Friday, July 29, 2005

Email or Instant Messaging in your office?

News this week points out that younger adults and teens are using Instant Messaging (IM) as opposed to emails to communicate. Some consider email the way that "old people" convey messages. IMs are indeed a way to get to someone much faster.

Does your office "IM?" Ours does, in a secure environment. While there was some initial resistance to the use of it, IM'ing has now become so pervasive here in my office that I have had to admonish someone sitting outside my door that it is ok to actually leave his chair (10 feet from my office) and ask me a question in person. Others are able to log in from work and IM each other, exchange files, and have quick "chat" meetings online.

If your office does not have an IM system, why not? If you do consider it, you may wish to implement the same rules that may be in place with email.

Thursday, July 28, 2005

Vioxx and the battle over the autopsy doctor's testimony

The doctor in the Texas Vioxx trial was deposed on Tuesday July 26, 2005 and the Court is now considering a Motion to Exclude her testimony.

She testified that the decedent in the case "more likely than not" did in fact have a heart attack.

Also during the deposition the doctor testified that she was flown on business class (the flight cost was $6,000) and that the attorney had made reservations for her stay at the posh Four Seasons in Houston.

Comment: If the Court allows the testimony to be heard this may look very bad for Merck. For the life of me I can't figure out why the attorney did not even list the doctor on the possible call list in the PTO.

Wednesday, July 27, 2005

Using the Wayback Machine in your law practice

I've spoken at the last two STLA conventions regarding using the Internet as a weapon in your law practice. Each time I've mentioned using the Wayback Machine as a good source to look up old web pages on a potential party.

Today's Wall Street Journal has a page one article on the usefulness of the Wayback Machine. It's worth a read.

GA law: OCGA relating to Med Auths PREEMPTED by HIPAA

Find the Order here.You must have Adobe or other PDF viewer to open. I have news for you, this statute may be foisted upon all injury cases, see below.

The statute:
Medical Authorization Form Required in Medical Malpractice Actions O.C.G.A.

The statute was enacted under the Georgia Tort Reform Act to assist defendants in medical malpractice actions in obtaining the medical records of the plaintiff or the plaintiff’s decedent. A chronic problem in lawsuits, according to insurers and their attorneys they claim is obtaining the medical records of the plaintiff who has brought suit.

With the enactment of the federal HIPPA regulations, obtaining those medical records has become even more challenging. SB3 was to address this problem under this new statute requiring that the plaintiff must file a “medical authorization form” contemporaneously with the filing of the complaint to provide that the attorney representing the defendant is authorized to obtain and disclose protected health information contained in medical records to assist in the investigation, evaluation and defense of the claims in the complaint.

The authorization does not only allow defendants to obtain the medical records, but specifically allows the defendant’s attorney to discuss the care and treatment of the plaintiff with all of the treating physicians. Failure to file the medical authorization form with the complaint subjects the complaint to dismissal.

This new statute is only applicable in medical malpractice claims. A new bill has been proposed in the Georgia House, HB575, which would require the same medical authorization in regard to all wrongful death or personal injury actions, regardless of whether they are medical malpractice actions or not. HB575 will likely be considered during the 2006 Georgia legislative session.

Vioxx Trial halted while Court allows "surprise witness" to be deposed

The trial was put on hold on July 26, 2005 as attorneys in the first Vioxx-related civil trial on took the deposition of the coroner who conducted the autopsy of the man who died of an irregular heartbeat eight months after starting to take Vioxx. The doctor: Maria Araneta, M.D.

Merck's attorneys asked state District Judge Ben Hardin to postpone her testimony to question Araneta via depositon. The deposition was completed Tuesday afternoon, but Hardin had yet to decide if Araneta's testimony would be presented to the jury.

Lanier did not have Dr. Araneta on a witness list by the pretrial deadline, and Merck's legal team held Lanier to pretrial rules against springing such a witness in arguing for the deposition.

Lanier said Araneta intended to testify that Ernst died too quickly for his heart to show damage and that he likely died of a heart attack.

My comment: Perhaps this is too critical, but how does the Plaintiff's attorney not list as a potential witness the doctor who performed the autopsy? Did he really think that the doctor would be allowed to testify without any type of exam? Isn't it risky that the defendant could have merely sought to exclude the testimony? I would have listed her at a minimum.

Monday, July 25, 2005

Vioxx Trial News

I'm not posting daily on the trial because to be candid there is so much that you can find online and in the news papers. Friday however there was to me significant testimony from a Plaintiff's expert.

Dr. David Egilman, a public health professor at Brown University, began testifying Friday as an expert witness for the plaintiff's team. Egilman said Merck sales representatives repeatedly encouraged him to prescribe Vioxx after the drug went on the market in 1999.

Egilman said he resisted those efforts. He said six-month results of a year-long study of Vioxx competitor Celebrex published in 2001 said the drug prevented ulcers, but the unpublished full-year results showed the opposite. Both drugs were developed to relieve pain without causing stomach bleeds, which could be side effects of other pain relievers like aspirin.

"That clued me in that all these drugs may have had problems, so I didn't want to use any of them," Egilman said.

What is interesting from a trial standpoint is that this expert has testified for the Plaintiff's attorney in other cases including asbestos litigation. How will this be seen by a jury? Why couldn't the attorney have find a doctor who was not heavily used in asbestos litigation?

Thursday, July 21, 2005

Merck Stock news today July 21, 2005

Merck & Co. reported a drop in second-quarter profit hurt by a tax charge and the withdrawal last year of its Vioxx arthritis drug. Total sales fell 9 percent to $5.5 billion, which was attributed to the loss of Vioxx revenue in large part, which at one time generated some $2.5 billion in annual revenue.

Legal costs associated with the withdrawn drug are expected to rise,but Merck did not increase its legal reserves during the second quarter.

Comment: Why didn't it increase legal reserves? Probably to avoid a double whammy on the pounding the stock is currently taking on the reports.

Crystal Ball: I do believe that the Texas case may settle before it a jury verdict is returned.

Monday, July 18, 2005

Wisconsin Supreme Court strikes down med mal caps

Last week, the Wisconsin Supreme Court issued a 4-3 decision striking down as unconstitutional the state’s cap on non-economic damages in medical malpractice cases. The $350,000 cap went into effect in May 1995 (though it was indexed for inflation and had grown to $433,000). The decision rests on equal protection grounds, though the Court did not address other asserted constitutional infirmities.

The Court found that there was no rational basis for the cap, concluding after examining the available empirical evidence that the legislature’s faith in the cap was too speculative to justify a reduction in patient’s rights.

The ruling involved the case of Matthew Ferdon, now 8, who is partially paralyzed and has a deformed right arm as a result of an injury that occurred at birth. The case, Ferdon v. Wisconsin Patients Compensation Fund, runs 179 pages long; the majority opinion was written by Wisconsin Supreme Court Chief Justice Shirley Abrahamson.

His parents sued, and Matthew was awarded $403,000 for future medical expenses and $700,000 in noneconomic damages.

But Naze reduced Matthew’s award for noneconomic damages to comply with the state-imposed limits, which had increased to $410,322 by 2002 when the verdict came down.

For more go here.

Friday, July 15, 2005

Cox 2 News from Canada: Bextra, Celebrex and Vioxx

News from Canada with an important link below:

Immediate actions Health Canada will take include:

  • Manufacturers of all NSAIDs currently on the market in Canada will be requested to provide updated patient safety information for these products. This would include Celebrex, which is currently available in Canada by prescription, and ibuprofen products currently available over-the-counter;
  • Health Canada will continue its assessment of whether Bextra should be returned to the Canadian market after sales were voluntarily suspended in April 2005. The recommendations from the panel will be a key factor in the Department's final decision, which is expected in the coming weeks;
  • Health Canada will be conducting further analysis and communicating to provincial health regulators the panel's recommendations on current over-the-counter availability of some ibuprofen products, in particular to address the possibility of inappropriate, long-term use of these products;
  • Health Canada will issue guidance to manufacturers, establishing standards for the risk and benefit information that must be included in product labelling of NSAIDs.
The report can be found here.

In the report, Health Canada reported the following:

Eight to five that Bextra NOT be allowed back on the market. The majority:
a) felt that there was not sufficient information available about the cardiovascular risk associated with Bextra,
b) was concerned with the possible increase in a rare but serious skin disorder, and
c) felt that numerous other NSAIDs with more complete information about benefits and harms are already on the market.

The minority who voted that Bextra should be marketed felt that a) the increased risk of cardiovascular disease caused by Bextra is likely to be similar to that of other Cox-2 selective inhibitors, b) the number of patients suffering severe adverse skin reactions is very small and similar to many other drugs still on the market, and c) some patients will benefit from having another anti-inflammatory agent available. Those who voted for the marketing of Bextra felt that it should only be marketed as a third-line anti-inflammatory agent to be used if others have failed.

It's worth reading.

Wednesday, July 13, 2005


Why does someone refer a potential case to you or your Firm?

My firm in addition to advertising does generate cases the old fashioned way - through referrals. As John Jantsch says in his blog, "People refer business ... services, products, [and] people- if it makes them look and feel good."

Jantsch notes one key item in his list of factors:

    "Met Expectation - People want to be sure that you will meet their expectation - they want the same experience over and over again. "

Does your Firm stack up in this department? I try to update referring attorneys on a regular basis, with 90 day reports. It may be a simple email- trial has been set.

What does drive me crazy though is a Firm that seeks business from me then ignores the Firm after the case is referred. The solution? No more cases.

Tuesday, July 12, 2005

More corporations hiring Plaintiffs' attorneys to do battle

An excerpt from's article published this morning:

Plaintiffs attorneys say big businesses are hiring them with increasing frequency to help fight their legal battles. For example, in Florida, personal injury lawyer Jack Scarola was the lead counsel in billionaire Ronald O. Perelman's recent $1.4 billion win in a securities fraud suit against investment bank Morgan Stanley.

In Illinois, asbestos litigator Jeff Cooper's Chicago firm CooperSimmons, which has seen an "explosion of interest from corporations," recently formed a business-to-business, contingency fee-based litigation practice in partnership with New York's Hanly Conroy Bierstein & Sheridan.

In the past, attorneys note, most business-to-business lawsuits were handled by traditional, full-service law firms that charge by the hour, as well as large defense-oriented firms with strong ties to the business community. Hiring a plaintiffs lawyer, such as a wrongful death or personal injury attorney, was considered taboo.

But that stigma has subsided, they assert, mainly because of two factors: rising legal fees, which have prompted companies to look for less expensive legal options; and tort reform, which has forced plaintiffs attorneys to get more creative with their services.

A good read, and you can find the rest right here.

State AGs weigh in on Med Mal claims and rates

In response to a new study released today by several national consumer organizations titled Falling Claims and Rising Premiums in the Medical Malpractice Insurance Industry, two state
Attorneys General and one state Insurance Commissioner responded with strong
statements condemning the actions by insurers to dramatically raise
insurance rates for doctors while claims are dropping.

"The numbers underscore the need for much tougher, more aggressive oversight
to prevent and punish profiteering," Connecticut Attorney General Richard
Blumenthal said. "Federal and state regulators should thoroughly scrutinize
recent rate increases and take appropriate corrective action. Affordable
medical malpractice insurance is critical to public health. Expensive
insurance rates become a matter of life and death when they drive doctors
out of business - as is happening in Connecticut and nationwide. Insurance
company greed can be hazardous to our health."

"The data in the Annual Statements filed under oath with state insurance
departments, which this Report discloses, call into question much of what
the medical malpractice insurance industry has been saying publicly during
the past several years," said Missouri Attorney General Jay Nixon. "There is
no excuse for malpractice insurers doubling their rates while their claims
payments decrease."

Michigan Office of Financial and Insurance Services Commissioner Linda A.
Watters said, "We are definitely disturbed by the numbers in this report,
which offers evidence that doctors may be paying excessive premiums. In the
market competition study that we recently issued, we considered loss ratios
below 50 percent as patently excessive. If these carriers truly have loss
ratios that are this low and yet they are still increasing rates, one has to
wonder if they're gouging."

Medical malpractice insurance rates for doctors have skyrocketed in recent
years even though, as this study now confirms, claim payments are down.
These findings suggest that doctors have been price-gouged for several years
as insurance industry profits have ballooned to unprecedented levels. AIG,
under investigation by state and federal authorities for its business
practices, and HCI, a subsidiary of HCA, the largest for-profit hospital
chain, are among the worst offenders.

Falling Claims and Rising Premiums in the Medical Malpractice Insurance
Industry's conclusions are based upon an examination, for the first time, of
statements supplied under oath to state insurance departments by the
nation's top medical malpractice insurers. The study reveals that the
insurance industry has been overcharging doctors significantly despite the
fact that their claims payments, in real terms, have dropped since 2000.
Moreover, contrary to the impression they have given the doctors and the
general public, the "losses" that medical malpractice insurers predict they
will pay in the future - the insurers' purported basis for current rate
hikes - are down as well.

Jay Angoff, author of the study, former State of Missouri Insurance
Commissioner and a renowned expert on insurance issues, said, "The leading
malpractice insurers' Annual Statements indicate that they have been raising
their premiums even though both their actual claims payments and their
projected future claims payments have been falling. The Annual Statement
data thus prove that doctors have been overcharged during the last several
years. Those overcharges are obviously bad news for doctors, but they have
resulted in good news for investors in the leading pure malpractice
insurance stocks, which have doubled during the last three years while the
stock market as a whole has remained flat."

Joanne Doroshow, executive director of the Center for Justice & Democracy,
which commissioned the report, stated, "To put it bluntly, if you look at
what the insurance companies say about why they raise premiums, and then
look at the data in this report, the numbers just don't add up. The facts
are very simple: medical malpractice payouts are down yet insurance
companies have significantly increased premiums. This shows that the entire
campaign to limit liability for doctors over the last several years by
capping compensation to injured patients has been a fraud, and that based on
these data, insurers must know that it has been a fraud."

The following companies are examined in the report: Lexington Insurance
Company; GE Medical Protective Company; The Doctors Company; ISMIE Mutual
Insurance Company; Health Care Indemnity, Inc.; Mag Mutual Insurance
Company; Medical Assurance Company; ProMutual Group; First Professional
Insurance Company; State Volunteer Mutual Insurance Company; Norcal Mutual
Insurance Company; ProNational Insurance Company; Continental Casualty
Company; American Physicians Capital, Inc.; and Evanston Insurance Co.

Information from:

For more information and a copy of the study, contact the Center for Justice
& Democracy

Cell phones while driving: As dangerous as a DUI driver?

A study of Australian drivers published this week said the use of any cell phone, hands-free or otherwise, carries a four-fold higher risk of serious accidents.

"There was no safety benefit whatsoever from using a hands-free phone," said Anne McCartt, one of the authors of the Australian study, which was published in the British Medical Journal and paid for by the Insurance Institute for Highway Safety.

The study examined the cell phone records of 744 drivers who had accidents in Perth, Australia, where drivers are required to use hands-free devices. McCart said a similar study is not possible in the United States, as telephone records are not considered public information and accessible, as in Australia.

From various sources, including

Comment: Every day each one of us sees some driver who - to say the least - is "inattentive" while talking on a cell and driving. It's time to introduce legistlation for mandatory hands free devices.

Monday, July 11, 2005

Canada: Vioxx to be prescribed again?

A Canadian health advisory panel says that drug Vioxx should be allowed to go on sale again in the country, 10 months after the company withdrew the blockbuster painkiller over reports that it increased the risk of heart disease.

For more information, go here.

Also, the panel give suggestions as to labels here.

Friday, July 01, 2005

Link to the Vioxx New Jersey Docket

Last month (June) Judge Carol E. Higbee, J.S.C. ordered the case Humeston v. Merck set for jury selection on September 12, 2005. This is the first Vioxx case to be set for trial in the Superior Court of New Jersey under the Vioxx Mass Tort group of cases.

You can go here to find information on the New Jersey Docket. First case up for trial is the Humeston case.

My office currently has cases pending before Judge Higbee.