Squeezed On: October 30, 2007

Doctor Accused of Medical Malpractice Disappears

The Arizona Republic reports that an Arizona doctor whose license was recently revoked after three people died during or after liposuction procedures has disappeared. The doctor is facing not only wrongful death medical malpractice cases but also is wanted for questioning by the police.

This might spell yet another disaster for the families bringing wrongful death medical malpractice claims because the insurer may well disclaim coverage because the doctor is not cooperating with the defense. The plaintiffs' medical malpractice lawyer will argue that his absence does not practically prejudice the case because the malpractice was so clear. But this is a tough argument.

This does not happen often but there should be a means of obtaining compensation in the rare cases where this does happen.

Squeezed On: October 29, 2007

Prince George's County Circuit Court Opening

Fourteen people have applied to fill the current vacancy on the Circuit Court for Prince George's County. I believe the Trial Courts Judicial Nominating Commission will be receiving the results of the balloting conducted among members of the bar shortly. Below is an alphabetical list of the candidates:

Hon. Krystal Quinn Alves (District Court for Prince George's County)
Hon. Hassan Ali El-Amin (District Court for Prince George's County)
Blake Minoru Fetrow, a family law attorney in Riverdale, MD
Manuel Robert Geraldo, a general practice attorney in Greenbelt, MD
Hon. Leo Edward Green (District Court for Prince George's County)
Thomas Anthony McManus, an Upper Marlboro attorney
Hon. Crystal Dixon Mittelstaedt (District Court for Prince George's County)
Richard Allen Moore, II, a public defender in Prince George's County
Erik Howard Nyce, a Lanham insurance defense attorney
Nicholas Elias Rattal, a public defender in Prince George's County
Hon. Thurmond Haywood Rhodes(District Court for Prince George's County)
Jerroly Patricia Wilson Smoot, a State's Attorney in Prince George's County
Hon. Beverly Jean Woodard (District Court for Prince George's County)
Hon. Joel David Worshtil (District Court for Prince George's County)

Squeezed On: October 24, 2007

Topps Meat Recall

Federal regulators are pointing the finger directly at Topps Meat claiming that a Topps Meat factory neglected critical safety measures in a rush to fulfill orders. As a result, thousands of frozen hamburger patties contaminated with E. coli were put in the marketplace. This Topps meat recall, which was the second largest recall in our nation's history, and a spate of recent recalls like it have raised questions as to whether the food industry has been given too much freedom to regulate itself.

Nothwithstanding the debacle of the meat recall, there is some logic to allowing the food industry to largely police itself. In contrast to the pharmaceutical industry where defective drugs and medical devices seem to be an acceptable cost of doing business, given the high profit margins of pharmaceutical drugs, there does seem to be a greater backlash against food companies for putting unsafe food into the marketplace. Topps Meat essentially went from being one of the leading meat producers in the world to going out of business as a result of this meat recall. Certainly, every other food producer will take notice.

Squeezed On: October 23, 2007

Medtronics Defibrillator Lead Recall: Where Was the FDA?

The Medtronics defibrillator lead failures have again raised the issue of whether the FDA’s testing procedures are sound. A congressional oversight committee will review the FDA’s testing procedures for the Medtronics recalled wire component of its defibrillator, which has been linked to at least five patient deaths.

In an letter to FDA Commissioner Andrew von Eschenbach, Henry Waxman (D-CA) requested a thorough timeline of the recall and an overview of how FDA approves so-called "supplemental" parts of medical devices. "Please describe the process by which FDA approves all defibrillator leads," Congressman Waxman's letter states. "Specifically, please explain whether FDA would approve a defibrillator lead under a distinct (pre-market approval) or as a supplement to a PMA for another device." Waxman also cited reports that the FDA did not require Medtronic to submit clinical trial data on these recalled leads and requested an explanation for the FDA's failure to do so.

Certainly, the FDA needs to do its part in analyzing the safety efficacy data on these products. But it the end, the burden lies with Medtronics to do all that it can to make a safe product. The race to get these products on the market is furious. Medtronics and other medical device companies selling defibrillators rush out new defibrillators that may be technologically superior, but with no proven history of safety and reliability, because they want more market share. The FDA does not have time, energy, manpower, whatever, to properly evaluate the safety of the product. Yet at trial, you can bet that Medtronics defibrillator recall lawyers that are representing the victims will hear one defense theme over and over: “FDA approved.” The solution to this problem would be to exclude evidence of the FDA approval; it is of limited probative value to demonstrate safety of the product, and it is likely to mislead the jury, because they may incorrectly assume the FDA approval process is more vigorous than it really is. I think this is a reasonable solution to this unfair hurdle that plaintiffs’ pharmaceutical lawyers must face in every case.

Squeezed On: October 16, 2007

Prempro Verdict

Yesterday, a Nevada jury awarded $99 million in punitive damages to three women who claimed their breast cancer was caused by Wyeth’s hormone replacement drugs Premarin and Prempro. The jury had originally awarded $134.5 million, which was reduced to $35 million after the jury indicated that the original verdict had also included punitive damages. So in the punitive damages phase, the jury tacked back on the $99 million.

These are 3 of the more than 5,000 lawsuits that have been filed around the country involving Premarin and Prempro, which are hormone replacement drugs intended to ease the symptoms of menopause.

A national study of hormone replacement therapy that had been conducted by the Women's Health Initative in 2002, found that Prempro increased the risk of a number of ailments, including stroke, heart disease, and breast cancer. Incredibly, these drugs remain on the market.

Squeezed On: October 11, 2007

Oklahoma Jury Verdicts

According to a Jury Verdict Research study that came out this week looking at jury verdicts from 2000 to 2006, Oklahoma would at first glance appear to be an awful place for lawyers to try personal injury cases. The median compensation award in trial in Oklahoma is $6,824 and plaintiffs receive a recovery in only 43% of personal injury cases that go to a jury. Compared to the national data, these figures are awful.

If you are an Oklahoma personal injury lawyer with a seriously injured client, does this mean you do not have a fair chance of getting a fair and meaningful recovery for your client’s injuries? I don’t think so. A full 10% of verdicts in personal injury cases in Oklahoma were for $500,000 or more. While to some extent this is comparing apples to oranges, only in 1% of motor vehicle accident cases in Maryland does the jury award more than $500,000.

This number of significant jury awards leads me to believe that Oklahoma juries may not be awarding significant damages in soft tissue injury cases or other cases where the harm may be less significant, but they will often give fair compensation to the people that really do need it the most: people who lives have been forever changed due to the negligence of someone else.

Squeezed On: October 10, 2007

Allstate Bad Faith Trial in Kentucky: Former Allstate Claims Supervisor Testifies

A former claims adjuster supervisor at Allstate Insurance testified in a first party bad faith case in Kentucky that Allstate strong armed injury victims and bullied them into taking less than fair value for their personal injury cases. According to the former Allstate manager, the company changed its paradigm in 1995 and created a "dehumanizing process" where the only goal was maximizing profits.

The former Allstate employee made a few other claims of note. First, if Colossus, the computer program that evaluates the value of personal injury claims, came out with a value not to Allstate's liking, the adjusters would manipulate the data so it produces a lower figure. Adjusters who paid out too much were punished in their evaluations. This adjuster also testified, as I have written about in the past, that Allstate keeps track of which plaintiff personal injury lawyers are willing to go to trial and who simply settles for the best possible offer.

I'm sure all of these allegations are true. But Allstate is hardly the only insurance company that puts profits first and tries to pay as little as possible nor is it the most egregious practitioner of this art. Insurance companies by their inherent nature are good at accepting premiums and bad at playing claims. Bobby Kennedy, one of my idols, said, “Some men see things as they are and ask why. I dream of things that never were and say why not?” When it comes to insurance companies, I am no Bobby Kennedy. I don’t even bother to ask why nor do I take great umbrage at their tactics, even with bad faith laws. It is what it is and it is not going to change. Thankfully, in the adversarial system, there are remedies to the insurance companies’ refusal to pay fair value on claims.

Squeezed On: October 3, 2007

Bruce Bereano and Bill Belichick

Caryn Tamber writes a fascinating article in the Maryland Daily Record today on lobbyist Bruce Bereano’s challenge of the suspension of his Maryland lobbying license.

The State Ethics Commission fined Mr. Bereano $5,000 and suspended him for 10 months as the result of Bereano’s violation of Maryland law, which does not allow lobbyists to work on a contingency fee basis. Mr. Bereano’s lawyer argued that his client cannot be fined and suspended, because he signed the agreement for a contingency fee before the sanctions law went into effect (although it is worth noting that at the time of the agreement, the contingency fee deal was a crime under Maryland law).

Mr. Bereano is no stranger to trouble with the law. He was convicted in 1994 of eight counts of federal mail fraud charges for essentially skimming money from clients to make campaign contributions to political candidates, although I don’t think his clients particularly objected.

None of this is particularly interesting to me. What is fascinating to me is that the Maryland Court of Appeals deciding the case will be composed of only two active judges and five retired judges because Judge Robert M. Bell, Judges Irma S. Raker, Lynne A. Battaglia, Alan M. Wilner and Dale R. Cathell all recused themselves. They were replaced by retired judges James Getty, William W. Wenner, Lawrence F. Rodowsky, Robert L. Karwacki and Raymond G. Thieme Jr.

Five of the judges? This is a guy who knows people, let me tell you. He apparently continues to flout the law. Scandal follows him everywhere. Yet he still counts most political elite in Maryland among his closest friends. I remember reading in 1999, when he got out of jail, about how the many influential Maryland politicians were there to meet him as he walked out of prison. Folks, that’s what I call influence.

The two people I’m most interested in today are New England Patriots coach Bill Belichick and Bruce Bereano. Belichick fascinates me because he has just awful people skills, which is usually a recipe for disaster for almost any profession, much less an NFL coach. Moreover, by every account I have ever heard, he is just a miserable human being without a great deal of integrity. I’m very interested in how people with such glaring weaknesses can still have such great success. Yesterday, I bought the late David Halberstam’s biography of Belichick to try to get some insight into him. With Bereano, obviously he does not need to do this stuff to be successful, so why do it?

We need to learn more about what makes this guy tick. So I’m not asking for, I’m demanding someone write a biography of Bruce Bereano.

Squeezed On: October 2, 2007

Maryland Docket Search

This website provides case records of pending case in the Maryland Judiciary.

Squeezed On: October 1, 2007

Arbitration/Settlement of Employment Discrimination Cases

I read a 2003 ABA Journal article last night looking at a 1995 study that compared settled, litigated and arbitrated employment discrimination case outcomes. I found another article that makes the same claim (click here). That study found that both median and average jury verdicts in discrimination cases were at least three times higher than the comparable mean and median arbitration awards. I am not surprised to see a difference but three times higher is pretty stunning. These private arbitral systems seem to be structurally biased, as the EEOC called it, in favor of employers.

Today, Jury Verdict Research reports on its study examining trends in settlements involving discrimination claims from 2000 through 2006. The overall settlement median for employment discrimination claims was $70,000. Plaintiffs' settlements for disability and race discrimination claims were similar with a median settlement of $75,000.

There is one thing I find interesting about labor and employment litigation lawyers. If you are looking for a labor and employment lawyer in Maryland who defends management, you can find a million and one. Yet it seems like there are 1/100 the number of plaintiffs' employment lawyers in Maryland. If it takes two to tango and we are talking about litigation, don't the numbers of labor and employment lawyers on the defense and plaintiffs' side have to equally balanced? Even if you allow for the "it takes 5 defense lawyers to defend a deposition" phenomenon, I still cannot figure out the extent of the asymmetry.

(And, yes, if you are wondering, this is the day for quick short posts on the Maryland Lawyer Blog. I have some backlog of thoughts from the weekend.)

Squeezed On: October 1, 2007

Goldberg, Finnegan & Mester: New Blog on Maryland Law

Goldberg, Finnegan & Mester has started a new blog on Maryland personal injury law. These guys are good lawyers and friends of our firm and I highly recommend adding this blog to the list of personal injury blogs you regularly read.

Squeezed On: October 1, 2007

Employment Law Developments in Maryland

Four lawyers at Kollman & Saucier, whose practice focuses on labor and employment law, will be giving a seminar for Lorman Education Services at Inner Harbor Holiday Inn on December 5, 2007. I would imagine one of the topics will be Maryland's new law, that is effective today, that allows for suit by Maryland employers in state court for discrimination. Maryland's law is more expansive than federal law because it allows claims for discrimination claims based on sexual orientation, family status, and marital status.

Squeezed On: October 1, 2007

Topps Meat Recall Lawyers

The Maryland Injury Lawyer Blog posted detail last week on the Topps Meat recall. You can click here for more information.