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."

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.

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.

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.

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.

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.

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.

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.

Did A Drug Company Hide Suicide Link?

From England, this news: GlaxoSmithKline (GSK) attempted to show that the drug Seroxat worked for depressed children despite failed clinical trials.

From last week, you may recall reading on this blog the issues that arise when drugmakers pay or influence medical journals regarding studies or trials of pharma meds.

In this instance, there are claims that GSK-employed ghostwriters influenced "independent" academics.

One email that has surfaced is from a public relations executive working for GSK which said: "Originally we had planned to do extensive media relations surrounding this study until we actually viewed the results ... but essentially the study did not really show it was effective in treating adolescent depression, which is not something we want to publicize."

Go here for the full BBC News report.

You could just imagine the shock -- shock I tell you -- whenI read the GSK comment that "GSK utterly rejects any suggestion that it has improperly withheld drug trial information."

$1.5M Jury Verdict in Prempro (HRT) Trial

From late in the day yesterday, a state court jury in Philly found Wyeth's hormone replacement therapy drug known as Prempro responsible for a woman's breast cancer. The verdict mandates that Wyeth pay $1.5 million in compensatory damages. The verdict breakdown: $1M for the woman, $500K for the spouse.

The jury also gets to whack Wyeth with a punitive damages award as well. The punitive damages phase begins this week.

There are nearly 5,000 pending cases, to be quite candid a manageable number of suits for Wyeth.

For more, go here.

Drug Rep Toys Given to Doctors

Interestingly enough, a blog that details the stuff given away. Drug Rep Toys breaks down the goodies, including a maglite.

The profile notes: "If you've gotten something fun or egregious from a drug rep, send me a pic and I'll post it."

The blogger seems to get crappy pens.

Amgen: Bad News Regarding its Anemia Drug

The drug is known as Aranesp. According to recent news from a drug trial, there is an increased risk of death in cancer patients who are not on chemotherapy when taking it.

Aranesp is already approved for use in cancer patients who suffer anemia as a result of their chemotherapy. Amgen wanted to extend this indication to include patients who have anemia from the cancer itself.

Aranesp was already being used off-label for these non-chemotherapy cancer patients. Source here. Another report noted that certain patients in the trial already had "an especially dire prognosis." Source here.

Lucentis (For Macular Degeneration): Increases Stroke Risk

Genentech Inc. alerted eye doctors late last week to the risk of stroke from Lucentis. The drug is used to treat age related macular degeneration. According to AHAF, Age-related macular degeneration (AMD) is a common eye disease that causes deterioration of the macula, the central area of the retina, the paper-thin tissue at the back of the eye where light-sensitive cells send visual signals to the brain.

The company will probably change the drug label soon.

Kugel Mesh Patch Recall

An updated and expanded recall on the Kugel/Bard Mesh Patch.

Products included in the expanded recall are: Bard® Composix® Kugel® Large Sized Patch Class I Recall and Market Withdrawal;Product Code: 0010202, Bard® Composix® Kugel® Large Oval, 5.4” x 7.0”; andProduct Code: 0010204, Bard® Composix® Kugel® Large Circle, 4.5.”

Back in March the first recall was ordered. “The 'memory recoil ring' that opens the Composix Kugel Mesh Hernia Patch can break under the stress of placement of the large sized products in the intra-abdominal space. This can lead to bowel perforations and/or chronic intestinal fistulae (abnormal connections or passageways between the intestines and other organs).

Georgia's Litigation Crisis

Yes there is one. State Supreme Court Justice Sears gave her assessment of the Court speech to the Georgia Legislature.

Sorry to disappoint you, but it's not one that has injury cases clogging the system. Divorce cases make up 65% of all civil cases filed in the Georgia State Courts.

More later.

Bring Your Client to Deposition of Difficult Doctor

Spent time going over Dave Swanner's must read blog, sctriallaw.com since my office is undergoing a bit of change and filing more lawsuits. Dave in turn thanked Rodney Pillsbury for suggestions this:

Bring your client to the deposition of a treating physician you think might say negative things about your client. It is much more difficult for a person to that someone is not telling the truth and malingering if that someone is sitting in the room watching. Go here for the link.

One little kernel of advice that I'm using this month when a doctor is deposed, and one I had not heard of in a while.

Pifzer Lawyer: Off Label Marketing Should Be Allowed

Yes you read that right. One lawyer at Pfizer publicly endorsed the right of drug companies to practice off-label marketing under certain conditions.

Arnold Friede is a senior attorney at Pfizer. He has allegedly said that drug companies should be able to advertise unapproved drug uses provided that the info is "truthful and not misleading," and published in a medical journal. He made these comments at a law conference in NYC.

Of course, the FDA prohibits off-label marketing as (how they say down here in the South) "e-legal" or against federal law.

Pifzer itself has paid millions of dollars to settle off label marketing allegation investigations. In his speech at the conference, Friede said, "Peer reviewed journals would be eligible for . . . free speech protection" under a court ruling in which the WLF had sued the FDA. (source here).

What a surprise. In an era where published journals are coming under intense scrutiny for the method in which studies are published, in an era when there are allegations that drug companies are paying the authors to skew results in favor of a certain drug, ("Medical literature contains many articles expressing concern about industrial funding of clinical research") this attorney
apparently would have companies step around the FDA prohibitions?

We must be on guard, and never allow this to happen. The FDA in my view is gross underfunded. Big Pharma wields tremendous influence within the halls of Congress, outspends the FDA by a vast number when compared to the FDA's yearly budget on enforcement, and spends untold millions on industry funded clinical research. The entire process from initial studies to drug roll out needs a complete overhaul, not an end around it, as this attorney seems to suggest.

At Legal Underground: Advanced Depo. Techniques Podcast

Good stuff, and less than fifteen minutes of listening time. Go here to read/listen. Legal Underground.Tips for asserting control at a deposition is the topic, and it is worth the listen.

From The Trial Lawyer Blog

Settlement Agreements and good advice on how to draft confidentiality provisions:

In the recent case Amos v. Commissioner of Internal Revenue, the United States Tax Court stated that "if a settlement agreement lacks express language stating what the amount paid pursuant to that agreement was to settle, the intent of the payor is critical to that determination." 2003 WL 2289795 (U.S. Tax Ct, 2003). As most personal injury attorney's understand, the correct "intent" is very important to memorialize in your settlement documents because IRC §104 (a) (2) provides that "gross income does not include the amount of any damages (other than punitive damages) received (weather by suit or agreement and whether as lump sum or as periodic payments) on account of personal physical injuries or physical sickness."

In Amos, the Court found that the dominant reason that the Defendant, Dennis Rodman, paid plaintiff the settlement amount at issue was to compensate petitioner for his alleged physical injuries arising from an incident involving the two individuals (Dennis Rodman allegedly lost his cool and had an altercation with Amos while Amos was photographing a Bulls Basketball game). However, the Court also found that the settlement was in consideration for several other requirements (mainly a confidentiality agreement). Since the settlement agreement identified those "other requirements" as consideration for the settlement proceeds, the Court determined that the parties did not intend all of the settlement proceeds to be allocated to the component for payment on account of personal physical injuries. As a result, the Court allocated 80% of the settlement as paid in consideration for the other requirements stipulated in the Settlement Agreement. The Court's allocation resulted in 20% of the settlement proceeds being (for non-physical injuries) included in Plaintiff's gross income and not exempt from IRC §61 (the general taxing statute).

For more, go here, and thanks to Matt Garretson.

Anti-Depressants: Older Adults Risk Fragile Bones?

Older adults who take certain anti-depressant drugs may have an increased risk of developing fragile bones.

Tests on a group of Canadians aged 50 or older found those taking selective serotonin reuptake inhibitors (SSRI) had 4 percent less bone mineral density in their hip bones.

At least one doctor says it may make sense to have mineral density test before going on an SSRI, especially if the patient has had a low-impact bone fracture.

For more, go to this source, here.

Vioxx: Philadelphia Plaintiff Drops Pending Case

With a trial date set for five weeks from now, a Plaintiff in a pending state action has dismissed her claim with prejudice.

As of Sept 2006, more than 3,000 alleged Vioxx users have been dismissed before being scheduled for trial, including more than 1,100 dismissed with prejudice.

For more, go here.

Vioxx Trial Starts This Week (Hermans)

Today in Atlantic City, New Jersey Judge Higbee will hear the Hermans case. This Vioxx case involved Brian Hermans died in 2002 after taking Vioxx for 19 months. The lawyer representing Hermans is Mark Lanier, who as many know won the first Vioxx case that went to trial in Texas.

The Humeston case gets retried as well. Chris Seeger is the Plaintiff's attorney.

For more, go here.

Prempro: Trial #3 Starts Today

Today jury selection starts in an Arkansas Court on the third Prempro case to reach a jury. Helene Rush, of Little Rock, Arkansas is the Plaintiff. Wyeth is 1-1 in the first two cases which went to verdict.

Rush sued the company in 2005 after taking Prempro for nine years and developing breast cancer in 1999. There is a gag order in place in Rush's case.

In a pretrial filing in the Rush case, Wyeth attorneys pointed out that one episode of ABC's "Grey's Anatomy" featured a plot line that involved a man who was taking estrogen while undergoing a sex change. The male character in the show learned he had developed breast cancer and was told that continuing estrogen therapy in order to remain a woman came at the cost of dying of breast cancer.

A $100 Million Dollar Ad Campaign

No, not by an attorney. Who knew we all need defibrillators? They do have value, but take a get ready pill for the sheer volume of ads about to commence.

"Medical technology giant Medtronic Inc. will launch a $100 million marketing campaign today to raise awareness about the dangers of sudden cardiac arrest -- and the role of heart defibrillators in saving lives." Source here.

Aspirin: The All Purpose MVP?

Men who take a low dose of aspirin every other day may cut their risk of asthma, researchers said. Source here.

A new analysis of a key study from the 1980s that showed aspirin prevented almost half of first heart attacks found it has a similar, though less potent, impact on asthma. Aspirin users were 22 percent less likely to develop the lung condition in the Physician's Health study than those taking a placebo.

``The study suggests that people who are taking aspirin and don't have asthma, it may be preventing asthma,'' said Tobias Kurth, an assistant professor of medicine at Harvard Medical School.

I've been taking low dose aspirin for several years now. I also exercise regularly, and during the winter months have notices that symptoms suggesting exercise-induced asthma have not been as pronounced since taking aspirin. Either that or my running is much slower now. Maybe a little of both.

The All Pharma Cheerleading Squad

From edrugsearchcom, I stumbled across this ...

A while back the New York Times wrote a story about the decision by several pharmaceutical companies and others in the medical industry to hire reps who market drugs or medical services to physicians based not on medical knowledge — but purely (and cynically) on sex appeal. There have been legendary stories about doctors who may have believed a sales pitch to be an invitation for more. It's known that in several instances cheerleaders - literally - were hired to pitch drugs or medical services.

So, at eDrugSearch you can find information as well as pics of these ... reps. There are at least sixteen. "Carla" is here in my hometown:


Here bio is right here.

The eDrugSearch site also refers to the NYT article, and you can find that here.

For MLK, Jr. Day: A Book Worth Reading

My view of Dr. King and the civil rights movement was profoundly changed after reading Parting the Waters. It's more than just a biography of the Rev. Martin Luther King Jr.

Taylor Branch's thousand-page effort won the Pulitzer Prize as well as the National Book Critics Circle Award for General Nonfiction. As aptly noted in one review of the book, it "profiles the key players and events that helped shape the American social landscape following World War II but before the civil-rights movement of the 1960s reached its climax. The author then goes a step further, endeavoring to explain how the struggles evolved as they did by probing the influences of the main actors while discussing the manner in which events conspired to create fertile ground for change."

To have any substantial sense of the civil rights era, this book is a must read.

Vioxx: NJ State Court Judge Rules

Judge Carol Higbee cut down the number from four to two in Atlantic City, where opening arguments at the trial are set for January 22, 2007. Merck has been seeking to try each case individually rather than in a group.

Jurors at the next trial will hear the case that was already tried, Frederick Humeston. He survived a heart attack in 2001 after taking 56 Vioxx pills.

Attorney Mark Lanier will try the next Plaintiff's case for Kathleen Hermans Messerschmidt, whose brother, Brian Hermans, died of a heart attack in 2002 after taking Vioxx for almost seven months.

For more, go here.

Spell Check

I'm one who on this blog from time to time may not catch a word correctly spelled, but this snapshot taken from a news broadcast shows how important it is to make sure that what you send out for public consumption is correct.

The shot is from a news broadcast in Birmingham, Alabama.

Duration Calculation Results

I'm on the road a lot, and invariably while away from the office a FAX or email requesting action by a date certain will be received.

While most computer programs take care of date calculation, a handy site on the web may be found at timeanddate.com

Go here for the page within that site that allows you to calculate duration.

End of Premarin (HRT) Usage = Horse Slaughter

With few rdoctors prescribing Premarin or Prempro, Wyeth Pharmaceuticals, has shut down most of its horse ranches where 17,500 mares and their foals that are no longer needed for the production of the hormone used in the drug. The veil has been lifted on how Wyeth made the drugs.

In the past a ranch would be set up and pregnant mares' urine, or PMU, would be kept continually pregnant and tethered to a collection cup so that her estrogen-rich urine could be used to make the drug prescribed to treat menopause symptoms.

The mare's foals — bred in the field with little medical attention — are often sold by the pound and slaughtered for their meat.

For more go here. You can learn how to adopt a horse being discarded, go here and here.

Lilly to Settle More Zyprexa Lawsuits

Eli Lilly and Co. said Thursday it will settle about 18,000 additional lawsuits alleging the drugmaker did not adequately warn patients that its anti-psychotic medication Zyprexa carries a heightened risk of diabetes.

For more, go here.

College Football: Gators Win National Championship

Light posting until now, as I had a chance to see my school's football team win a National Championship.


More later.

Parkinson's drugs linked to heart damage

Patients taking the drugs pergolide, developed by Eli Lilly and sold under the brand name Permax, and cabergoline, developed by Pfizer and sold under the brand Dostinex, had a sharply higher risk of heart valve damage than those taking other therapies, according to a recently released set of studies.

The studies, included one that analyzed stats of 11,417 patients in Britain and one of which tested 245 patients in Italy, reinforce the results of smaller studies showing drugs that activate a cellular receptor known as 5-HT2b can cause damage to the heart valve, a serious condition that can lead to heart failure and sudden death.

The British study showed patients taking pergolide were 7.1 times more likely to develop heart valve damage than those who took other treatments. Patients taking the highest doses of the drug had a 37 times greater risk.

For more, go all over the web here.

2007: What's On Your List?

I wrote about resolutions at the end of 2006. I appreciate that many do not commit to making any, but I do. A few on my list, in addition to the the ones posted earlier:

Use Speak Write, a dictation system found on the web at the link. I have already used it this year - sign up for an account, and you use your phone to dictate. It arrives in your email box as an attachment, and only costs 1.5 cents per word. I tend to dictate a bit rapidly, and in 2006 staffers would complain quite a bit. Yesterday's first try with Speak Write was nearly perfect, it arrived in about twenty minutes, and there were no staff complaints.

Wireless card for my laptop - seems like a no brainer, but until yesterday I never committed. Now I wonder how I lived without it. While my office is in Atlanta, I drive to meet clients in the hinterlands where terms like WiFi and coffeehouses with the net do not exist as of yet (Ever been to Douglas, GA?).

There are several more I will be posting about as the day and week moves on. Will you share your resolutions? I'm happy to post them here. You can email me at zamoralawoffices@yahoo.com

Season's Greetings 2006

Posting will be very light the rest of the month. The pic above is from one of my favorite towns out west, Crested Butte.

While you work away these next few days, check out streaming music from Mardi Gras Radio.

2007 Resolutions

I know that many people do not make them or keep them. I do. If you are a person who at least tries to come up with a list, I've stumbled across a few posted on blogs out there.

Matt Homan has a number of posts regarding resolutions.

A few around my office are simple in idea but may prove difficult in practice: Move to PDF images of all frequently reviewed documents in a client's file. Accident Reports, for example. In a client directory that should be one of the 'must haves' on a server.

I also resolve to use an online medical records acquisition like Mediconnect on a test basis. One attorney in town swears by it.

More later

Zyprexa: Did Drugmaker Hide Risks?

The NYT reports that drugmaker Eli Lilly may have tried to play down the health risks of schizophrenia drug Zyprexa.

The NYT referred to hundreds of internal documents and e-mail messages circulated by employee. The NYT article says that Lilly executives allegedly withheld important information from doctors about Zyprexa's links to obesity and elevated blood sugar, risk factors for diabetes.

The drug company's own published data (according to the Times) showed that nearly thirty percent of patients taking Zyprexa gain more than twenty pounds or more after a year on the drug. Some gained more than 100 pounds.

The documents show Lilly's concern that Zyprexa sales would suffer if the company
was more candid about the drug's risk of causing unmanageable weight gain or diabetes. As expected the company disputes the claims. Lilly through reps said that there is no scientific evidence establishing that Zyprexa causes diabetes.

In an internal document, Lilly employees discussed that the drug was associated with weight gain and possible hyperglycemia, and this would be a threat to the long-term success of the drug. The date of the document was 1999.

The documents were apparently given to the NYT by James Gottstein, a lawyer representing mentally ill patients who is suing the state of Alaska over its efforts to force patients to take psychiatric medicines against their will.

Source - NYT.

CLE Conferences

This idea stolen from Idea Surplus Disorder Blog:

Know Your Questions. Seek Your Answers. Never attend a conference without at least three questions you want answered. Never leave until they have been.

I try to have a defined set of areas covered. My biggest gripe when it comes to attorney conferences? I go to hear one person in particular and when I turn to that person's materials ... nothing. When that person speaks, it's half ad libbed and mostly war stories. Two speakers were guilty of this at a recent conference.

The best set of materials at a conference I attended came typed, double spaced, and full of legal citations. The author? An attorney who has been practicing law for less than five years.

Drug Coated Stents: Risk or No?

Drug-coated stents that prop open the arteries of about 3 million people in the U.S. don't increase the risk of heart attack or death when used as labeled but may put patients at risk for blood clots, says the FDA.

In an earth shaking development, Johnson & Johnson - a stent maker - said there is no significant difference in clotting, heart attack or death rates between its stent, the Cypher, and bare metal versions.

You can read more here.

Ketek (Antibiotic): Facing the Music before the FDA

The FDA first approved Ketek in April 2004 for the treatment of pneumonia, sinusitis and bronchitis. Not long after that, the Public Citizen Health Research Group, added the antibiotic to its list of "do not use" drugs. Public Citizen cited reports of liver toxicity, serious vision problems and the possibility of heart rhythm disturbances.

Later this week (Thursday and Friday) the FDA convenes a joint meeting of its Anti-Infective Drugs and its Drug Safety and Risk Management advisory committees to discuss what it calls Ketek's overall benefit-to-risk considerations. See FDA information here.

I think that the FDA will order the drug maker to strenghthen its warnings regarding the drug.

Canada has issued a warning regarding this drug:

Health Canada is advising Canadians about a possible link between use of the antibiotic Ketek and potentially serious liver problems.

There have been international reports of patients using Ketek who experienced liver failure requiring transplant or resulting in death, although no such cases have been reported in Canada. Ketek (the brand name for telithromycin), which has been marketed in Canada since May 2003, is indicated for the treatment of pneumonia, throat and sinus infections and chronic bronchitis, as well as serious or multi-drug resistant infections.

Buy This CD - New Orleans Christmas

I love New Orleans. This year, you can buy a CD with great Christmas music recorded by Big Easy musicians, and a portion of the proceeds go to the Habitat for Humanity Musicians' Village in that city.

New Orleans Christmas, which you can find on Amazon.

You can hear snippets online here.

Much better than those retreads you hear on the radio or Sirius, you will find superb Christmas tunes. Papa Don Vappie, The Dukes of Dixieland, Banu Gibson, and Topsy Chapman provide the auditory feast.

A comment on the web somewhere is apt: "The music is upbeat and will put a smile on the face of the most jaded Scrooge in the group."

Buy it!

Iraq Study Group: Comprised of Lawyers

Interesting to read the background of the esteemed members of this Iraq Study Group. 8 of the 10 are attorneys. Co Chairs are attorneys.

You can read the text of the press conference here.

"Lawyers" in general are an easy target of politicians, talking heads, and the populace. Until you need one.

Fen Phen News: PPH Suits Filed

In Philly, suits were filed this week. Renee Tedesco is one plaintiff. She was diagnosed with primary pulmonary hypertension in April of 2007, eight years after she stopped taking Fen Phen. Last month, Tedesco underwent a nine-hour double lung transplant.

Tedesco's lawyer is Alex H. MacDonald. He said he expects Wyeth to argue that fen-phen would not cause severe complications to surface years after the women stopped taking the pills.

Alex MacDonald's first PPH case was extensively detailed in a book by Alicia Mundy title, Dispensing with the Truth, a compelling read regarding the battle over fen phen. I am pretty certain that a read of it will make you angry.

Alex told me that Diane Keaton had purchased the rights to that book, but to date the film adaptation has not gone into production. I had to laugh when he said that he feared the movie the most, because he would point to the screen and say to his kids, "You see that gal up there, that's me!"

For more on the lawsuits, go here.

Trasylol Information

Angel Reyes has an office in Dallas, Texas, and he recently ran a Trasylol ad.


Bayer has informed the FDA that it had carried out an additional safety study of Trasylol. The preliminary findings from this new observational study of patients from a hospital database reported that use of Trasylol might increase the chance for death, serious kidney damage, congestive heart failure and strokes.

While the FDA conducts its assessment of this new safety study, it is recommended that physicians consider limiting Trasylol use to those situations where the clinical benefit of reduced blood loss is essential to medical management and outweighs the potential risks. Doctors should carefully observe patients for the occurrence of toxicity, particularly to the kidneys, heart, or brain.

Trasylol (Generic: Aprotinin), Bayer's injectable drug used to prevent excessive blood loss during heart surgery, doubles the risk of kidney failure and stroke and increases the risk of heart failure or heart attack by 55%. It is also linked with encephalopathy (degenerative brain diseases). Researchers announced their findings on January 25, 2006 and the study results were published in the New England Journal of Medicine. The study examined 4,374 heart bypass surgery patients at hospitals around the world.


You can see it below:

Southern Trial Lawyers Yearly Mtg: NOLA 2/15-17

The STLA meets again in New Orleans, and let me tell you it will be a good time. Just about 60 days away (almost), and yours truly speaks this year. Topic is Working with the Competition.

It's a pretty fun seminar, informative as well. The muckety mucks have decided that 15 minute presentations are the way to go, and I agree. Also, two hours for lunch! You can linger over at the Palace Cafe on Canal. I have one drink at lunch once a year - at the Palace Cafe during the STLA seminar.



You can find more about it by going here:

http://www.southerntriallawyers.com/html/upcoming_events.html

Google Docs/Spreadsheets

Definitely worth a look. You can cut and past documents and spreadsheets into Google Docs, and edit on the fly. Free!

FDA: Gov't Researcher Faces Charges For Taking $$$ from

A U.S. scientist who has spent time researching Alzheimer's was charged with conflict of interest for accepting $285,000 from drug maker Pfizer Inc. He is being criminally charged.

Pearson Sunderland is the chief of the geriatric psychology branch at the National Institute of Mental Health (NIMH). He faces up to a year in prison and a fine of $100,000 if convicted, prosecutor Rod Rosenstein announced.

Prosecutors said Sunderland, 55, of Chevy Chase, Maryland, accepted the $285,000 in consulting fees and travel expenses from Pfizer without getting required approval from NIH or disclosing the fees to the agency.

Is he the only one? Does any rational person think the FDA is truly independent? That companies do not wield much influence within the walls of the FDA buildings?

Source here.

Southern Football: Video from Gators-Arky Game

Southern Football is really something you need to see live and in person once in your life. As the Gators get ready to play in the National Championship game on 1/8/07, the fun from this past weekend's SEC Championship Game still rings in my ears.

As Florida was in the locker room at halftime of that game, the crowd heard the USC-UCLA score (UCLA pulled the upset). Below is a scene from a men's bathroom - a bathroom with a TV showing the feed of the USC-UCLA game. I was watching the game while sitting in the stands in Atlanta. I borrowed a pair of binoculars and spied the game in a suite.

So here you go (only 27 seconds). Are college football fans in the south nuts? The Gators won of course in a heart pounding way:




I hope some of those guys washed their hands before high fiving others

Paxil News - Pregnant Women Warned About Drug's Side Effects

Ostetricians are recommending that women avoid the antidepressant Paxil if they are pregnant or planning on becoming pregnant, due to a potential heightened risk for birth defects.

The American College of Obstetricians and Gynecologists (ACOG) also cautioned that treatment with other antidepressants should be considered on a case-by-case basis.

ACOG's Committee on Obstetric Practice "recommends that treatment with all SSRIs [selective serotonin reuptake inhibitors] or selective norepinephrine reuptake inhibitors or both during pregnancy be individualized and paroxetine [Paxil] use among pregnant women or women planning to become pregnant be avoided, if possible," read the statement, which is in the December issue of Obstetrics & Gynecology.

In 2005 the FDA issued a warning about possible birth defects associated with Paxil when the drug is taken during the first trimester of pregnancy. In December of 2005, the FDA told GlaxoSmithKline to reclassify the drug from a Category C to D (a stronger warning) for pregnant women. Category D means studies in pregnant women have demonstrated a risk to the fetus.

SSRIs, the category of antidepressants which includes Paxil as well as Celexa, Prozac and Zoloft, may cause newborns to have withdrawal symptoms.

The FDA site has more, here.

Katrina II: Judge Slams Bush Admin, Orders Resumption of Payments

The Bush administration must resume housing payments for thousands of people displaced by Hurricane Katrina.

U.S. District Judge Richard J. Leon's ripped the Federal Emergency Management Agency for illegally cutting housing funding and subjecting storm victims to a convoluted application process he called "Kafkaesque."

In the Washington case, Leon said FEMA mishandled the transition from a short-term housing program to a longer-term program this spring and summer.

Until FEMA explains itself and allows victims to appeal, Leon said the government must keep making housing payments.

"It is unfortunate, if not incredible, that FEMA and its counsel could not devise a sufficient notice system to spare these beleaguered evacuees the added burden of federal litigation to vindicate their constitutional rights," Leon wrote in his ruling.

You can find the Memorandum Opinion here.

Katrina News: USDCT Judge Rules Against Insurers

A U.S. federal judge denied Motions to Dismiss claims based on the water damage caused by a canal levee breach. After reading the 85 page opinion, news reports appear to have incorrectly concluded that the Judge "ruled that insurance companies should pay for widespread water damage that ensued in the wake of Katrina."

Judge Stanwood Duval's ruling does put insurers at risk to pay more than the $41 billion they have already paid to storm victims.

Judge Duval's decision centered on the distinction between flooding caused by high winds and heavy rains and flooding caused by human error. Much of the destruction in New Orleans in the wake of Hurricane Katrina in August 2005 was a result of levee failures.

He said the language in the insurance policies on flood coverage was ambiguous because it did not "clearly exclude man-made" flood disasters. Because the insurers had provided the wording for the policies, he said he felt "constrained to interpret it against the insurers." Most of the arguments set forth by the Plaintiffs suggest that 'water intrusion' is different than flooding. The court did an exemplary job of wading through the many definitions of the term "flood," including one that refers to rising and overflowing as opposed to exiting through a breach.

For more go here.

The 85 page PDF ruling can be found here.

The E.D. of LA Court page can be found here.

Idiot Congressman Calls Miami A "3rd World Country"

Republican Congressman Tom Tancredo a so called "leader" of the anti-illegal immigration faction in the U.S. House, spent a recent weekend at The Breakers in Palm Beach. In case you are not familiar with the Breakers, it is perhaps one of the finest old line AAA Five Diamond Hotels in the United States. It is truly a magnificent palatial resort:





Of course, why a politician whose salary is paid for by taxpaying folks like me is staying at a Resort like that is the subject of another blog entry BUT he had this to say about Miami:

Miami, he told a conservative online news site, ``has become a Third World country.'' Source.

''Look at what has happened to Miami,'' the WorldNetDaily quotes Tancredo as saying in an interview. ``It has become a Third World country. You just pick it up and take it and move it someplace. You would never know you're in the United States of America. You would certainly say you're in a Third World country.''

There is no objective definition of Third World or "Third World country" but the use of the term remains common. The term Third World is also disliked as it may imply the false notion that those countries are not a part of the global economic system, according to Wiki.

Tancredo is too dumb to realize that the French demographer Alfred Sauvy coined the expression ("tiers monde" in French) in 1952 by analogy with the "third estate," the commoners of France before and during the French Revolution-as opposed to priests and nobles, comprising the first and second estates respectively. Like the third estate, wrote Sauvy, the third world is nothing, and it "wants to be something." The term therefore implies that the third world is exploited, marked by poverty and high birth rates. The third estate is marked by shantytowns with pockets of rich elite.

The remarks drew an instant rebuke from Miami Republican Rep. Ileana Ros-Lehtinen, who called Tancredo ''flat out wrong'' and extended an invitation for him to come and judge the city for himself.

Tancredo didn't visit Miami on his trip. Nice of him to trash the city without visiting it, eh?

Nevermind that Miami is home to many thousands of Cubans who arrived in the United States legally. Or that the GOP has a near stranglehold on Cuban votes and most hispanic voters there. Or that Miami is no different than NYC in the 40s and 50s, with enclaves like Little Italy. Tom should know about NYC, since he is the grandson of Italian immigrants who, like Cubans, settled in ethnic enclaves across the United States.


Make no mistake: Trancedo is a rascist.He has received thousands of dollars from individuals linked to white supremacy (Link). He has insulted generations of Hisnapic immigrants who are the stalwarts of the Miami economy. I will take a wild guess that he has never been to Marrakech or Kabul. Open sewers, rampant and unchecked disease.

I was raised in South Florida. While certainly there are many hispanics, you are just as likely to hear German, Italian, and French at shops and on the beach. I challenge him to take a trip to the Miami area and see where the conditions are rough. You know what you will find? Poor whites. Members of many minorities living day to day. But, had he done his research, he would know that. He'd know that the area around the Orange Bowl - a dump of a stadium - is in poor shape, and is according to several census sites, majority white.

That's not enough for this POS ... Tommy goes on to say: "While a recent documentary comparison of Miami-Dade County to Baghdad was a bit of an overstatement no one can argue that it is not one of America's most dangerous areas." Well Tom, not quite ... according to this site, Safest and Most Dangerous U.S. Cities, 2005. D.C. - Tom's 2nd hometown - is there. Miami is not in the Top 25, but Baltimore is. Tom, your rascist notions are wrong. This guy votes on balancing a budget?

But hey, Tommy knows that a Third World Country like Miami has hosted a Super Bowl, has the reigning NBA Champs, hosts international banking, and has one of the USA's busiest ports. Or that those living below the poverty line in Miami-Dade total 18% compared to 15% in Denver.

Tommy boy, if you want to run for President you just crapped on a big segment of your voters. At the conservative seminar/vaction you attended apparently there was no discussion of hispanics deserting the GOP in droves this past election because of spliiter issues like immigration. Your hate rhetoric won't fly - Comprende?

New Blog: Science and Technical Evidence & News

Worth a look: Science Evidence.

According to the site:

Science Evidence is devoted to the latest news in scientific evidence in United States courts and news relevant to litigation, including case reports and scientific research articles that bear on legal issues.

Cliff Hutchinson is an engineer, registered patent attorney, and trial lawyer, with over 26 years experience in litigation in state and federal courts and before arbitral tribunals. His practice focuses on complex commercial litigation involving technical issues, such as intellectual property disputes, toxic torts, oil and gas, and contract disputes in other technology industries. He has litigated in trial courts in numerous states and has appeared before state appellate courts and before federal circuit courts in the First and Fifth Circuits and the United States Supreme Court.

FDA Issues Methadone Warning

People treating with methadone have died or suffered life-threatening side effects according to the FDA.

Overdoses of the increasingly popular narcotic can cause slow or shallow breathing and dangerous changes in heartbeat that patients might not feel.

In 2003, methadone was listed as a cause of 2,452 unintentional poisoning deaths in the United States, up from 623 in 1999, according to the National Center for Health Statistics.

According to most reports, prescribing methadone is complex. Methadone should only be prescribed for patients with moderate to severe pain when their pain is not improved with other non-narcotic pain relievers.

For more go here. You can find the FDA Advisory here.

Merck's Arcoxia (Cox 2 ) Facing Hurdles

Merck has reported that Arcoxia - a not yet approved drug - had the same cardiovascular risks as diclofenac according to studies involving more than 30,000 arthritis patients.

Diclofenac is a nonsteroidal anti-inflammatory drug, or NSAID, the same class that includes naproxen and ibuprofen.

The fuss over Arcoxia started months ago, before Merck released the results of the study known as MEDAL. Critics hammered Merck, suggesting that the company should not have used diclofenac in the studay as it may have a higher cardiovascular risk than naproxen.

You can read more by going here.

Thanks - A Georgia Lawyer Blog's #1 Most Popular

This week, at least. Just goes to show if you look long enough, somewhere a law blog search engine may put your blog at the top.

Justia's Blawg Search is making a run to become the de facto search engine for law blogs, and this week in the section for Injury and Accident Law Blawgs somehow this one made it to the top. At least for now, and this week. That, and $5 will buy you a Venti-Over-The-Top Coffee at a certain coffee house.


I like the ease of use of the site as well as the new format over at Blawg.

Georgia's Former Governor Launches Consumer Site

Pretty impressive. Governor Roy Barnes of Georgia who also happens to be a Plaintiff's lawyer has a new website, myconsumerrights.com.

The site went online last week, and more importantly garnered news that many can only hope for, in that the Atlanta Journal Constitution ran a page one Metro section story on it.

According to the report, the site provides information on everything from credit cards and auto accidents to predatory lending and financing a car. The paper also noted that you can click on the "Ask Roy" link to go directly to Barnes' e-mail address.

You can't buy advertising like that. It's a site worth a look.

Actiq (Cancer Drug): Rampant Off Label Use?

According to the CT A.G.'s Office, Cephalon may have been a little too aggressive in trying to expand sales of Actiq. Actiq is a lollipop-administered drug approved only to treat cancer pain.

According to reports, doctors ranging from neurologists to anesthesiologists have prescribed the drug for a range of pain conditions including migraines.

What is notable is this comment in an article found online: The use of Actiq for cancer patients may be less than 20 percent of total sales, and many of the sales are based on prescriptions from anesthesiologists, rehabilitation specialists and others. Source here.

Vioxx Class Action Cert. Denied: The Right Decision

The federal judge overseeing the lawsuits filed against Merck & Co. over Vioxx
has ruled that the cases cannot be compiled into a class-action suit.

Judge Fallon ruled the cases had unique injuries and many different ingestion periods and should not be combined.

For more go here.

It's the right decision. With so many different types of claimed injuries, together with different dosages and length of ingestion, this should come as no surprise to anyone other than the attorneys that sought class action status.

A New Law Blog Search Engine

Justia has up and running a "Blawg Search" site which you can find here.

There are 844 Blawgs in 45 categories according to the site, with more being added each day. Eyeing the catergoies it looks like Intellectual Property Law has the most blogs within it(80), with Law Professors (71) and Tech (59) 2nd and 3rd. Blawg.org lists nearly 1500.

To pick a nit, it looks like there is are separate categories for "Carolina" and "South" which probably means South Carolina, which probably means Dave Swanner's site. Alas, his site is not in the section titled "Injury and Accident Law" where it should be. Let's see how long it takes to fix that.

EPO -The Scourge of Cycling- Linked to Heart Risks?

An anti-anemia drug used by chronic kidney disease sufferers may pose health problems accordnig to a recent study. You can find the abstract of the study in the NEJM.

Scientists found aggressive efforts to boost red blood cell production with erythropoietin (EPO) may increase the risk of heart failure in one study and could increase the need for dialysis according to another study.

EPO is sold under the names Eprex, NeoRecormon, and Aranesp. It is an artificial hormone that allows the blood to carry more oxygen, thus boosting endurance. It has been favored by endurance athletes and has saturated such sports as professional cycling and cross-country skiing.

First introduced into the world of cycling in the late 1980s, EPO gained notoriety during the 1998 Tour de France. Beginning with EPO and other doping drugs discovered by border police in the car of a masseuse for one of the cycling teams, the scandal progressed to riders being detained and questioned, with several admitting to taking doping drugs.

Now, the Harvard Medical School said patients who were treated aggressively were nearly 50% more likely to experience heart problems than patients in the low-hemoglobin group. Harvard's Medical School also published a report on EPO and blood doping.

For more information, go here.

Aspirin: Good News

I actually look for good news regarding pharmaceuticals and meds, and here is a bit of news that may help:

An aspirin a day may help keep head and neck cancers away, a new long-term study suggests. What is key is not the amount of aspirin ingested but the length of time that people were taking it that mattered.

According to the study, taking aspirin for under 10 years did not have a significant effect, [but] taking it 10 years or more was associated with a 30 percent reduction in cancer.

You can find the results in the study in the easy to find Archives of Otolaryngology.

The study involved 529 patients with head and neck cancer and another 529 without the malignancy. Participants were matched for age, sex and smoking status. They were also asked about their use of aspirin over the preceding decades.

Anyone who wants to take aspirin as a cancer preventive should first consult their physician. You should always talk to a physician before taking anything chronically.

Military Jets Buzz The Swamp

Not law related, but worth a look. I attended the Gators game versus South
Carolina. At halftime two jets flew over the stadium, at no more than 1000 feet.
Catch them streaking across the stadium right at the 25 second mark.

I think 90,000 people soiled themselves.

Big Pharma Courting Dems

From MSNBC:

After spending $10 million on G.O.P. incumbent candidates ahead of this year's mid-term elections, with Democrats getting about $4.5 million, Big Pharma can expect a somewhat hostile reception on Capitol Hill after the Democrats begin running the show in 2007.

GOP Billy Tauzin left Congress in 2005 to work as a lobbyist for PhRMA.
Soon-to-be Speaker Nancy Pelosi, said Tauzin sold seniors down the river for two million dollars, the sum Tauzin was reportedly paid to join the association he runs.

A PhRMA rep now says, "There will be a renewed emphasis on making new friends and reaching out to Democrats, and especially pro-business Democrats." Source here.

My prediction: A waterfall of money will change the minds of key Dems. No surprise there.

Hemophilia Drug Causing Problems in Vets?

There are reports that a blood-coagulating drug used primarily to treat rare forms of hemophilia has been used on wounded American troops in Iraq, even though it can cause clots that lead to heart attacks and strokes.

The drug is known as Recombinant Activated Factor VII. The FDA has approved in the United States for treating forms of hemophilia that affect fewer than 3,000 Americans.

te Army medical command considers it a medical breakthrough that gives front-line physicians a way to control deadly bleeding. Physicians in Iraq have injected it into more than 1,000 patients, according to the Baltimore Sun.

For more go here.

Will Congress Give FDA Firepower?

From several sites:

Last week the U.S. Senate took testimony regarding a bill that gives a bit of oomph to the FDA.

The new bill includes a temporary ban on consumer advertising of newly approved drug. The FDA had issued a report that informed that that it simply cannot track the safety of new drugs, nor respond quickly to problems.

The bill would require pharmaceutical companies to devise safety plans for new drugs. It calls for more disclosure of the results of drug trials in human subjects. It also would give the FDA the authority to require companies to carry out safety studies of drugs once they are on the market.

Source here.

"Trial Lawyers" In the GOP ?

The RNC Chairman is now Mel Martinez, a former trial attorney from Florida. He made his bones in Florida working personal injury cases, and now leads the cause for the recently thumped GOP. My guess is his Hispanic heritage was a key factor, since Hispanics deserted the GOP in droves earlier this month in the mid term elections. "Although between 40 and 44 percent of Latinos voted for President Bush in 2004, almost 70 percent of Hispanic voters cast their lot for Democrats last week, according to exit polls." Source here.

In Florida, a trial attorney is now Lt. Governor. He was a member of one of the state's most aggressive trial lawyer firms, Morgan & Morgan. A good background article on him can be found here.

How will a Hispanic Trial Attorney accept the personal debasing that is such a part of the hysterial dialogue on immigration while working the byways of the USA? Will the medical malpractice mess of laws in Florida be revisited? Kottkamp himself had a brush with death that may have changed him, and it turned into a malpractice claim.

The article notes that he was a plaintiff in an October 2005 lawsuit alleging that improper maintenance of the hospital's roof allowed mold to infiltrate the room where he had surgery. That event almost killed him.

Perhaps each will be able to avoid the demonizing that goes on in the litigation arena. Perhaps each will be able to fight the splitting that goes on at the highest levels of the GOP. Time will tell.

Vioxx: Another Verdict in Favor of Merck

A federal jury on Wednesday cleared Merck in the July 2003 heart attack suffered by a Utah man who took Vioxx for 10 1/2 months.

Charles Mason blamed the drug for the heart attack which he suffered in July 2003. He had taken Vioxx after years of taking other anti-inflammatory drugs because of back pain.

Defense counsel: Beck said he and co-counsel Tarek Ismail made several points during trial. The attorneys focused on Mason's admission under cross-exam that he stopped taking Vioxx four days before the heart attack. The other was that film taken during the operation to open his blocked artery showed that the blockage was almost all plaque, rather than a big blood clot.

Defense counsel argued that there was no Vioxx in the Plaintiff's system when the heart attack happened. During his closing argument, Beck focused on those four days without Vioxx.

During closing, Merck counsel apparently told jurors that the New Orleans M.D. who had testified he believed Vioxx caused the heart attack also testified that he had never seen that film and was not qualified to evaluate it.

More later.

Ketek (Antiobitic): Bad News Ahead?

Ketek is a drug that has been approved in 2004 for the treatment of acute bacterial infections from chronic bronchitis, acute bacterial sinusitis and community-acquired pneumonia. There has been a link to Ketek ib reports of severe liver problems and deaths. As ar result the drug will be subjected to new scrutiny by the FDA.

The FDA will discuss the overall risks and benefits of the antibiotic Ketek during a Dec. 14-15 meeting, according to their site.
The joint panel's two-day review of Ketek could lead to a recommendation that the agency add further warnings to the label of the drug.

Ketek, also called telithromycin, carries a bold-type warning about the rare reports of liver failure and severe injury, some of them fatal, in patients treated with the drug.

For more, go here.

A New Litigation Blog Worth A Look:

The Texas Litigation Blog.

My good friend Angel Reyes and his law partner Brian Cuban have started it. Not a stuffy blog, it seems to be focusing more on current events as well as law.

Vioxx By The Numbers

Merck filed papers with the SEC that indicated that as 10/6/06:

There were 23,800 Vioxx lawsuits, with 41,750 individuals, and more than 14,700 claims have been filed under the MDL's "File and Stay" agreement with Merck.

Nearly 7,600 Vioxx claims were filed in or transferred to the MDL in New Orleans;

13,750 Vioxx lawsuits have been filed before Judge Higbee in a NJ State Court;

Merck took a charge of $598 million for Vioxx legal expenses on top of the $685 million it had previously set aside for litigation reserves.

Source here.

A Bad Marketing Idea

I drove back from Florida this past weekend, watching the Gators beat USCe. On the way back to Georgia, I saw a car whiz by ... loaded up with lettering advertising an accountancy office.

The new SUV had Georgia plates; the rear tailgate window had two inch high lettering indicating the website of the business. Below it, the telephone number with an Atlanta area code. On the right side, the same number with the name of the business.

Good enough, you say. Well, not really. I watched as the SUV weaved in and out of traffic. Cut off by my count at least five cars. As the driver passed me then jumped in front of me in order to traverse two lanes to exit the interstate, a cigarette butt went out the window. Then he/she was gone.

About twenty minutes later, going nearly 100 m.p.h., you guessed it - the accountant. Again, swerving across lanes. Amazingly, another butt tossed from the window. As traffic was heavier (construction), the SUV was in view for a while. Cut off an 18 wheeler, with the trucker using his horn.

I can only tell you that I will remember that business, for all of the wrong reasons. How could this person be so stupid?

Merck's Vioxx Successor - Arcoxia

Merck sent data on heart risks as to the delayed arthritis drug Arcoxia. Arcoxis is/was to be a potential successor to the withdrawn painkiller Vioxx. The company said it seeks a government OK of Arcoxia in 30-milligram and 60-milligram dosages.

Merck supposedly expects the FDA's Arcoxia to take about six more months.

Arcoxia can be purchased in more than sixty countries but has been under review by the FDA since 2003.

Merck said its response to approvable letters issued on Arcoxia by the FDA includes results of the "Medal" clinical trial. The trial, begun in 2002, was specifically designed to evaluate Arcoxia's cardiovascular risks.

Trial Attorney Blog: Podcast

Dave Swanner and I have spent hours working on the Trial Lawyer Resource Center along with many others who are respected within the trial bar.

Mark Wahlstrom from Legal Broadcast Network talked with me about the efforts of the Trial Lawyer Blog. You can find it here.

Mark's blog is found here.

Did the White House "Doctor" the 2003 Mission Accomplished" Video?

Take a look for yourself:

FDA Pharma Preemption: Recent Court Opinions

The news comes from both sides of the USA when it comes to the FDA Preamble as to preemption and its applicability in drug litigation. One supporter of the FDA's position says, "The FDA's bottom-line concern is that 'state-law attempts to impose additional warnings can lead to labeling that does not accurately portray a product's risks, thereby potentially discouraging safe and effective use of approved drugs." Source here.

First, the cases rejecting preemption - McNellis v. Pfizer Inc., 2006 WL 2819041 (D.N.J. Sept. 29, 2006), and others:

In McNellis the Court did not allow the preemption defense. The Court held that the regulations do not conflict with New Jersey's failure-to-warn laws. Recognizing the preamble as "an official agency statement" that favors pre-emption of conflicting state law claims, the court gave no deference to the FDA's interpretation because the agency's position has not been consistent over time, the regulations allow increased warnings when new risks emerge, and the relevant Act does not contain an express preemption clause.

You can find McNellis here: here (PDF Alert). You can find the Perry brief that was submitted on behalf of the Plaintiff by going here. (PDF)


After McNellis, Perry v. Novartis Pharma. Corp., No. 05-5350 (E.D. Pa. Oct. 16, 2006) was rendered and it also rejected the FDA's argument. The Perry Court found that a state law requirement to provide an additional warning would not create a conflict or make it impossible to comply with state and federal law.

A 2nd Circuit case, Desiano v. Warner-Lambert (2d Cir. Oct. 5, 2006) also did not agree with the FDA's position.

Court Opinion siding with the FDA Preemption argument:

In re Bextra and Celebrex Marketing Sales Practices and Product Liability Litigation, 2006 WL 2374742 (N.D. Cal. Aug. 16, 2006),

In Bextra and Celebrex, the U.S. District Court for the Northern District of California dismissed state law failure-to-warn claims involving a prescription drug because they conflict with the FDA's determination of the proper warning and pose an obstacle to the full accomplishment of the objectives of the Food, Drug and Cosmetic Act. The original label for the drug was approved in 1998, was revised in 1999 to add cardiovascular risks, and was later revised in 2005.

In dismissing claims that cardiovascular warnings were not adequate, the Court gave deference to the FDA's interpretation of the reach of the agency's labeling regulations. Note that the Court rules that consumer fraud claims were not deemd preempted.

The Court relied on the Geier decision.

Trasylol (Heart Surgery) News: Link To Kidney Failure

Trasylol (Generic: Aprotinin) is produced by Bayer. It is an injectable drug used to prevent excessive blood loss during heart surgery.

According to reports the drug doubles the risk of kidney failure and stroke and increases the risk of heart failure or heart attack by 55%. It is also linked with encephalopathy (degenerative brain diseases). Researchers announced their findings earlier this year, and the study results were published in the New England Journal of Medicine.

In late September of this year, the FDA held a public advisory committee meeting on to address the safety profile for Trasylol.

Also in September, Bayer informed the FDA that it had completed a study on this drug. The early findings from this study of patients from a hospital database reported that use of Trasylol may increase the chance for death, serious kidney damage, congestive heart failure and strokes.

October was not kind to Bayer and Trasylol. In October, Bayer suspended two senior employees over the company's failure to provide U.S. regulators with data on its heart-surgery drug Trasylol. Bayer also said it had hired an independent counsel to investigate its actions regarding the disclosure of the preliminary results from the Trasylol study. Source here.

FDA officials apparently contacted Bayer about making changes to the label, and also about developing a possible blood test to screen patients for adverse reactions.

Doctors currently are advised to give a small test dose to patients first, but FDA staff have said the tests do not always work and can also be fatal.

Election Day: What A Candidate Should Not Do

I have always subscribed to an adage (which some say is a tad corny) coined by Coach Don Shula years ago: "When you win, you can't always tell if you have done too much; when you lose you can always tell you've done too little." I apply it to my work ethic in all aspects of my office: Convincing a potential client to allow my firm to work for her, preparing for a deposition, getting ready for trial. From sports to family.

I have seen many candidates try to do too much in their campaigns, only to end up doing too little.

One candidate for Indiana's Ninth congressional district (source thanks to Crescat Sententia) started a blog in May 7, 2006 with one post, and did too little over the course of his campaign with it. He never paid attention to it after one post. It just sits there on the web, like a business card kept in a wallet. One comment was apparently written by a person named "dick in the dirt."

So future candidates, don't put up a blog and let it wither away. To make matters worse, now it's crosslinked on another blog - comments and all - as an example of not following through.

Ortho Evra (Contraceptive Patch): More Lawsuits Filed

Two lawsuits were filed in San Francisco regardnig the Ortho Evra patch. You can find them listed as Bracken-Hodge v. Ortho-McNeil, 06-457523; and Abel v. Ortho McNeil, 06-457524. In all more than forty women sued the makers of a popular birth-control patch alleging the contraceptive caused serious illnesses and at least one death.

In September, the FDA warned women that their risk of blood clots in the legs and lungs may be higher if they use the Ortho Evra birth-control patch instead of the pill.

The product label was updated to reflect the results of one study that found women using the patch faced twice the risk of clots than did women on the pill. A second study, however, found no difference in risk between the two forms of birth control.

For source go here.

Judicial Elections: A Disgrace

I've been in several states where there are hotly contested elections for judge or justice. I can tell you that I am sick of the attacks. Shameful. Disgraceful. An attack on the very fabric of our justice system.

In one Florida community there is an ongoing battle for a County Court position. The jurisdiction of county courts extends to civil disputes involving $15,000 or less.

The majority of non-jury trials in Florida take place before one judge sitting as a judge of the county court. The county courts are sometimes referred to as "the people's courts," probably because a large part of the courts' work involves voluminous citizen disputes, such as traffic offenses, less serious criminal matters (misdemeanors), and relatively small monetary disputes.

In the relatively small potatoes court the level of name calling and sniping literally took my breath away. I witnessed a shouting match between supporters of each candidate. I have heard that one candidate has trashed the moral reputation of one lawyer who dared oppose that candidate. The lawyer caught in the crossfire handles six and seven figure cases so the likelihood that he will ever appear before who gets elected is almost zero.

In Georgia, there is a spot running that has been called the most brutal ad ever produced. The opponent had a staffer tell him not to refer to his opponent as a "one legged Jew."





In Virginia a law student is physically tackled for asking a hard question of a senate candidate.

For shame. No solution in sight. Judicial appointments will not work.