Trial Attorney Blog

A few months ago there was a large amount of news coverage regarding the death of a woman from eating contaminated oysters at an Atlanta restaurant. Now, the Georgia Department of Agriculture is alerting consumers that norovirus has been found in some raw oysters harvested in Louisiana. Georgia Agriculture Commissioner Irvin announced that raw oysters harvested from the West Karako Bay Section of Growing Area 3 in Louisiana from Dec. 3 through Dec. 21 may possibly be contaminated with norovirus. Inspectors are looking for these oysters in Georgia retail and wholesale facilities.

The FDA has received reports of norovirus infection in seven people who ate raw oysters on Dec. 13 at a restaurant in Chattanooga, Tenn. The Tennessee Department of Health’s test results from two of the ill patients were positive for norovirus. The FDA confirmed the presence of norovirus in shell oysters harvested from the West Karako Bay section of Growing Area 3 and served at the Tenn. restaurant.

The Louisiana Department of Health and Hospitals closed the affected growing area on Dec. 21. The FDA is working with the states involved to determine if any additional actions may be necessary to ensure public health protection.

The Food and Drug Administration has issued a warning about fentanyl pain patches. The fentanyl skin patch contains fentanyl, a potent narcotic. The skin patch was approved by FDA in 1990 for use in patients with persistent, moderate-to-severe pain who have become opioid tolerant – meaning that they have been using another strong opioid narcotic pain medicine around-the-clock, and have been using the medicine regularly for a week or longer. The skin patch is most commonly prescribed for patients with cancer.

The FDA has continued to receive reports of deaths and life-threatening side effects after doctors have inappropriately prescribed the patch or patients have incorrectly used it.

In addition, the agency is asking manufacturers of all fentanyl patches to update their product information and to develop a medication guide for patients.

Drug manufacturer Genentech has been involved in a dispute with physicians over the use of its drug Avastin. Ophthalmologists became concerned last October when Genentech announced it was changing the distribution channels for Avastin, which would make it much more difficult for patients to receive the drug. Doctors accused the company of making the change to force the use of its more expensive drug, Lucentis.

Lucentis is approved to treat macular degeneration, a condition that causes blindness and is encountered frequently in elderly patients. It costs approximately $2,000 per injection. Most patients require monthly injections.

Many ophthalmologists have been Avastin, which is approved only to treat cancer, but works in the same way as Lucentis. Compounding pharmacies divide a vial of Avastin into small portions for use in the eye. In small doses, Avastin costs between $20 to $100 per injection.

As serious injury attorneys we frequently see cases in which insurance companies refuse to pay for treatment for their insureds, knowing that any appeal by the insured will take months, if not years, and that there is no legal remedy which can force the companies to offer timely treatment. In fact, in many cases the only legal remedy is that the company will be required to pay what they already owe, with no allowance for attorney fees and expenses. Unfortunately, in many cases the remedy comes too late.

An article was just published describing how a 17-year old died just hours after her health insurance company reversed its decision not to pay for a liver transplant that doctors said the girl needed. Nataline Sarkisyan died last Thursday night at University of California, Los Angeles Medical Center. Nataline had been battling leukemia and received a bone marrow transplant from her brother. She developed a complication, however, that caused her liver to fail.

Doctors at UCLA determined she needed a transplant. They sent a letter to CIGNA Healthcare on Dec. 11. requesting approval for the procedure. Cigna denied payment for the transplant. Last Thursday, about 150 teenagers and nurses protested outside a California CIGNA office. The company then reversed its decision and said it would approve the transplant. But, it was too late.

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.