Friday Diversion: An Atlanta Blog

The Majestice Diner on Ponce.

Isawitonponce.com

The site informs that it is "Dedicated to all of the unbelievable sights that can only be witnessed along historic Ponce De Leon Avenue in the heart of Atlanta, Georgia."

If you are ever in Atlanta, there is a distinct part of the city that has as its main artery Ponce De Leon Avenue. It's away from Buckhead, or trendy Midtown. To quote the blogger, mentioned in the local weekly known as Creative Loafing: It is a street that is "rich with character ... because it is the border dividing several distinct pocket neighborhoods – Midtown, Old Fourth Ward, Virginia-Highland, Druid Hills, Candler Park, Decatur. It divides neighborhoods that are almost different worlds.

The blog shows you the highlights of what 'the locals' like me get to enjoy. Events like the Decatur Arts Festival, and restaurants like Watershed. Give it a look.

FDA Conducting "Smear" Campaign vs. Avandia Critic

From ABC News:

The cardiologist who raised alarms about Avandia is saying a smear campaign has been organized against him by a top FDA rep.

Dr. Steven Nissen, chairman of Cardiovascular Medicine at the Cleveland Clinic, showed ABC News an e-mail sent to reporters by Douglas Arbesfeld, a senior communications consultant to the FDA.

According to the ABC report, the e-mail's title is "What are St. Steven's feet made of? Clay, perhaps?" It was forwarded to reporters with a critical news article which included an anonymous blog accusing Nissen of playing favorites among drug companies.

As I was reading the reply, I actually had an "LOL" moment as I read: "Arbesfeld, who is among the FDA's top spokesmen, acknowledged sending the e-mail to a handful of reporters but denied he was attempting to impugn Nissen's reputation. "

Riiiight. No, not at all. Let's see ... email allegedly sent from an FDA email account, a link to an anonymous blog post which has a drive by allegation of favoritism by Dr. Nissen (favoritism at the FDA perhaps??). No, the denial is most plausible. And I can sing tenor.

Source here.

Accutane Trial Verdict: $2.6 Million for Plaintiff

One of the first trials regarding the drug Accutane resulted in a Plaintiff's verdict in a New Jersey State Court.

The Plaintiff was Andrew McCarrell a software company employee. He was awarded $119,000 for past medical expenses and $2.5 million in compensatory damages to cover future medical costs, pain and suffering.

McCarrell took Accutane from June 1995 to October 1995 and suffered from achy knees and chapped lips while he was taking it. He later developed abdominal pain and was told her had inflammatory bowel disorder. He would later have his rectum and most of his colon removed.
After years using a colostomy bag, McCarrell had another surgery to connect the remains of the colon with the anus, resulting in permanent diarrhea because there is no colon to draw out excess water.

Three more trials are scheduled this year in Florida and Illinois.

My Interview on Legal Broadcast Network: Crazy Pants Lawsuit

About three weeks ago it seems that the $65 million dollar dry cleaning pants lawsuit was front and center everywhere - Fox, WaPo, AP, you name it. Last week Mark Wahlstrom from the Legal Broadcast Network interviewed me about this clearly frivolous lawsuit.

Catch Angel Reyes and Mark Cuban's blog posting about an attorney's response to the crazy pants lawsuit.

You can catch the podcast here.

AMO Contact Lens Solution Recalled

California-based Advanced Medical Optics (AMO) "immediately and voluntarily" recalled its Complete All-In-One MoisturePlus solution, which is sold across Canada and the United States.

The micro-organism causes acanthamoeba keratitis (AK), a serious corneal infection with symptoms that differ among patients. Symptoms range from redness and sensitivity to light to severe pain and possible vision loss. If left untreated, some patients may even require a corneal transplant.

The CDC interviewed 46 patients in the U.S. who had developed AK since January 2005. Thirty-nine of those patients wore soft contact lenses and 21 of them reported using Complete All-In-One MoisturePlus.

For the source, go here.

Majority of Medical Malpractice Claims Paid Zero?

From a site known as the insurancejournal.com:

The majority of medical malpractice claims in a study of seven states were closed without any compensation paid to those claiming a medical injury, the Justice Department's Bureau of Justice Statistics (BJS) reported. Go here for the abstract.

BJS conducted a study of medical malpractice insurance claims that were closed from 2000 through 2004 in Florida, Illinois, Maine, Massachusetts, Missouri, Nevada and Texas. These states were identified as having comprehensive medical malpractice insurance claims databases, some of which extended back to the early 1990s.

You can find the rest here.

Louisiana urged to make insurers pay up for $3B in shortfalls

From nola.com:

With federal officials hinting it is unlikely Washington will bail out Louisiana's Road Home program from a projected $3 billion shortfall, Gov. Kathleen Blanco and a top Louisiana Recovery Authority member are recommending the state seek more money from the group they claim caused about half the deficit -- insurers who underpaid homeowners for wind damage.

Go here for more. Also, thanks to the folks at ITP for noting that when it came to insurer payments in LA,

1. Insurers paid only 61% of total insured damages, including the flood program, while the state expected 76%.

2. Only 23% of policyholders got 100 cents on the dollar.

3. 37% of policyholders received less than 50 cents on the dollar, including flood.

4. About 8% received less than 10 cents on the dollar. Source.

Expect lawsuits before the upcoming 2 year SOL.

Avanaia (Diabetes Drug) and Claimed Link to Heart Attack Risk

From the upcoming NEJM comes a report that after an analysis of previous studies, patients on Avandia were reportedly more than forty percent likely to have a heart attack. The researchers also found a trend toward high death rates. Avandia is taken by 1 million Americans and generated sales of $3 billion in 2006. Source here.

The accompanying NEJM editorial hammered the drug's maker. While noting there were flaws in the study, “in view of the potential cardiovascular risks... the rationale for prescribing [Avandia] is unclear.”Assuming its findings are valid, they indicate “a major failure” of drug monitoring in the U.S., the editorial said. NEJM here.

I hope the impact of that clearly damning statement makes its way to Joe Citizen.

Congressmen John Dingell Bart Stupack have said they would launch an inquiry into what they called the failure of the manufacturer as well as the FDA to warn diabetics about possible risks associated with the drug.

The FDA's newly issued safety alert states:

“Patients who are taking Avandia, especially those who are known to have underlying heart disease or who are at high risk of heart attack, should talk to their doctor about this new information as they evaluate the available treatment options for their type 2 diabetes,”

The quote can be found in an article in the Congressional Quarterly with the title "FDA Under Fire for Handling of Diabetes Drug Risks." Here.

Can it get any worse for the FDA? My best is yes. It has not yet hit rock bottom.

Eli Lilly Sued by the State of Utah

Utah filed a lawsuit against Eli Lilly as to Zyprexa, claiming that the state was misled about risks to patients who received the drug through Medicaid.

"Utah has paid millions of dollars for inappropriate and medically unnecessary doses of Zyprexa. As a result, Lilly has been illegally enriched at the expense of the state," the lawsuit said.

The source for the quote and this article: Here.

Medicare Suggests Limits on Anemia Drug Coverage

More bad news for ESA drugs like Epogen:

From the Medicare site:

The Centers for Medicare & Medicaid Services (CMS) announced today its proposed decision to limit coverage of erythropoiesis stimulating agent (ESA) treatment for beneficiaries with certain cancers and related neoplastic conditions, either because of a deleterious effect of the ESA on the beneficiaries’ underlying disease or because the underlying disease increases their risk of adverse effects related to ESA use.

The proposed national coverage decision (NCD) was made in response to a Food and Drug Administration (FDA) black box warning regarding the use of ESAs. FDA recently announced concerns about the use of ESAs by adding Black Box warnings to all ESA labels.

This led CMS to open a National Coverage Analysis (NCA), on March 14, 2007, on the use of ESAs for conditions other than end-stage renal disease (ESRD), which was the first step toward issuing this proposed NCD.

FDA also conducted an Oncologic Drug Advisory Committee meeting on May 10, 2007 that raised concerns about the use of ESAs in oncology patients.

“We pay close attention to FDA black box warnings because the safety of our Medicare beneficiaries is paramount,” said CMS Acting Administrator Leslie V. Norwalk, Esq. “We have carefully examined the evidence surrounding these labeling changes and have issued this proposed decision to protect our beneficiaries.”

CMS proposes that ESA treatment is only reasonable and necessary under specified conditions for the treatment of anemia in certain cancers.

CMS is seeking public comments on this proposed decision. The public comments period is open until June 13. Medicare local contractors have the discretion to make reasonable and necessary determinations for all uses of ESA therapy for beneficiaries with cancer whose condition is not addressed in the proposed decision memorandum.

“Because there is a preponderance of emerging data for ESA use in the oncology setting, we have narrowed the focus of the national coverage analysis to ESA use in cancer and related neoplastic conditions,” said Barry M. Straube M.D., Chief Medical Officer for CMS and Director of the Agency’s Office of Clinical Standards and Quality.

ESAs are anti-anemia biologics, distributed as Epogen and Aranesp and as Procrit. They are manmade versions of erythropoietin, a hormone that is produced in the kidney, and stimulate the bone marrow to make more red blood cells.

ESAs are FDA-approved to treat anemia in patients with ESRD and reduce the need for blood transfusions in patients with ESRD and chronic kidney failure, as well as in cancer patients whose anemia is caused by chemotherapy. Epogen and Procrit are also approved for some patients scheduled for major surgery to reduce potential blood transfusions, and for the treatment of anemia due to zidovudine therapy in patients with human immunodeficiency virus (HIV).

This proposed decision is the latest step in CMS’ efforts to closely review the use of ESAs in the Medicare population. In addition to this proposed NCD, CMS continues to review its monitoring policy for the use of ESAs in the ESRD setting.

“Medicare beneficiaries with cancer and renal disease are among our most vulnerable patients, and we are dedicated to ensuring that they are receiving appropriate care,” said Dr. Straube.

For national coverage decisions, the Medicare Modernization Act of 2003 requires CMS provide a 30-day period for public comment on the proposed decision and make a final decision no later than 60 days after the conclusion of the public comment period.

Taken from this site.

FDA: Bad news for Aranesp

At the FDA last week the Oncology Drugs Advisory committee voted 15-2 to add additional restrictions to the Aranesp label and voted 12-5 to restrict certain tumor types from the drug's label. The panel was concerned about the lack of large, randomized trials of the EPO drugs and limited survival data. The FDA is not required to follow an advisory panel's advice, but it often does.

The committee voted 15-2 in favor of having further marketing authorization of the drugs be contingent upon adding additional restrictions to the drugs' labels. It also unanimously recommended further marketing of the drugs should be contingent on the companies conducting additional clinical studies.

These types of drugs are "injectables" known as erythropoiesis-stimulating agents, or ESAs, and act by stimulating the production of red blood cells in the body.

Story sources include: Marketwatch.com and the FDA site.

Pergolide and Horses: An update and how you can help

In my email, I've received a number of messages regarding the Pergolide withdrawal and its effect on horses.

I wanted to let folks know about a site worth reading: www.peroglideaction.blogspot.com.

The author notes that on 3/29/07, the FDA announced a withdrawal of the drug pergolide from the market. This action placed the health and well being of all horses diagnosed with Equine Cushing's Disease in jeopardy.

Dr. Kellon on her site also notes that there is no present viable alternative to pergolide to control Cushing's, or to stave off debilitating and life threatening side effect of the disease in horses.

There is a link on page one of the site to a petition. I signed it. Will you?

O.J. & his Attorney: Lawsuit for kicking OJ out of Restaurant?

O.J. Simpson, who is guilty (according to a civil jury verdict) of the wrongful death of Nicole Brown Simpson and Ron Goldman, was asked to leave a restaurant last week. "I didn't want to serve him because of my convictions of what he's done to those families," Jeff Ruby said in a telephone interview Tuesday. "The way he continues to torture the lives of those families ... with his behavior, attitude and conduct." Source here.

It looks like many who have heard about or read about this story side with the restaurant owner. On CNN last night Ruby mentioned on air that he had received many supportive emails.
O.J.'s attorney, however, sees it differently. Alas, he let his emotions get in the way of rational thought. According to published stories, Yale Galanter (Simpson's lawyer), said the incident was about race, and he intended to pursue the matter and possibly go after the restaurant's liquor license. Oh by the way ... Michael Jordan, walked in five minutes after Simpson left and got a table. He stayed, ate, paid his bill, and left.

"He screwed with the wrong guy, he really did," Galanter said by telephone Tuesday night. Source same as above.

Really? Let me think this through a bit. Kentucky like most states has a public accommodations statute. Is it likely that it was violated by the restaurant owner? IMHO, probably not. Let's presume though that on some level it was.

What happens next? Suing the restaurant? If I'm the restaurant attorney, I am thinking about a jury in Kentucky considering a case brought by someone found (in a civil court) of killing two people, the chances he would have in that state, and the likelihood that if he succeeds the money goes to satisfy the verdict against him in the wrongful death case. wqn

As an old law professor once said to me about a potential case, "Son, if I were you I wouldn't file that case."

Dangerous Food: Joint Update: FDA/USDA Finds Contaminated Poultry

The USDA and the FDA) have learned that byproducts from pet food manufactured with contaminated wheat gluten imported from China have been used in chicken feed on some farms in the state of Indiana. This information came to light as part of the continuing investigation into imported rice protein concentrate and wheat gluten that have been found to contain melamine and melamine-related compounds.

At this time, the investigation indicates that approximately 30 broiler poultry farms and eight breeder poultry farms in Indiana received contaminated feed in early February and fed it to poultry within days of receiving it. All of the broilers believed to have been fed contaminated product have since been processed. The breeders that were fed the contaminated product are under voluntary hold by the flock owners.

Source: FDA.

My comment: This is just the beginning of what may be an epidemic and years long series of instances involving contaminated food. Reports will become more common (and incidents more widespread) , rather than less common.

Anemia Drug in Japan Blamed for Death of Patient

A U.S. patient died of liver failure in Japan after taking an anemia med that is considered experimental. The patient was taking ten other medications and was over 70.

The drug is known now as FG-2216. It is part 2 of a three stage of patient study usually needed for approval in the U.S. It aims to help patients with chronic kidney disease and cancer increase levels of a protein called erythropoietin that stimulates production of red-blood cells, which carry oxygen through the blood.

The drug was to used orally, and would be an alternative to Epogen, Procrit and Aranesp . Recently each of those made news because of alleged links side effects, including strokes and heart attacks, in patients with chronic kidney failure. Epogen is also the biggest drug expense for the U.S. health insurance program.

The source is Bloomberg.

ACE Inhibitors May Cut Dementia Risk

The news isn't always bad when it comes to pharmaceuticals. If you have a loved one, family member or friend who is battling the onset of dementia, here's hopeful news:

Certain types ACE inhibitor hypertension drugs may help cut the risk of dementia in older adults, according to the Wake Forest University School of Medicine. According to WaPo, centrally acting ACE (angiotensin-converting enzyme) inhibitors may help reduce inflammation that might contribute to dementia.

People who took centrally acting ACE inhibitors, they had a 50 percent lower rate of mental decline than people taking other kinds of hypertension drugs.

Centrally active ACEIs, such as captropril (Capoten), fosinopril (Monopril), lisinopril (Prinivil or Zestril), perindopril (Aceon), ramipril (Altace), and trandolapril (Mavik), cross the blood-brain barrier. Previous animal studies suggest that centrally active ACEIs protect against dementia not only by controlling hypertension, but also by decreasing oxidative stress and reducing inflammation in the brain. (Source: Medscape).



The article may be found here.

Crazy Pants Lawsuit: A Reply

Many thanks to fellow Georgia attorney Jamie Bendall, the author of this fine piece:

I have a confession to make. I am serial changer of dry cleaners. Maybe
I'll change because I don't like the way my shirts are starched. Once it
was because the clean clothes smelled too much like chemicals. The worst
was when I had to change because I had thought they lost a pair of my
pants. Oh I was sure they'd lost them and man were those pants
comfortable. It turns out the pants were not lost, simply in the back of
the closet. As sorry as I am to admit it, I thought it easier to change
dry cleaners than let them know I'd found my pants.

You can imagine then why I was drawn to this story about the person who is
suing his dry cleaner for more than $65 million dollars over a lost pair of
pants. Now I know what you are thinking, obviously these pants had a
winning lottery ticket in the back pocket when they were lost. That's not
exactly the case. Instead, it's a basic dispute between a business and a
customer that has spiraled out of control. It's my guess that there are
only a handful of reasons why you may have heard about this lawsuit at all.
The first is that person who is suing the dry cleaner is a lawyer, and even
better than that, a Judge. The second is the amount of money, because
let's face it, that is one shocking amount to claim in damages. The third
is it's been a slow news period. The President and Congress are fighting
about to how best end our engagement in Iraq; a woman's right to choose is
being incrementally restricted; it will be at least another two weeks
before John Edwards needs another haircut, and Sanjaya is gone from
American Idol, so there's not much there to capture the imagination between
commercials for all-steel buildings and gold funds.

Thankfully, this story fits perfectly in to established story lines many
people have about the legal system. Even though the most recent studies
have shown that jury trials have been become more and more scarce, people
are still willing to believe that our civil justice system is on the brink
of disaster. The fact that this person, a citizen, can walk right in to
the courthouse, file a lawsuit, and claim that amount of money for a lost
pair of pants, well something simply has to be done about that. That this
person is a lawyer? That just dots the old "i" and crosses the old "t," on
the point that if we don't do something today, like cap damages or abolish
joint and several liability, or grant broad immunity for certain classes of
wrong-doers, then have failed the founders of this country.

Now it's probably time to let you know, if you hadn't guessed, that I am a
lawyer. I'm reading about what lawyers need to do, if anything, to counter the
discussion surrounding some guy who couldn't work it out with his dry
cleaner. It's a pretty sad state of affairs, when such a negative bill of
goods has been sold on an entire portion of a profession that this isolated lawsuit is seen as proof positive of system run amok.

Here is my suggestion, and believe me it's radical. Let the system work.
The person who was missing his pants and the dry cleaner tried to work it
out between themselves and for whatever reason, and whatever we may think
about that, could not. One recourse was to take legal action, and that is
what this person did. What he claimed as damages, and in what amounts,
appear to comply with what is permitted under the law. He has asked,
through the legal system, for the help of his community in the form of a
jury trial, to resolve this matter. Maybe, just maybe, we'll find that he
won't actually get awarded $65 million dollars. I am guessing our system
can handle this one, let's just be patient.

I want to end this a flourish. Perhaps I could mention that the Judge in this case will likely evaluate this case like most of us get dressed in the morning; one leg at a time. I thought I
might suggest that without knowing more about the case, my opinion would likely be hemmed in by what I knew. I also was going to attempt to include a reference to the pleatings in the case, but thought it was too much of a reach, though it seemed tailor-made at first. Instead, I will simply end by alluding to that famous story about the Emperor's new clothes, and
believe that this person, like the Emperor, may soon find that his claims
are wearing no pants.


Jamie Bendall
Bendall & Mednick

12 Important U.S. Laws Every Blogger Needs to Know

That is, according to the folks at http://www.avivadirectory.com/blogger-law/

The 12 include:

"Whether to Disclose Paid Posts:

Over the last five years bloggers have begun to displace traditional media outlets as individuals’ source for reliable information and recommendations. This development has created big opportunities for advertisers to get bloggers to endorse a product or service, primarily through posts or affiliate links. But as the practice and influence of bloggers has grown, US law has come to govern this area."

They then layout a thumbnail sketch of the law, and close with:

"How to stay out of trouble:

1. NEVER claim that you are an objective, unbiased source if you are being paid to provide information.
2. ALWAYS make it easy for your readers to distinguish between advertising and editorial content ... ."

It's worth the twenty minute read.

Witness Interviews: A Quick Way to Record/Transcribe

I'm a fan of Speakwrite, and lawyer Dave Swanner (South Carolina Trial Law Blog) has this: Use SpeakWrite to record witness interviews.

Dave tells us:

1. Call the witness on the phone. 2. Using conference calling, add www.Speak-Write.com as a "third" caller.

By setting up a conference call with Speak-Write, you eliminate the need to for having the equipment to digitally record the conversation yourself and you eliminate the need to hiring your investigator to take the statement. You also eliminate the cost of the investigator.

You can also use this to take a recorded statement from your client. You can put the phone on speaker and call Speak-Write. You will get a transcribed copy of the interview and also the digital recording in the client's own voice.

Good work Dave.

Katrina: Insurers Settle with Homeowners

From UPI:

Attorney Zach Scruggs announced that his office helped homeowners resolve 227 claims with Nationwide Mutual Insurance Co. on behalf of Mississippi's . In January of this year, State Farm Fire and Casualty Co. settled with 640 of Scruggs' clients for $80 million. There are another 34 that have settled. Still pending are 470 cases with State Farm.

Finding contractors to do the work for the insured homeowners is the next headache.

Blackbox Warning for Voltaren and other NSAIDS

The FDA is adding ‘black box’ warnings to all prescription and over-the-counter pain relievers – even to naproxen.

High doses of Advil (800 mg three times a day) and Voltaren (75 mg twice daily) were associated with rates of heart attack that were 51 percent and 63 percent higher than a placebo. An analysis of a large number of trials comparing COX-2 inhibitors to other NSAIDs found similar results – that Voltaren was estimated to increase vascular risk by about 70 percent over Aleve.

You can read more here.

Coming to Your MP3 Player: FDA Podcasts

The FDA is alerting health care professionals and consumers to the availability of audio broadcasts that provide emerging drug safety information.

The service is part of the agency's effort to speed up communications concerning the safety of marketed medications when unexpected adverse events are reported to FDA. You can subscribe to them for free at:

http://www.fda.gov/cder/drug/podcast/default.htm.

Vioxx News: Plunkett Seeks Trial #3

A woman whose husband died of a heart attack because of Vioxx (she claims) wants a retrial.

Evelyn Irvin Plunkett should get a third federal trial of her lawsuit claiming that the once-popular painkiller caused her first husband's fatal heart attack because a cardiologist who testified for manufacturer Merck & Co. did not reveal that his certification as a physician had lapsed. The first trial was a hung jury, and the second trial was a verdict for Merck.

For more, go here.

I'm In Love

Well, not in love, really. More like "I love this service." A company called Mediconnect, whose mission is stated on its site: "MediConnect offers secure online record retrieval using state-of-the art technology, a unique patented process, and individualized yet industry-leading service; all at minimal expense to you. "

I vowed in 2007 to use a records retrieval system like this, and generally had no complaints. Last week I had an urgent need to obtain a medical record from a hospital in another state. It was a rush item. One that if handled in office would likely take at least ten to fourteen days, multiple fax transmissions and multiple calls.

I used Mediconnect, ordered the records on a Thursday afternoon, and by Monday had the records in hand (via PDF to my email). Less than two business days. By Tuesday it was in the hands of an adjuster, and late yesterday the matter was resolved.

The best part about this service (and there are surely others) was: No staff complaining about having to go into crisis mode to obtain the records, less cost than staffing, no concerns by me over whether or not it was birddogged properly, and fast turn around. All for under $30 plus the costs of the records.

You owe it to yourself to give it a look, in my humble opinion.

Pergolide's Withdrawal Impacts 10,000 ...

Horses. Yes you read that right. An estimated 10,000 horses are currently prescribed pergolide in the United States.

The news that Pergolide (treats symptoms of Parkinson's disease) will be withdrawn from the market has a direct effect on ... horses.

Pergolide (Permax) is in a class of medications called dopamine agonists and is an important med used to control the symptoms of Cushing's disease, a pituitary disorder found in horses.

Current drug rules in the United States will not allow its import and use on animals. Nearly 10,000 horses are prescribed this drug.

Some may remember that the news regarding Hormone Replacement Therapy (HRT) also had an effect on horses. The horses were bred on Premarin farms, and when the HRT study showed a possible link between HRT drugs and certain cancers, many horses were put to death. Source here.

Sources include: Thehorse.com

14,000 Less Cases of Breast Cancer B/C of less HRT Use?

In 2002, Wyeth (maker of Prempro and Premarin) was hit with the news that claimed a link between breast cancer and the drugs it made for Hormone Replacement Therapy.

According to a recent study, as noted by among others Bloomberg, the rate of women diagnosed with breast tumors fell in 2003 and did not change in 2004, according to a report issued by researchers from M.D. Anderson Cancer Center in Houston.

Millions of menopausal women gave up on the HRT drugs affter the 2002 study was issued.

``The missing cancers, the ones that don't seem to have occurred, are the kinds that are responsive to hormone therapy,'' said the lead author, Peter Ravdin, an investigator at the cancer center, in a telephone interview. ``The decline was not a one-year wonder, a short-lived anomaly.''

Stopping hormone-replacement therapy may have led to 14,000 fewer breast cancers in 2003 than a year earlier, according to Donald Berry, head of quantitative sciences at M.D. Anderson.

What is notable in the article is this: Incidences of breast cancer rose about 0.5 percent a year throughout the 1990s according to the researchers. The last two years? A decline of more than 8 percent.

Motion in Limine: Low/Minor Impact Complaint - Exclude Photographs

Body of the Motion:

The evidence of the extent or amount of property damage is irrelevant.


Because the fact of the collision and the damage to the vehicles involved are not at issue in this case, photographs of the vehicles, property damage invoices, or other evidence regarding the extent or amount of property damage is not relevant. Georgia Rule of Evidence O.C.G.A. §24-2-1 defines relevant evidence as “evidence that relates to the questions being tried by the jury and bear upon them either directly or indirectly. Evidence that fails to meet that definition is irrelevant and is inadmissible. O.C.G.A. §24-2-1.

The Defendant has admitted causing the collision. Additionally, neither party has made a claim for property damage in this suit. Because neither the fact of the collision nor the amount of damage to the vehicles is at issue in this case, evidence discussing such issues does not make any fact of consequence more or less probable.

The extent or amount of property damage lacks the requisite foundation and testimony.

Because the fact of the collision and the damage to the vehicles are not issues in this case, the only conceivable purpose for evidence of the extent or amount of property damage is to invite the jury to speculate on the issue of causation (or absence thereof). To prove or disprove causation, however, the party must present competent evidence through competent witnesses after a proper foundation has been laid for the witnesses’ testimony.

The defense has not designated any expert witnesses to testify as to causation or lack thereof. Instead, the defense will simply refer to the photographs or repair invoices for the vehicles and argue that the jury use their “common sense” and find that Plaintiff’s injuries could not have been caused in this collision. Georgia courts require testimony, not argument, to prove or disprove causation and damages.


Use of evidence of property damage in this manner requires a proper foundation be laid through an expert witness. Interpreting the force of an impact from vehicle photographs and then assessing the likelihood of injury from such impact are tasks that can only be attempted by experts. Such matters are not within jurors’ realm of common sense.

For example, the issue of determining the force of the impact in a two-vehicle collision has been debated in scientific literature for years.Determining how much energy was transferred from the object vehicle to the target vehicle alone is extremely difficult to accomplish because most of the vehicle crash tests are conducted with a vehicle and fixed object (rather than between two vehicles).

Furthermore, most of the crash tests are performed at speeds exceeding 30 m.p.h., therefore, making it virtually impossible to extrapolate the crush values to lower speed collisions. Lastly, vehicles vary considerably in their ability to absorb certain impacts without showing damage. In fact, the same vehicle may show little damage after one type of impact, but extensive damage from another type of impact.


Even if it were possible to determine how much energy was transferred from one car to another, it is usually impossible to then ascertain exactly how much energy was transferred to the occupant of the target vehicle (as opposed to how much energy was absorbed by the vehicle). Assuming we could compute how much energy from the object vehicle reached the occupant, we would then need to know how it caused the occupant to move. To calculate this, we would need to know things like how the occupant was seated, their head position relative to the head rest and whether their head was turned. These computations can only be made by a biomechanical expert or someone with biomechanical training.

Discovery has closed, and there has not been a designation of an expert on this issue. Many are correctly finding that such evidence is not admissible when it is not accompanied by supporting expert testimony to establish an adequate foundation. See Davis v. Maute, 770 A.2d 36 (Del. 2001) (reversible error to admit evidence of property damage and allow counsel to argue serious injuries could not have resulted from “minor” collision).

The Davis court correctly found: As a general rule, a party in a personal injury case may not directly argue that the seriousness of personal injuries from a car accident correlates to the extent of the damage to the cars, unless the party can produce competent expert testimony on the issue. Absent such testimony, any inference by the jury that minimal damage to the Plaintiff’s car translates into minimal personal injuries to the Plaintiff would necessarily amount to unguided speculation. Davis, 770 A.2d at 42. The Davis holding was reaffirmed by the Delaware Supreme Court in the case of Eskin v Carden, 842 A. 2d 1222 (Del. 2004). See also, Brenman v. Demello, 383 N.J.Super. 521, 892 A.2d 741 (N.J.Super.A.D.,2006).

Thanks to Glenn Loewenthal, Esq.

Epogen Study: Drug was a Profit Center?

From Forbes and JAMA:

Kidney dialysis centers run as for profit businesses (such as Davita) administered significantly more of the anti-anemia drug Epogen than did not-for-profit dialysis centers, according to JAMA in a recent article.

The authors of the JAMA article ("Dialysis Facility Ownership and Epoetin Dosing in Patients Receiving Hemodialysis") reviewed Medicare claims data to examine Epogen dosage for nearly 160,000 dialysis patients in December 2004. The authors found that the for profit centers used an average dose of Epogen, also known as epoetin, that was 20,838 units per week--16% higher than the average dose at nonprofit facilities.

Recently the FDA issued an advisory warning that epoetin and darbepoetin (erythropoiesis-stimulating agents [ESAs]) result in an increased number of deaths and of non-fatal heart attacks, strokes, heart failure, and blood clots when ESAs were adjusted to maintain hemoglobin at a certain rate.

In the same JAMA issue, there is an editorial that notes the 2004 Medicare reimbursement rate of $10 per 1,000 units of Epogen resulted in a $1,700 a year per patient higher expense for the higher average dose.

What to me is significant is that JAMA appears to have found problems with Medicare reimbursement for dialysis treatment. According to the data, a large portion of the 335,000 kidney failure patients here who receive dialysis are covered by Medicare. One source is here.

Medicare will reimburses dialysis centers directly for this treatment at a fixed amount. But reimbursement for the use of Epogen is not capped; instead, it is based on the amount of the drug that is used. Medicare spends more money on Epogen--nearly $2 billion--than on any other drug.

According to Forbes and others, a Morgan Stanley report estimated that dialysis chains made 25% of their profits on the Epogen spread.

Gov. Corzine: Not Buckled

The gothamist.com has a well done graphic showing layout of the SUV in which New Jersey Governor Corzine was a front seat, unbuckled passenger. By now most know that Corzine suffered severe injuries in a car wreck last week. No seatbelt. What was he thinking?

Listerine Recalls 4 million bottles of mouthwash

Late yesterday, Johnson and Johnson recalled four million bottles of its Listerine agent Cool Blue mouthwash. This applies to the "glacier mint" and "bubble blast" flavors.

The company says tests showed it is contaminated with microorganisms. This could make some people sick who have weakened immune systems. However, there have been no reports of sickness so far.

For more, go the website: www.agentcoolblue.com.

Adolor's Bowel Drug "Entereg" also linked to Heart Disease

In the wake of last week's news regarding Zelnorm and the decision to voluntarily yank it from the market, GlaxoSmithKline and Adolor Corp. have said that the experimental drug Adolor to treat constipation due to opioid painkillers was linked to higher risk of heart attacks and other serious heart problems, fractures and skin cancers in a late-stage trial.

The companies said the negative findings came from a year-long Phase III study of Entereg involving 805 patients experiencing bowel dysfunction as a result of taking opioids for treatment of chronic non-cancer pain.

For more, go here.

Do you use the term "corpus" daily?

As the Anna Nicole Smith baby daddy issue flogs humanity from every available media outlet today (DNA results released) , I heard an exchange on a local Atlanta station. The newsman on that station mentioned the DNA results, then turned to the station's "go to" legal expert for comment.

The legal eagle was asked words to the effect of, "what does this mean for the [Anna Nicole Smith] baby's finances in the future?" The lawyer's reply? He said, "the corpus may be encroached upon by application" in the future for the child's benefit. A cutaway to the weather followed.

75% of the listeners just said "huh?" Apparently it's too much to ask an attorney to speak plainly now on air.

Blogging: Heavy Handed, Self Appointed Blog Cop Wants Rules

I had to laugh as I read the news that Tim O'Reilly - a person the average man on the street couldn't tell you one thing about - has decided that blogs and bloggers must be muzzled.

Nonsense. The self important snob forgets that the import of anonymous speech rises geometrically in proportion to the growth of big government. Those who seek to control such speech are in my humble opinion dangerous to the very foundation of free speech.

From various sites:

Last week, Tim O’Reilly, a conference promoter and book publisher who is credited with coining the term Web 2.0, began working with Jimmy Wales, creator of the communal online encyclopedia Wikipedia, to create a set of guidelines to shape online discussion and debate.

Chief among the recommendations is that bloggers consider banning anonymous comments left by visitors to their pages and be able to delete threatening or libelous comments without facing cries of censorship. (Source, here).

Take a look around, Tim. In fact, why not take a moment to check out the history of our nation's leaders? If you bothered to do so, you would know Abraham Lincoln and Benjamin Franklin both published anonymous letters for political purposes. In fact, Franklin used anonymous letters for political purposes up to his death. (Source here).

This self important but likely well meaning attempt to muzzle bloggers should cease.

FDA: Zellnorm Withdrawn

Just a week or so ago, the FDA asked that the marketing of Zelnorm end, based on findings suggesting increased risks of serious cardiovascular adverse events (heart problems) associated with that drug. The drug was voluntarily withdrawn.

The drug was often used to treat IBS and significant abdominal pain, Zelnorm is the only FDA-approved therapy for the constipation-causing form of the ailment.

For more, go here.

Sen. Grassley: Show me the Zyprexa documents

The Republican Senator from Iowa wants Eli Lilly to produce documents that may suggest Lilly didn't play fair in touting Zyprexa, often used to treat schizophrenia and bipolar disorder.

Senator Grassley wants Lilly to provide "e-mails, letters, reports" and other internal documents relating to Zyprexa. Earlier this year, a USDCT judge ruled on the dissemination of documents that were the focus of New York Times articles reporting that Lilly knowingly understated the risks of its drug, and touted it for unapproved uses. You can find the NYT article here.

From the NYT: "Lilly’s own published data, which it told its sales representatives to play down in conversations with doctors, has shown that 30 percent of patients taking Zyprexa gain 22 pounds or more after a year on the drug, and some patients have reported gaining 100 pounds or more. But Lilly was concerned that Zyprexa’s sales would be hurt if the company was more forthright about the fact that the drug might cause unmanageable weight gain or diabetes, according to the documents, which cover the period 1995 to 2004."

Practicing Law: My New Office

Posting has been a bit light for me lately, as I have left my prior firm and have now opened my own office. Extricating myself from one firm has had issues typical to most, as well as several that are a bit less standard.

Change can come quickly as I have seen. I am quite happy now, more so than I thought possible. I will be writing a bit more as time permits.

Ortho Evra: Drug's Maker Buys "Negative" Domain Names

From Bloomberg:

Johnson & Johnson bought domain names Orthoevrakills.com and Deathbypatch.com according to documents released today in a New Jersey lawsuit. Ortho Evra is a birth control patch currently on the market.

One document from Johnson & Johnson document refers to the purchase of domain names, monitoring blogs and bidding on key search terms about the patch on search engines.

I went to both site, but nothing is up on either one. Perhaps J and J should direct them to a news page inside their main domain?

Procrit, Aranesp and Epogen News: Congressman Says Stop the Ads

Congressman John Dingel has asked both Johnson & Johnson and Amgen Inc. to stop consumer advertising of their anemia medications for cancer patients until May 2007 or until the FDA wraps up an ongoing review.

Aranesp and Epogen (Amgen) and Procrit (J&J) have both been in the news over a recent clinical trial.

There is a planned May 10, 2007 FDA advisory panel meeting to determine among other things the black box warnings planned for the drugs. what, if any, additional measures need be taken to protect the public from unnecessary risks to human life from these products,'' Dingell said in the March 20 letters. His office confirmed the letters were sent today.

Procrit, Epogen and Aranesp are engineered versions of a protein called erythropoietin, or EPO. EPO promotes the production of red-blood cells, which carry oxygen through the blood. EPO has long been discussed in pro cycling circles. Go here for an article titled "Spinning in their Graves." Lance Armstrong had been given Epogen during his cancer battle.

The recent study suggested that blood clots, strokes and heart attacks may be linked to higher doses of these medications, a claim denied by the drugmakers.

Black Box Warnings for Procrit, Eopgen and Aranesp

From several sources:

Last week the the FDA issued a warning that using of an erythropoiesis-stimulating agent (ESA) also known as recombinant human erythropoietin to raise hemoglobin may be linked to serious and life-threatening side-effects or even death.

What is particularly noteworthy is that the FDA has stated there has never been any evidence to support claims made in direct-to-consumer advertising that treatment with darbepoetin (Aranesp), epoetin alfa (Epogen), or epoetin alfa (Procrit) might increase energy or ease fatigue in patients that face cancer therapy.

What does the warning say?

That persons taking any of the stated drugs use the lowest dose of Aranesp, Epogen, or Procrit that will gradually raise the hemoglobin concentration to the lowest level sufficient to avoid the need for blood transfusion

• Aranesp, Epogen, and Procrit and other erythropoiesis-stimulating agents increased the risk for death and for serious cardiovascular events when dosed to achieve a target a hemoglobin of greater than 12 g/dL.
• Use of erythropoiesis-stimulating agents to achieve a target hemoglobin of 12 g/dL or greater in cancer patients shortened the time to tumor progression in patients with advanced head and neck cancer receiving radiation therapy; shortened overall survival and increased deaths attributed to disease progression in patients with metastatic breast cancer receiving chemotherapy; and increased the risk of death in patients with active malignant disease not under treatment with chemotherapy or radiation therapy. Erythropoiesis-stimulating agents are not indicated for this patient population.
• Patients treated before surgery with epoetin alfa to reduce red blood cell transfusions had a higher incidence of deep vein thrombosis. Aranesp is not approved for this indication.

For more, go here.

Katrina: Gator Basketball Tours 9th Ward

From time to time I post about my alma mater, The University of Florida. This past weekend, the basketball team was in New Orleans, and the players and coaches toured the area devastated by the storm and its flooding.

One player, Joakim Noah, said this: "It was an experience I'll never forget." "It's been a year-and-a-half since Katrina, but in some areas, it looks like the hurricane hit just last week." He also commented, "It makes you wonder, 'Do we really care?' "

For more, go here. The link takes you to the Sunday 3/18/07 Orlando Sentinel article.

My comment: The answer to your last question is NO. America does not care. Many individuals, churches and volunteers, and I do, but the insurers, the politicians, the true titans of business do not. It may as well be Bosnia.

Shameful.

Vioxx Verdict: $20 Million in Humeston

In New Jersey, the Humeston case was retried, and today (3/12/07) the verdict came back: The jury concluded that Vioxx contributed to an Idaho postal worker Mike Humeston's heart attack, and awarded him and his wife $20 million in damages. The jurors awarded Humeston $18 million in compensatory damages and gave another $2 million to his wife, Mary.

The punitive damages phase begins this week.

My comment: Chris Seeger vowed that a retrial would vindicate his clients, and it has.

Actos (Diabetes Drug): Blamed for Broken Bones

Actos is a diabetes drug introduced in 1999. According to a recent study sponsored by Takeda, the drug's maker, it found incidences of fractures when comparing Actos to a placebo.

Women using Actos had about 1.9 broken bones for every 100 patient-years studied, compared with 1.1 broken bones for 100 patient-years in the other women. The data represented almost 12,000 patient-years for each group.

Most of the fractures involved the hands, wrists, forearms, feet, ankles and legs. Takeda said it doesn't know what caused these broken bones and is still evaluating the findings.

For more, go here.

Vioxx: Texas Garza Verdict Stands (For Now)

Leonel Garza's Vioxx verdict in Texas last year for $7.75 million will not be retried.

A State Court Judge did not rule on a pending Motion for New Trial filed by Merck. The Motion as a seventy five day time frame in which a Judge could rule on it. By not ruling, it has been effectively denied.

I am certain that there will be an appeal.

Seroquel and Zyprexa: Off Label Use Rampant?

Seroquel prescriptions for off-label use are growing. According to a recent report in Bloomberg,

Prescriptions for Seroquel and Zyprexa, generated more than fourteen billion dollars in total sales last year. According to doctors, the drugs have been prescribed to patients with Alzheimer's disease as well as to teenagers with emotional conditions.

Nearly half of Seroquel prescriptions last year were allegedly for disorders for which AstraZeneca has yet to gain regulatory approval. It is, however, legal for doctors to administer drugs for certain unapproved medical conditions. Companies are prohibited from marketing products to doctors for uses not yet cleared by the U.S. Food and Drug Administration in Washington or by regulators in other countries.

Consequences for off-label scripts? Half a dozen states have filed suit against Eli Lilly, claiming in those lawsuit papers that the drugmaker (and others) failed to disclose the risks of side effects caused by the drug and promoted their use to treat conditions for which they were not approved.


For more, go here.

I Want Your Motion in Limine!

If you have a Motion in Limine that you are willing to share, would you send it to me? I would like any that you believe are helpful in your injury cases. Any Court. I plan to publish excerpts here, and any additional comment you may have regarding the contents of it.

My email is to the right. Any format. Are you willing?

Talk Like a Lawyer?

Trial attorneys and litigators of nearly every stripe will often tout how important it is to speak plainly, and how it is better to avoid legal jargon. Most unfortunately do not practice what is preached.

I'm reviewing a deposition transcript this morning and I'm getting a headache. Defense counsel has asked these gems: "Remembering that you are under oath, please describe the nature and permanency of the alleged personal injuries suffered by you in this negligence action." The reply was, "I don't understand what you just asked me."

Another: "What if any exacerbation of any pre-existing emotional condition are you claiming as a result of this negligence action?" His reply was that there was no "exasperation."

Have I described you?

Long ago I learned one basic question that I now always ask. Lefferts Mabie always began questioning with "tell us who you are." Better than, "please state your full legal name for the record."

Tamiflu: Side Effects Causing Concern?

The influenza drug Tamiflu may cause fatal side effects -- according to news from Japan. Two people who took it fell to their deaths in February of 2007.

The Health Ministry of Japan issued warnings that influenza patients may show psychiatric problems.

To the surprise of no one, Roche - the maker of the drug - denied a link between the medication and the deaths

For more, go here.

Bausch & Lomb recalls 1.5 million bottles of ReNu MultiPlus Lens Solution

B and L is recalling about 1.5 million bottles of ReNu MultiPlus because trace amounts of iron could cause the cleaner to lose effectiveness earlier than normal.

The optical products maker also reported a modest drop in fourth-quarter and full-year sales in 2006, citing sluggish contact lens sales amid a slower-than-expected recovery from last spring's recall of MoistureLoc, which was blamed for an outbreak of severe fungal eye infections.

No injuries have been reported, thankfully.

The recalled lots carry the expiration date “2008 – 03” on the bottle.

Not Legal: Post Secret

Frank Warren appears at themy alma mater the University of Florida this week. In case you don't know of him or his blog,Frank Warren is searching for the perfect secret, although he's not sure what it will look like. According to the press reports:

He spends about eight hours every day sorting through the 100 to
200 secrets that are delivered daily to his suburban home in
Germantown, Md.

Most come as postcards, usually in two 3-inch tall stacks. His
mail carrier, who knows Warren by name and face, fastens the stacks
neatly with two rubber bands, like ribbons on a gift. But others come
in more unusual packages - like the Starbucks Coffee cup that said
"I give decaf to customers who are rude to me."

Go here - http://postsecret.blogspot.com/ to check it out. Not legal - as in, this was not a post talking about legal issues or news.

Vioxx: Friday's Verdict News

In the cases jointly tried to conclusion last week, the jury found that that Merck was not negligent in the case of Brian Hermans of Waupaca, Wis., who died at age 44 after a September 2002 heart attack.

The jury did find that Merck violated New Jersey's consumer fraud law, so Hermans' family could recoup three times what he paid for Vioxx prescriptions. It also allows Hermans' family lawyer, Mark Lanier, to recoup his legal fees, which he estimates at $2 million.

In the second case, Mr. Humeston presented his case once more. Today the jury starts phase two, to determine whether the second plaintiff is entitled to damages. The jury found Friday that Merck was negligent in the case of Frederick "Mike" Humeston, 61, of Boise, Idaho, who survived a heart attack in September 2001, before the stronger warning. That case is considered a pre "warning change" case.

Jurors heard evidence about Merck's marketing of Vioxx and what it disclosed about increased risks of heart attack and stroke, which led Whitehouse Station, N.J.-based Merck to pull the blockbuster drug from the market in September 2004.

Tech: Gigasize.com & Jott

Gigasize.com allows you to share and send files up to 1.5GB. It's free . There is a 2.5 GB service for a small fee. Worth a look.

Jott.com is a telephone-based reminder system that sends your short message to your email (or another's email). Free. I like free a lot. I'm in the car a bunch, so it is much easier to call the toll free reminder and send a message than it is to write at 70 m.p.h.

Vioxx: Illinois State Court Trial Begins

In Madison County, a jury was selected to consider a widower's claims that Merck's drug is the culprit in his 52-year-old wife's fatal heart attack.

Patricia Schwaller is the deceased. She too Vioxx for more than 20 months before she died suddenly Aug. 8, 2003, her family's attorneys say. The woman had no previous heart attacks, strokes or symptoms of congestive heart disease according to her attorneys.

My opinion: For now the defense for Merck has been on limited fronts - the MDL, New Jersey, and California. Texas is plodding along. Illinois is another battleground now, and this case is one where the usage is more than the eighteen month period that Merck has said would be a floor in considering any possible causal link.

Stay tuned.

Liberty Mutual Insurance

Liberty Mutual Group Reports Fourth Quarter 2006 Results

My friend and fellow Georgia lawyer Mike Neff posted the news that Liberty Mutual Group (“LMG”) reported net income of $455 million and $1.626 billion for the three and twelve months ended December 31, 2006, respectively, an increase of $202 million and $599 million over the same periods in 2005.

Seems like LMG is doing rather well. Crisis? What crisis?

Dog Lawyer

Funny stuff.

A Lawyer Too Smart For His Firm?

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

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

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

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

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

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

If he's smart.

EPO Drug: Bad News

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

For moe, go here.

Xolair (Asthma Drug): FDA Demands Black Box Warning

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

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

For more, go here.

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.