Trucker Texting Ban

Image by mrJasonWeaver via FlickrRules prohibiting  texting by Commercial Motor Vehicle (CMV) drivers were  published in the Federal Register. Here are some important points:

1. Texting increases the risk of a wreck 23.2 times vs. a non-texting driver
2. A texting violation counts as a serious traffic violation and can disqualify a CDL driver
3. Federal Employees were forbidden to text and drive on October 6, 2009 (74 FR 51225 and Executive Order 13513)
4. Texting includes dispatch devices, cell phones, or ANY other texting device such as a laptop
5. The FMCSA states the Duty to ensure there is no texting by the driver is imposed on the carrier directly.
6. FMCSR impacted by the ban on texting include:
   1. 383.5    Definitions
   2. 383.51  Disqualifications of Driver
   3. 390.3    General Applicability
   4. 390.5    Definitions
   5. 391       Qualifications of Drivers
   6. 391.2    General Exceptions
   7. 391.15  Disqualification of Drivers
   8. 392.80  Prohibition Against Texting (new)

Related articles

• Proposal bans texting by haz-mat truck drivers (seattletimes.nwsource.com)
• Hey Drivers: No Texts For You! (bostonist.com)
• Mysa.com: Texting ban looms in S.A. (mysanantonio.com)

Lipitor bottles recalled because of odor

Image by Getty Images via @daylife Pfizer Inc said it recalled 191,000 bottles of its top-selling Lipitor cholesterol fighter following reports of a musty odor coming from some bottles of the medicine made by a third-party supplier.

The world's largest drugmaker said the recall, which took place in mid-August, involved seven lots of 40 milligram Lipitor, as well as three other lots of the medicine supplied to a Canadian generic drugmaker. Five of the seven recalled lots of the branded medicine were in the United States, while two were recalled from Canada, Pfizer said.

The recall was initiated after the company received three reports from consumers complaining about the musty odor, including one so-called adverse event report, Pfizer spokesman Rick Chambers said

Big Win for Novartis in NJ Trial of Zometa/Aredia

A New Jersey jury ruled that Novartis , provided adequate warnings about the risk of its bone-strengthening medicines, rejecting a lawsuit by a woman who claimed the drugs destroyed her jaw.
Jane Bessemer, 73, sued Novartis after developing jawbone damage while taking Aredia and Zometa to slow bone loss as she battled breast cancer. Jurors in state court in New Brunswick, New Jersey, ruled that Novartis provided adequate warning to Bessemer’s physician of jaw problems from Aredia and Zometa.

Both drugs are still on the market.

Last year, a Montana jury ordered  Novartis to pay $3.2 million in damages to a woman who blamed the drug for damaging her jaw.
Read more here. 

Foreclosure Furor Rises; Many Call for a Freeze

Image by respres via Flickr
From the NYT:
he uproar over bad conduct by mortgage lenders intensified Tuesday, as lawmakers in Washington requested a federal investigation and the attorney general in Texas joined a chorus of state law enforcement figures calling for freezes on all foreclosures.

Representative Nancy Pelosi, the House speaker, and 30 other Democratic representatives from California told the Justice Department, the Federal Reserve and the comptroller of the currency that “it is time that banks are held accountable for their practices.”

In a request for an investigation into questionable foreclosure practices by lenders, the lawmakers said that “the excuses we have heard from financial institutions are simply not credible."

Officials from the federal agencies declined to comment.

Texas Attorney General Greg Abbott, a Republican, sent letters to 30 lenders demanding they stop foreclosures, evictions and the sale of foreclosed properties until they could provide assurances that they were proceeding legally.

Both developments indicated that scarcely two weeks after the country’s fourth-biggest lender, GMAC Mortgage, revealed that it was suspending all foreclosures in the 23 states where the process requires judicial approval, concerns about flawed foreclosures had mushroomed into a nationwide problem.

Some of the finger-pointing was also being directed back at Congress. The Ohio secretary of state, Jennifer Brunner, suggested in a telephone interview on Tuesday that a bill passed by Congress last week about notarizations could facilitate foreclosure fraud.

Dubious notary practices used by banks to justify foreclosures have come under scrutiny in recent weeks as GMAC and other top lenders suspended homeowner evictions over possible improper procedures.

As banks’ foreclosure practices have come under the microscope, problems with notarizations on mortgage assignments have emerged. These documents transfer the ownership of the underlying note from one institution to another and are required for foreclosures to proceed.

In some cases, the notarizations predated the preparation of the legal documents, suggesting that signatures were not reviewed by a notary. Other notarizations took place in offices far away from where the documents were signed, indicating that the notaries might not have witnessed the signings as the law required.

.”

Last week, JPMorgan Chase and Bank of Americajoined GMAC in suspending foreclosures in the states where they must be approved by a judge. The judicial states do not include California or Texas.

The three lenders who are at the center of the controversy, GMAC Mortgage, JPMorgan Chase and Bank of America, declined to comment. Other lenders singled out by Mr. Abbott include Wells Fargo, CitiMortgage, HSBC and National City.

Meanwhile, shares of a major foreclosure outsourcing company, Lender Processing Services of Jacksonville, Fla., fell 5 percent on Tuesday, adding to a slide that began last week.

The company’s documentation practices are stirring questions, including how the same employee can have wildly varying signatures on mortgage documents. L.P.S. blamed a midlevel manager’s decision to allow employees to sign forms in the name of an authorized employee. It says it has stopped the practice.

The United States Attorney’s Office in Tampa began investigating L.P.S. in February. An L.P.S. representative could not be reached Tuesday for comment.

Bad Weather Truck Wrecks in Georgia

Image by Fadzly @ Shutterhack via Flickr

A trucker going too fast for roadway conditions in bad weather has always been a serious cause of  wrecks. The question is how do you define “bad weather” and what is the standard for trucker drivers who drive in adverse weather?

 

There is a specific federal regulation – federal motor carrier safety regulation – that addresses this topic.  FMCSR §392.14 says: 

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist.  If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be operated safely.  

This FMCSR sets a very high standard of care on professional drivers when operating in anything less than ideal conditions.  This high standard is appropriate because of the dangers posed by trucks in adverse weather conditions.   

The duty to know when it is safe or not is on the trucker, but consider the real world.  Truckers don’t get paid usually unless they are driving.  Some trucking companies put pressure on drivers to get the truck to its destination because the trucking company does not get paid until the freight is delivered.  So, I bet you can see the problem….

Another interesting source on the subject is the CDL manual.  This is the manual all drivers have to study to get their CDL license.  In the CDL Manual, it says:

Wet roads can double stopping distance.  You must drive slower to be able to stop in the same distance as on a dry road.  Reduce speed by abourt one-third (e.g., slow from 55 to 35 mph) on a wet road.  On packed snow, reduce by a half or more.  If the surface is icy, reduce speed to a crawl and stop as soon as you can safely do so. 

It is hard for trucker drivers or trucking safety directors to run from either the Federal Motor Carrier Safety regulations or the CDL Manual when it comes to bad weather. The starting point is always the FMCSA.

Medicare Case, 9/29/10: Bradley v. Sebelius

Just came out at the end of last  week,  11th Circuit. Excerpts include:

The facts of this claim against a Florida nursing home for neglect and abuse are simple and not in dispute. However, the question of law as to the interplay between the Florida Wrongful Death Act (FWDA) and the federal Medicare Secondary Payer statute (MSP) is an issue of first impression in this court.

The deceased has been placed in a FL nursing home, and during the deceased's approximate three (3) month hospital stay, the Secretary of the Department of Health and Human Services (Secretary or HHS), on behalf of Medicare, paid $38,875.08 for Burke's medical care.

The Administrator  settled the wrongful death tort claims for $52,500, the full amount of the nursing home's liability insurance policy limits.Settlement was made without filing suit. The nursing home tendered the settlement amount and the party executed a release of all claims of the estate and the surviving children against the nursing home and its liability insurance carrier.

The total, undifferentiated amount of the settlement was $52,500.00. The issue of first impression in this case is therefore: “Whose property is the settlement?” The settlement involved the medical expenses and costs recovered by the estate (and subject to the MSP statute), along with the non-medical, tort property claims of the surviving children for lost parental companionship, etc., under state law, (and not subject to the MSP statute).

Under Florida law, any claim of the estate is separate and distinct from the claim of a survivor. All loss of consortium or companionship recoveries are the property of the person who incurred the loss. Not the Secretary of HHS. A child's loss of parental companionship claim is a property right belonging to the child, not the Secretary of HHS. The children's loss of parental companionship claims do not include the decedent's medical expenses, as a claim for medical expenses belongs only to the estate. Only the estate's allocated share of the proceeds is subject to the province of the Secretary.

The Court wrote, "There is a particularly troubling sub-issue contained in this appeal.... "
 

"The Secretary declined to take any part in the litigation although at all times her position was adverse to the interests of the surviving children. The probate court made the allocation, finding that the Secretary should recover the sum of $787.50. Yet, still, the Secretary, citing no statutory authority, no regulatory authority, and no case law authority, merely relied upon the language contained in one of its many field manuals and declined to respect the decision of the probate court."

The Court went on to write: "The Secretary's position would have a chilling effect on settlement. The Secretary's position compels plaintiffs to force their tort claims to trial, burdening the court system. It is a financial disincentive to accept otherwise reasonable settlement offers. It would allow tortfeasors to escape responsibility."

Only on Westlaw as of this writing.  

Tech: My Office Arsenal

Image via WikipediaWe have tried - as a smaller law firm (less than 30 employees) to stay ahead of the curve in tech and law office matters. I get asked often what we  use, so here is a laundry list of items:
Hardware:
Redundant Servers
Scansnap for desktop scanning (one on my desk too)
Copiers with high speed scanning, direct email
and FTP
Stamps.com for desktop postage use
HP intermediate level copier in back office
iPad
Flip Video HD
Software:
We're always trying the cheap/free stuff, and it seems I'm the beta tester/guinea pig. Here is what seems to work for us:
Database Management: Abacus
Word and OpenOffice
Mozilla for web use
Inbit secure instant messaging (encrypted):
Onebox: Document management  in the cloud.
 
Dropbox: Sharing of documents on projects involving more than one office.
Skype (for me on the iPad/iPhone)
Tweetdeck: While I don't see Twitter yet serving as a client development source, for news it's helpful in some respects, and Tweetdeck keeps me from going crazy following too many diverse folks.
Yousendit.com: For sending large/huge files
Simulscribe for dictation (by far the best/most reliable item we regularly use)
On the iPad/iPhone so far:
iAnnotate
Pages
Echofon
Skype
Line 2
LawStack
Pandora
Dragon Dictation
Logmein
Fastcase
Duo Browser
Google Mobile
I'll be adding to this list during the week. 

Fosamax: Verdict Set Aside, Plaintiff's Counsel Sanctioned

Image via WikipediaIn Federal Court, the Judge has released opinions in all the Fosamax^® ONJ post-trial matters pending n the federal District Court located in Manhattan. The Judge hammered Plaintiff’s counsel with an on-the-record dressing down in a published opinion.

Keenan ruled that the $8 million verdict was unreasonably high. He said Boles may choose between a reduced award of $1.5 million or a retrial to determine damages.

“A significant damage award is warranted, but the $8 million deviates substantially from what would be reasonable compensation,” Keenan wrote.

Merck said it will appeal Keenan’s refusal to throw out the verdict entirely or to order a new trial.

More here

Johnson & Johnson Children's Meds to Return

After an almost five-month absence from stores, Johnson & Johnson will start shipping some of its recalled over-the-counter children's drugs to retailers next week, CEO William Weldon said in prepared remarks submitted to lawmakers Wednesday.
Weldon said that there would only be a limited amount of the medicine available and Johnson & Johnson declined to specify exactly which of the recalled products would arrive in stores next week. The products will be produced by J&J's Canadian affiliate.

A total of 4 million bottles will eventually hit the market by year end.

Link:
http://money.cnn.com/2010/09/29/news/companies/johnson_ceo_testimony/index.htm

Avalide Recall

Image via WikipediaBristol-Myers Squibb Co is recalling 60 million tablets of the blood pressure medication Avalide in the United States and Puerto Rico.

The company said it took the action on behalf of the Bristol-Myers Squibb/Sanofi-Synthelabo partnership because of a potential variability in levels of the less-soluble form of the active ingredient in Avalide, irbesartan, which could result in slower dissolution.

Bristol-Myers said 62 lots, or 60 million tablets, manufactured before November 2009 at its plant in Puerto Rico were affected by the recall.

Avalide is comprised of the drugs irbesartan and hydrochlorothiazide. The recalled tablets contain 300 mg of irbesartan and 25 mg of hydrochlorothiazide

From Today: Did Drugmarker Hide Birth Control Patch Risks?

Visit msnbc.com for breaking news, world news, and news about the economy

FTC: Health Claims in Pom Juice Ads Deceptive

Image by bitchcakesny via Flickr The F.T.C. charged Pom Wonderful, which markets the juice, and the company’s owners, the billionaire philanthropists Lynda and Stewart Resnick of Los Angeles, with making false and unsubstantiated claims about the power of their pomegranate elixir.

In a complaint that seeks to prevent the company from making any further medical claims unless they are substantiated by the Food and Drug Administration, the commission said the company ignored evidence that contradicted its claims that the juice could help prevent or treat heart disease, reduce the risk of prostate cancer and overcome erectile dysfunction.

Link: 

FDA warns three companies to stop making unproven claims on mouth rinses

Image via WikipediaThe FDA today issued warning letters to three companies that manufacture and market mouth rinse products with claims that they remove plaque above the gum line or promote healthy gums. These claims suggest the products are effective in preventing gum disease when no such benefit has been demonstrated.

Warning letters were sent to, Johnson & Johnson (Listerine Total Care Anticavity Mouthwash), CVS Corporation (CVS Complete Care Anticavity Mouthwash), and Walgreen Company (Walgreen Mouth Rinse Full Action).

These mouth rinse products contain the active ingredient sodium fluoride. The FDA has determined that sodium fluoride is effective in preventing cavities but has not found this ingredient to be effective in removing plaque or preventing gum disease.

“It is important for the FDA to take appropriate enforcement action when companies make false or unproven product claims to ensure that consumers are not misinformed or misled,” said Deborah Autor, director of the Office of Compliance in FDA’s Center for Drug Evaluation and Research.

Under federal law, a company cannot claim its product is effective in treating a disease unless those claims have been reviewed and approved by the FDA in a new drug application or the active ingredient has been generally recognized as safe and effective for these claims in an over-the-counter (OTC) drug monograph.
The FDA actions are part of the agency’s effort to curtail an increasing number of Federal Food Drug and Cosmetic Act (FFDCA) violations among the makers/marketers of mouthwashes concerning unproven claims of therapeutic benefits.

To date, the FDA is unaware of any injuries or adverse health effects related to the use of these mouth rinse products. Consumers who have these products may continue to use the products for cavity prevention without risk of injury but should be aware that the FDA has no data to show that these products can prevent gum disease.

Companies that received FDA warning letters are required to take appropriate action to correct these violations within 15 days.  Failure to do so may result in seizure of the product, or other civil or criminal penalties

http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm227522.htm

Informal Social Media Group of Attorneys

Guest Post: How Going to Uganda Changed My Perspective

Not law related, from a friend who had a life changing experience:

My Paradigm Shift by Michael G:

For nearly a decade I had heard many stories about the people of Uganda and their amazing spirit and loving attitudes.  My parents relayed their many experiences to me and to the rest of our family. I felt as though I knew our African friends even though I’d never stepped foot on the continent.  I finally had the chance to do that, and it was a trip I almost didn’t take.

Thankfully I eventually came to my senses and realized that life here in the States would certainly go on without me, and that passing up an opportunity to join Jenn (my wife) and both my parents on what I knew would be an amazing and possibly once-in-a-lifetime experience would have been a big mistake.  Little did I know just how true that would be.

No story my mother could have ever told me about the place would have done proper justice to what I learned and witnessed with my own two eyes.  The Ugandan people are wonderful, so caring and welcoming.  The whole experience gave me a newfound perspective on life

We as Americans are constantly bombarded and made so incredibly aware of all that we don’t have, rather than thankful for all that we do. We like to focus on that new gadget or latest “thing” that we feel must have rather than being thankful that we never have to worry about the basic necessities needed to live our day-to-day lives.  Meanwhile, in a place like Uganda – where poverty is the norm – basic necessities: shelter, clothes, food and water to sustain oneself, don’t come so easily.  So the contrast between a culture like ours – where abundance is commonplace – and theirs is quite stark.

This difference in our cultures was evident on our first day at KIDA when we witnessed the joy on the faces of the couple of dozen adults who received our donated tee-shirts.

And that wasn’t anything compared to the reactions we got from the children after we handed out some pencils.  It’s hard to imagine a child in this country getting very excited about a seemingly insignificant give-away, but not so in Uganda.  It immediately made me feel really good to know that what we do for these people, even when it’s small, is so appreciated.

What made the trip for me was not just being there to give away a few freebies.  That sort of thing can only get you so far.  No, it was witnessing first-hand all of the truly empowering and self-sustaining programs KIDA is able to provide to the people in the rural Kitojo community–-programs made possible with donations from the Friends of Ruwenzori.

Reverend Ezra, the founder and director of KIDA whom I finally had the great pleasure of meeting and spending time with, is a tremendous leader and visionary.  He, with great wisdom, subscribes to the theory that giving a man a fish accomplishes little more than to satisfy his appetite that day….for he will be hungry again tomorrow as well.  And creating a dependency on handouts serves no one in the long run.  But instead Ezra’s knows that teaching the man or woman the skills to fish will help him sustain himself for many days to come.  That philosophy is quite prevelent at KIDA and can be seen through all the wonderfully impactful vocational programs being taught on a daily basis.

Having witnessed so much of the important work being done by KIDA makes me feel really good about the role we are playing in supporting their efforts through our Friends of Ruwenzori donations.  I also saw, during my time in Uganda,  just how much can still be done.  KIDA is making a huge difference in their community, and they’re doing it the right way through noble works and with true accountability. But so much more can be done.  And so much more needs to be done.  Only a certain number of people can be helped on a limited budget, and that is precisely why we must continue to do our part to expand this model organization as much as possible.  I urge everyone who has the means to help. So please do what you can.  Giving has been quite sparse this year and my mother is worried that KIDA’s programs will suffer. 

If you choose to visit KIDA in person one day, I know you will be amazed at the work being done in this remarkable community. I believe you will also notice changes in how you view the opulence of our American society, as I did.  You will see how handouts can create dependency, but how training empowers the poor to take care of their own lives.  I was so inspired to see this happening in Africa.

Well done Mike.

Friends of Ruwenzori Foundation • c/o Karen and Gil Gleason • 8 Altamount Drive • Orinda, CA 94563
gilgleason@comcast.net • (925) 376-0519 •  www.friendsofruwenzori.org

Image via WikipediaHalf of the 21 drugs pulled from the market in the U.S. for safety reasons since 1995 involved heart complications.



The drugs recalled since 1995 because of heart risks include Roche Holding AG’s blood-pressure treatment Posicor in 1998, Johnson & Johnson’s antihistamine Hismanal in 1999, and Merck & Co.’s painkiller Vioxx in 2004. The average time to recall was 8 years, according to data compiled by Bloomberg.


Vioxx, used to treat arthritis, was recalled by Whitehouse Station, New Jersey-based Merck after five years of marketing when a study suggested the drug doubled the risk of heart attacks after 18 months of treatment. An earlier study published in 2000 suggested the medicine posed heart risks and led to calls for further research into the drug’s side effects.

Avandia, once the world’s best-selling diabetes drug, was linked to a 43 percent higher risk of heart attacks in an analysis released in 2007, eight years after its approval. Glaxo, of London, said last week that it would stop promoting the drug as a result of new FDA restrictions and European regulators’ decision to withdraw the product completely.

Meridia, a 13-year-old diet pill, was tied to 16 percent more major cardiovascular complications in a six-year study of 10,000 patients released this month. Abbott Park, Illinois-based Abbott no longer promotes the drug in the U.S.


Read more here:http://www.bloomberg.com/news/2010-09-28/recalled-drugs-tied-to-heart-risk-spurs-call-for-fda-review.html

Why the EU banned Avandia but the FDA Didn't

From Fortune and CNN/Money:


Avandia has taken some beatings over the years, but it pretty much took a fatal blow yesterday. That's when the Food and Drug Administration ruled to keep the drug on the market in the United States with some serious restrictions.
Those being: GlaxoSmithKline (GSK), the drug's manufacturer, can't promote it. Patients currently on the drug will be advised to switch to another similar treatment, if possible. Doctors can't prescribe Avandia to new patients without explaining in detail why it might be more likely to cause a heart attack than other options. The FDA basically mandated everything short of putting a skull and crossbones on the label. But here's the rub: The European Union's European Medicines Agency dispensed with the subtleties and outright banned Avandia from being sold. Why didn't the FDA?

For more go here.  http://money.cnn.com/2010/09/24/news/companies/FDA_Avandia_GSK_ban.fortune/index.htm?section=money_latest&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%253A+rss%252Fmoney_latest+%2528Latest+News%2529

Abbott Voluntarily Recalls Certain Similac® Brand Powder Infant Formulas

Image by The Consumerist via FlickrAbbott is initiating a proactive, voluntary recall of certain Similac-brand, powder infant formulas in the U.S., Puerto Rico, Guam and some countries in the Caribbean.Abbott is recalling these products following an internal quality review, which detected the remote possibility of the presence of a small common beetle in the product produced in one production area in a single manufacturing facility. The United States Food and Drug Administration (FDA) has determined that while the formula containing these beetles poses no immediate health risk, there is a possibility that infants who consume formula containing the beetles or their larvae, could experience symptoms of gastrointestinal discomfort and refusal to eat as a result of small insect parts irritating the GI tract. If these symptoms persist for more than a few days, a physician should be consulted.
The recall of these powder infant formulas includes:

• Certain Similac powder product lines offered in plastic containers.
• Certain Similac powder product lines offered in sizes such as 8-ounce, 12.4-ounce and 12.9-ounce cans.

To immediately find out if the product in your possession is included in this recall, parents and caregivers should visit www.similac.com/recall⁹, and type in their lot number to determine if their product is affected, or call (800) 986-8850.
No Abbott liquid infant formulas are impacted. Products not involved in the recall include all Abbott Nutrition liquid ready-to-feed and concentrated infant formulas and all powder and liquid specialty formulas, such as Similac Expert Care™ Alimentum®, Elecare®, Similac Expert Care™ Neosure®, Similac® Human Milk Fortifier, and metabolic formulas for inherited disorders.
About the Recall

• The company is implementing a plan to address this matter in the affected manufacturing facility, which is expected to be completed shortly. No other facilities or products are involved in this recall.
• Abbott has consulted with the U.S. FDA regarding this recall.

Panel asks if FDA knew about Secret J&J recall

Image via Wikipedia
From Reuters:


The House Committee on Oversight and Government Reform on Tuesday said it had obtained an email in which an executive of J&J's McNeil consumer medicines unit described an agreement with the  FDA authorizing J&J to conduct an unpublicized recall of adult Motrin.

The committee said the agreement purportedly allowed McNeil to forgo a publicly announced formal recall of the Motrin product and to instead conduct a "soft market withdrawal." The committee for months has been examining what it describes as the "phantom recall" of Motrin, in which contractors quietly bought up stocks of the painkiller from store shelves.

The committee on Tuesday released a copy of a May 27, 2009, email from a McNeil executive to numerous colleagues, which cites a negotiated agreement with the FDA consenting to an unofficial recall of Motrin.
"This was a major win for us as it limits the press that will be seen," the email said, adding the company had promised the FDA to complete the informal recall by July 15.

Read more here http://www.reuters.com/article/idUSTRE68K5K020100922

IPhone: Florida Law App

Image by TerryJohnston via Flickr
I just ran across the Florida laws application for the iPhone from www.legalmesh.com.


It's worth a look From the site:

Search the statutes the way you want - keyword, statutory language, or browse the chapters to reach what you need. If you know where you want to go, just type in the chapter or section to jump right there. Get to the statute you need quickly and intuitively.