Trial Attorney Blog

Companies that produce dangerous products suffered a major defaet last week in the United States House of Representaatives. By a vote of 407 to 0, the House of Representatives passed legislation reauthorizing the Consumer Product Safety Commission (CPSC) and included statutory language specifically prohibiting the CPSC from issuing any rule or regulation that expands the scope of federal preemption of state law.

During the Bush administration, the CPSC has issued rules and regualtions which it argues preempt state laws governing dangerous products, thereby depriving innocent parties injured by these products from seeking redress in the courts. Obviously, based upon the vote, both Democratric and Republican lawmakers in the House recognized the dangers of this practice.

Seeking to end this unfair practice, the House Energy and Commerce Committee included specific language in the Committee Report, which is the official statement of congressional intent. The Committee Report language formally and specifically disapproves the CPSC’s effort to override state common law by including preemption language in preambles to its proposed rules and final rules. Specifically with regard to preemption language in the preamble to a recently issued rule on mattress flammability, the Report states “this preamble should not be accorded deference by State or Federal Courts.”

Bad faith insurance claims have always been difficult because the insurance industry has routinely been able to hide behind restrictive laws designed to protect them from even egregious conduct. However, a case pending in Missouri may change this situation.

A Jackson county Missouri trial judge issued an order directing Allstate Insurance Company to produce records which the Plaintiff lawyers allege show how Allstate set up a claims payment system in the 1990s that shortchanges clients while earning huge profits. Despite the judges directive, Allstate refused, and drew a $25,000 per day fine from the judge. The fine, which began in mid-September is now approximately $2.4 million.

Last month, the Missouri Supreme Court ordered the documents produced, but Allstate, has stated it will not produce these records for public view no matter how much the court fines it.

Our serious injury lawyers often request information from governmental agencies in efforts to help our clients. Many times, despite laws requiring disclosure, our requests are routinely denied or ignored.

The Bush administration has consistently pushed toward secrecy in government. Former Attorney General John Ashcroft had issued an order instructing agencies to lean against releasing information if there was any uncertainty about how it would affect national security.

Now the Congress is fighting this trend by passing legislation which would expand the Freedom of Information Act ( FOIA), increase penalties for noncompliance and make records held by government contractors subject to disclosure.

A disturbing study by the Massachusetts General Hospital was reported in the December 6, 2007 issue of the Harvard Crimson Newspaper. The paper reported that the study disclosed that nearly half of the doctors surveyed are more likely to protect their colleagues than their patients. Forty percent of the doctors admitted to not reporting a serious medical error they had witnessed. Likewise, forty-five percent admitted to not reporting a physician who they knew to be impaired or incompetent.
Additionally, the study found that the physicians had failed to live up to standards in preventing the waste of medical resources, with over one-third accommodating the patient who insisted on a test the doctor knew was unnecessary. Doctors were also revealed to be very poor at managing economic conflicts, with the majority saying they would refer patients to facilities in which they had financial stakes. Nearly one-quarter of the doctors stated they would not inform the patient of this potential conflict, even though such activities could be considered illegal under medicare rules.
The researchers interviewed 1,662 practicing physicians including three groups of primary care doctors, – internists, family practitioners and pediatricians and three groups of specialists, – surgeons, anesthesiologists and cardiologists.

We have previously written about mandatory arbitration clauses. Just a few years ago, Congressional Republicans made it a priority to limit almost all litigation against businesses. Now, legislation is advancing which could make it easier for consumers to have their complaints heard in the courts. At issue is the fine print in many contracts for goods and services, such as credit cards and cell phones, requiring that any disputes be submitted to arbitration by a third party. Critics of these provisions contend that they deny consumers a basic American principle, the right to go to court. Business groups argue that arbitration clauses prohibit costly litigation which only generally benefits lawyers. Consumer advocates counter that these clauses are unfair, arguing that the arbitration process often favors businesses, because arbitration firms rely on the companies for repeat business and are not inclined to rule against them.
The most controversial piece of legislation pending before Congress was introduced by Georgia Representative Hank Johnson. This legislation would make arbitration voluntary in all consumer, employment, franchise and medical contracts. Johnson reported that he introduced the measure after he considered building a home and found a mandatory arbitration clause in every home construction contract he was presented. Johnson said parties in dispute should be free to turn to the Courts, arguing that mandatory arbitration amounts to a private judicial system that benefits commercial interests at the expense to consumers.
As an example, at one of Johnson’s hearings, the owner of a coffee franchise in Annapolis, Maryland reported that an arbitration with a coffee company took place in Michigan, 5,000 miles from her home and cost her more than $100,000. She was quoted as saying “we never knew how precious our constitutional rights were until they were stolen from us by a binding mandatory arbitration clause.”

Our motorcycle accident injury attorneys have successfully concluded a case involving a young man who lost control of his motorcycle in Carrollton, Georgia in May of 2005. The client was operating his motorcycle in the City of Carrollton near the Southwire Plant. As he approached a curb in the road, the lane was littered with gravel, dirt and other debris. The client had a split second to decide what action to take. Instead of attempting to engage his brakes, which he felt would result in disastrous consequences, he elected to attempt to ride through the debris. As he did, he lost control of the motorcycle, slid a distance on the concrete, and impacted with the curb.

The evidence established that in the immediate vicinity of the incident, the City of Carrollton had previously replaced a fire hydrant and a water meter as well as removed and replaced a concrete curb. According to the testimony, this work was completed approximately three months prior to the incident with our client.

Our attorneys alleged that the city was negligent in backfilling the area behind the curb and allowing the debris to flow into the street, as well as a violation of statutory duty to keep the streets in repair and safe condition.

Having seen past injuries and deaths occur because theater safety principles were disregarded in using orchestra pits in Atlanta, our Georgia Injury Lawyer Blog attorneys shuddered upon reading that it had happened again in Atlanta. A 17 year-old dancer wearing a Panda costume reportedly suffered critical injuries when she fell some 12 feet into the lowered orchestra pit of the Fox Theater, during a performance of the “Nutcracker” by the Atlanta Ballet.

The orchestra pit contained no orchestra, but was apparently lowered to this great depth anyway, without “fall protection” measures that were sufficient to prevent such a long fall by the young dancer, a high-school student. As it should, OSHA is reportedly investigating the incident.

For our attorneys, it brought back lessons that should have been learned in the theater world when a young boy died after a fall in 2000, through a concealed opening into the unprotected orchestra pit at the Atlanta Civic Center. He survived in a coma for more than a year as he was cared for by his parents, two of our most remarkable clients ever.

Our dangerous drug attorneys often review cases in which an inappropriate drug was prescribed for a patient. Public Citizen is a national, nonprofit consumer advocacy organization founded in 1971 to represent consumers’ interest in Congress, the executive branch and the courts. In the latest newsletter from The Health Research Group, a division of Public Citizen, there is an interesting article concerning direct advertising by pharmaceutical companies.

The article points out that other than New Zealand, the United States is the only country that allows direct to consumer advertising by pharmaceutical companies.

According to Public Citizen, the drug companies have become masters at targeting patients and spurring prescriptions through these ads. Most of the time, the ads encourage patients to use newer medications, exposing them to drugs with weaker safety records, and driving up the cost of health care. The ads have also been shown to omit important safety information, while attempting to transform patients into agents of the drug companies pressuring physicians for drugs they see celebrated between television shows.

Last week, two Georgia nursing homes were added to the list of the worst in the country according to federal data.

The Place at Augusta and Shoreham of Marietta were cited for deficiencies and placed on the list of the worst nursing homes in the country by the Centers for Medicare and Medicaid Services. These two homes in Georgia were among 54 nursing homes in 33 states that failed to improve quality of patient care and/or administrative services over the last year.

According to the report, The Place at Augusta has been on the special focus list for 34 months, and Shoreham of Marietta for 21 months. The Centers for Medicare and Medicaid Services compiled this list and published it in an effort to pressure targeted nursing homes to improve.

The United States Supreme Court heard arguments yesterday in a case which may have a major impact on lawsuits against medical device makers brought by patients who have been injured by defective products. The Supreme Court will be asked to consider whether patients can bring lawsuits over defective devices which have been cleared for sale by the Food and Drug Administrations’ approval process. In this case, a federal appeals court barred a suit which claims a New York man suffered permanent injury when a Medtronic heart catheter burst during a heart procedure.

The decision of the lower court would undercut thousands of lawsuits, including cases over defibrilators made by Medtronic and Boston Scientific Corp. Guidant unit. The ruling may also shield Medtronic from suits over its recalled Fidelis defibrilator wires. In 1996, a divided Supreme Court allowed lawsuits over products approved through a separate Food and Drug Administration approval process that provided for fast-track reviews of devices. The case before the Supreme Court concerns a pre-market approval process which is a more intensive FDA review.

The Bush administration is not surprisingly backing the medical device makers in their argument that the federal pre-market system should preclude claims that companies ought to have done more to ensure safety.