight heart-attack-in-the-making ogre who demands more and more from Hill.

It's a light read and fast moving. A number of the characters are a bit predictable, but that's a minor issue with me. You may be able to see the key plot twist several pages before it happens, but the author does a pretty decent job at keeping you entertained.

I'm an avid reader, and while I tend to stay away from books based in law, would recommend this one for the beach or the lake, or any short vacation. I raced through it in four days.

Thursday, February 08, 2007

Recent Georgia Appellate Court Decision: Jury Selection

Sellers v. Burrowes.

In this medical malpractice action, the jury found in favor of the defendants, Celio Burrowes and his professional corporation. The plaintiff, Howard Sellers, the surviving spouse of Martha Sellers and the administrator of her estate, appeals. In three enumerations, Sellers contends that the trial court erred by failing to dismiss two jurors for cause. We agree that the trial court erred in failing to dismiss the first juror for cause and must therefore reverse this case for a new trial.

In both civil and criminal cases, the trial judge is the only person in a courtroom whose primary concern, indeed primary duty, is to ensure the selection of a fair and impartial jury. Because of this, trial courts have broad discretion to evaluate and rule upon a potential juror's impartiality, based upon the ordinary general rules of human experience, and a trial court may only be reversed upon a finding of manifest abuse of that discretion.

(Citations and punctuation omitted.) Kim v. Walls, 275 Ga. 177, 178 (563 S.E.2d 847) (2002). Viewed in this light, the record shows that the trial court conducted voir dire in the three phases: first, the trial court asked questions with regard to whether the jurors might be legally disqualified from serving based on a relationship with the parties or their attorneys or a financial interest in the outcome; second, the attorneys asked questions of the jurors as a group; third, the attorneys asked follow-up questions of individual jurors with the opportunity to do so in private at either the attorney's or the juror's request.

1. The first juror at issue in this case was juror number 14. When the jury pool was questioned as a whole, juror number 14 responded affirmatively to plaintiff's counsel's question as to whether “doctors should be given special protections and should be treated differently than other people who are treated in the same civil setting, tort type of a case, negligence type of a case.” When she was questioned individually, she explained why she thought doctors should get “special protections:”

I have three uncles who are doctors. My sister just graduated from medical school. And just like, given the number of people that they see, you know, in the medical profession in itself, I mean, if you are dealing with people, you are, you know, there's-no one answer solves all people. We are not machines. So, I mean, I just see that there might be a likelihood that people may make mistakes. And I don't see how they could be judged very harshly for those. So I'm a little partial to doctors.

When asked whether she could put her “beliefs and backgrounds aside and be fair and impartial based on what the evidence is and what the court charges,  she replied, the "evidence would have to be very strong and very clear for me to decide against, I mean, for me to go against what I have told you. Plaintiff's counsel then asked if she would have this belief regardless of what the court tells you that the standard is? The juror answered:

I guess, I guess I could try to keep in mind what the court says. It's just that, you know, I come already with a frame of mind that it might require additional work on one part to convince me otherwise. You know, like I just, I come with this understanding that just from seeing my uncles and, you know, they've been parts of lawsuits. And, I mean, things happen, you know.

At this point, plaintiff's counsel ended his questioning and defense counsel asked if the juror could set aside her personal feelings and be governed by what the judge tells you is the standard. She stated more than once, " You know, I'm not sure if I can be. I mean, I'm just being candid." The juror added, "I hate to say, I have a stereotype in my head. But just, you know, from personal experiences."

Defense counsel then attempted to rehabilitate the juror as follows: We are just looking to try and get fair and impartial folks. And that's the object of this. And the court tells you and we hope that people are sophisticated enough and are able to understand that enough to put those aside. Otherwise all of us would be unable to ever look and analyze and make a decision in this context.

After a break in which other jurors were questioned, plaintiff's counsel resumed questioning the juror. She once again explained her bias in favor of doctors in general:

Just my overall view is that, you know, doctors deal with people. And each individual is different. And, you know, the chemical composition and everything is different. It's unlikely that they can predict with 100 percent certainty how a procedure is going to go for every single person.

The other thing, also is, given like the, you know, new practices of the insurance companies and how they pay doctors and how the insurance companies, the way they pay doctors, they pay them through-the legal results as soon as possible. I mean, you can't really expect, you know, a human being, you know, people aren't perfect, to work on a consistently fast pace and not make any mistakes.

When asked if she could set these feelings aside after being instructed about the law, the juror acknowledged that she would not favor the doctor's position before she heard any evidence. However, she also stated, the evidence will have to be very, very strong in order for me to change my mind.

When defense counsel asked her again if she could be fair and impartial, she replied that while she wanted an opportunity to serve as juror, in “this particular case, I don't think I'm the best person"I think that doctors should be given-I hate to use the word slack, but, I mean, they should be given a little bit of lenience and understanding just because of the speed in which they have to do things and the uniqueness of the human body.”

At this point, the trial court stepped in and explained to the juror that the standard of care takes into account the speed at which doctors, the unpredictability of patients. There are national standards. Doctors are going to come in this case and tell the jury what their opinion is of national standards, which should account for the very things that you're concerned about. If you knew the case was about applying national standards to this doctor's treatment of this gentleman's wife, does that make you feel that you could fairly assess the evidence and apply the law?

At the conclusion of the voir dire, plaintiff's counsel moved to strike the juror for cause and the trial court denied it. Sellers exhausted his peremptory strikes and used one of them to strike juror number 14. Sellers contends that the trial court abused its discretion by failing to dismiss juror number 14, and we agree.

Running through the entire fabric of our Georgia decisions is a thread which plainly indicates that the broad general principle intended to be applied in every case is that each juror shall be so free from either prejudice or bias as to guarantee the inviolability of an impartial trial. If error is to be committed, let it be in favor of the absolute impartiality and purity of the jurors.

(Citation and punctuation omitted.) Guoth v. Hamilton, 273 Ga.App. 435, 437(1) (615 S.E.2d 239) (2005). While there is a presumption “that potential jurors are impartial,” Sellers rebutted that presumption in this case. Brown v. Columbus Doctors Hospital, 277 Ga.App. 891, 893 (627 S.E.2d 805) (2006). Despite the best efforts of the trial court and defense counsel to rehabilitate this juror, she did not budge from her belief that she would find in favor of the doctor absent “clear and convincing proof” and that she would resolve any doubts in the evidence in favor of the doctor. As the juror aptly stated, in “this particular case, I don't think I'm the best person” to serve as a juror.

Because the trial court abused its discretion by failing to dismiss juror number 14 for cause and Sellers exhausted his peremptory strikes, Sellers is entitled to a new trial. See Guoth, supra, 273 Ga.App. at 440(1).

2007 WL 416297 (Ga.App.), February 8, 2007.

Wednesday, February 07, 2007

Avandia News: Risks of Bone Fractures?

Avandia -- a diabetes drug -- may have a higher risk of hip and other fractures because the medicine decreases bone formation, according to new research by doctors in New Zealand.

The latest research comes when Avandia is being challenged by new market entrants and raises the question as to whether the drug increases the risk of osteoporosis, or brittle bone disease.

For more, go here.

Friday, February 02, 2007

New: Lawyer Blog 'For Legal Professionals & Their Pets"

Yes you read that right. Amicus Canis.

From the site:

In this day and age, some businesses encourage pet owners to bring to their family pets to work. It can provide not only companionship but also a means of stress relief in a hectic work environment. I've talked with several dog owners and how much their pet brings them much needed stress relief at work and joy in the office. This blog is geared toward pet owners in the legal profession.

Good luck folks.

FDA Slaps Drug Co. Ad's Misleading

The FDA claims that MGI Pharma published a "misleading" advertisement for the company's implanted therapy to treat brain tumors.

A two-page promotional ad for the product, called gliadel wafer, does not disclose its full indication and presents unsubstantiated claims, according to the FDA.

For more, go here.