Alabama Lawyer

Navistar Bus Recall

2011-12-30T04:13:00.000-08:00

Navistar, the manufacturer responsible for MaxxForce brand diesel engines, school and commercial buses, trucks, personnel carriers and vehicle parts, has recalled multiple school bus models because of safety defects. Navistar is based in Fort Wayne, Indiana, and manufacturers a number of heavy-duty vehicles for everything from construction and farm use to people and cargo conveyance. The BE and CE series buses are built by subsidiary IC Bus.

Navistar plans to initiate a recall for certain models year 2011 and 2012 IC RE school buses manufactured from February 4, 2010 until June 16, 2011 and 2011 and 2012 bus models IC RE made between August 24, 2010 and June 8,2011. The National Highway Traffic Safety Administration (NHTSA) issued a report that these models have a positive battery cable that might rub against the hydraulic cooler reservoir-mounting bracket. This defect could lead to an electrical short, which in some cases could result in a fire. No information was given as to how many buses may be affected by this defect. The New York Times reported that up to 15,500 buses could be affected by this recall.

Navistar also plans to recall approximately 340 buses with model years 2011 and 2012 CE and RE manufactured from October 8, 2009 until April 14, 2011 because they were made without, or with improperly installed, floor channel reinforcements. This means the buses do not conform with seat back rear force displacements requirements and raise the risk of passenger rearward ejection.

In December of 2011, Navistar recalled certain model year 2012 International Durastar and IC Bus HC Heavy trucks and buses manufactured from February 10, 2011, through February 18, 2011, that were equipped with a Meritor MFS08 Series Non-Drive front steer axle. During the assembly process, the steering attachment bolts may have been insufficiently torqued. Insufficient torque of the steering arm bolts may result in bolt fatigue and fracture and/or arm separation, thereby potentially resulting in loss of steering control and increasing the risk of a crash. No injuries were associated with these recalls. Navistar plans to notify owners soon and work with them to repair the buses free of charge.

Our firm is currently investigating claims for those people who have been by a recalled Navistar bus. If you would like a free case evaluation, please contact Booth Samuels at toll free 1-866-515-8880 or at booths@pittmandutton.com.

ILLINOIS CONGRESSMAN: NCAA = MAFIA

2011-11-02T08:06:00.000-07:00

Source: Fox News

Illinois Congressman Bobby Rush said Tuesday "I think you would compare the NCAA to Al Capone and to the Mafia."

Rush made the accusations at the forum called to look at the impact of "back-room deals, payoffs and scandals" in college sports. The congressman spoke after hearing from a couple of mothers of former student-athletes who complained of ill treatment by schools after their sons suffered injuries.

One mother, Valerie Hardrick, said the University of Oklahoma refused to grant a waiver for medical hardship that would allow her son, Kyle Hardrick, to play basketball at junior college after transferring from OU. Prior to Tuesday's forum, Hardrick's family provided to The Associated Press documentation showing that team doctors diagnosed him with a torn meniscus in his knee and wrote down on practice logs that he should be held out because he was hurt. Hardrick's family said the university has refused to pursue the waiver unless the family agrees to a settlement that would prohibit him or his family members from enrolling at Oklahoma or any of the universities governed by its board of regents. The proposed settlement also would prevent the Hardricks from filing a lawsuit against the university.

"My insurance does not cover all of Kyle's medical bills," an emotional Valerie Hardrick said. "The University of Oklahoma refused to pay for Kyle's surgery, his rehab, and his medication. The university actions also allowed Kyle to be released without appropriate medical treatment before consulting his original surgeon."

The NCAA requires schools to certify that an athlete has insurance coverage for athletically-related injuries, up to the deductible of the NCAA Catastrophic Injury Insurance Program (currently $90,000). The insurance coverage can be offered by the school, a parent or a personal policy of the athlete.

Two NBA players also participated in the forum, Thaddeus Young of the Philadelphia 76ers and Shane Battier, a free agent who last played with the Memphis Grizzlies.Battier described a college regimen at Duke that included a workout at 6:30 a.m., followed by classes, practice between 4 and 7:30 p.m., and wrapping up schoolwork at 11:30 or midnight.

"It is a full-time job," he said.

Battier called the NCAA's decision last week to allow conferences to provide student-athletes up to $2,000 in spending money "a great start."

"Is that a game-changer? No. What is a game-changer? A game-changer is guaranteeing four-year scholarships. That's a game-changer," Battier said. "A game-changer is, `If you commit to our school, and you graduate, we will pay for any graduate degree that you would like to pursue."'

Ramogi Huma, president of the National College Players Association, called the $2,000 a step in the right direction. But he said it shouldn't be optional, and that it still leaves a shortfall. His group has calculated the average scholarship shortfall for men's basketball and football at the Football Bowl Subdivision level at around $3,200.

J & J Mesh Product Based on Recalled Product.

2011-10-20T12:02:00.000-07:00

Source: Bloomberg

Pelvic Mesh treats incontinence and a condition called pelvic organ prolapse, in which internal organs slump into the vagina. They were allowed on the market as result of the agency’s approval process, known as 510(k), which relies on the notion that if one device has been cleared by the FDA then similar devices need little if any testing in patients.

The chain of approvals that began with Boston Scientific’s device highlight a key flaw in the 510(k) process, said Amy Allina, a policy director at the National Women’s Health Network, a Washington-based advocacy group. The system lets manufacturers win clearance for a product by citing its similarity to an already approved device, known in FDA jargon as a “predicate.” That second device can be cited as the basis for a third, the third to clear a fourth and so on.

“If a first iteration is recalled, they don’t necessarily look at the second, third or fourth things that are based on that,” Allina said in an interview. The system, she said, “is a mess.”

The story began in 1996, when Boston Scientific won clearance for ProteGen, the first vaginally implanted mesh designed specifically to treat incontinence. Two years later, J&J won approval for a similar device, called Gynecare TVT. Under the 510(k) system, J&J wasn’t required to conduct human testing because the company claimed its device was “substantially equivalent” to the Boston Scientific device.

A year later, Boston Scientific voluntarily pulled about 20,000 ProteGen meshes, saying it had received 123 reports of problems, including discomfort, painful sex, and erosion of vaginal tissue. Nonetheless, J&J and at least two other manufacturers, American Medical Systems and Covidien Plc (COV), soon came out with products that traced their design back to ProteGen.

The FDA has said it doesn’t know the number of women who have received the implants since 1998, though it estimates almost 300,000 were used in 2010.

In the case of vaginal mesh implants, the FDA continued approving the hammock-like devices made by J&J and other companies based on their similarity to Boston Scientific Corp. (BSX)’s ProteGen even after it was pulled amid safety complaints. Today, the makers of the entire category of implants face more than 600 lawsuits from women who claim the devices caused serious injury.

The complaints are the latest to implicate the approval process for medical devices at the U.S. Food and Drug Administration, which has cleared faulty hip implants and numerous other products.

In the case of Johnson and Johnson, this is nothing new. How may recalls have we seen from this company in the last 36 months. Where was the FDA when other countries with databases were recalling J&J's faulty hips that now may have affected 34,000 Americans and subjected them to toxic levels of heavy metals. I guess those guys just don't want to mess up those cushy jobs waiting for them when they leave government service to cash in.

In July, the FDA issued a statement saying it is unclear whether prolapse implants provide any benefit over traditional surgery. The statement came three years after the agency first acknowledged a problem in a 2008 report that said mesh complications were serious, if rare. An advisory panel of physicians said last month that the FDA should demand more clinical testing of the devices.

To learn more about Pelvic Mesh Implants, visit: http://www.pelvicmeshlawyer.com/about_mesh_implants.html

Huntsville Neurosurgeons Identified in WSJ article: Taking a Double Cut, Surgeons Implanting Their Own Devices

2011-10-10T07:05:00.000-07:00

Source: WSJ

In the weekend edition of The Wall Street Journal, John Carreyrou and Tom McGinty investigate the ownership of medical device companies whose products the surgeons implant in their patients.

A federal antikickback law prohibits medical device makers from paying surgeons to use their products. Mindful of the law, big device makers entered into partnerships with spinal surgeons, paying them consulting fees and royalties for help designing their products. In some cases, surgeons receiving payments would use that company's devices exclusively and would author research favorable to those products, company documents obtained by congressional investigators show.

Critics of such arrangements say they give surgeons an incentive to do
more operations, and that the conflict of interest has led to unnecessary back surgeries that waste health-care dollars and often do patients more harm than good. "Patients are having huge operations that are un-indicated because of this," says Scott Lederhaus, a neurosurgeon in Pomona, Calif., and member of the Association for Medical Ethics, an organization of doctors that focuses on conflicts of interest.

The inherent conflict of interest is fueling concern. In June, five U.S. senators asked the Inspector General of the Department of Health and Human Services to open an investigation into physician-owned device companies, citing concerns that the surgeons involved have a financial incentive to "perform more procedures than are medically necessary."

Many of the products at issue are approved by the FDA pursuant to the 501(k) process. Under this process, surgeons only have to submit mechanical-testing data attesting that their implants are "substantially equivalent" to existing ones. The FDA
usually gives its green light within 90 days. This process has been under increasing criticism as abuses continue to mount and virtually everything has become substantially equivalent.

The article highlights Spinal USA.

In the spring of 2007, FDA inspectors paid a surprise visit to Spinal USA's offices. They assessed the company with 14 violations, ranging from failing to maintain master records for its devices to having no system in place to track and label them, according to a warning letter the agency issued to the company. The violations were "symptomatic of serious problems," the warning letter stated.

A spokesman for Spinal USA said its rapid growth caused it to run afoul of FDA procedures. He said the company hired an experienced manager to oversee quality control in February 2008, and a second FDA inspection that September cleared the company of the violations. During a third visit in December 2010, FDA inspectors found problems with the way Spinal USA was storing bone products, which the company also addressed.

So why would surgeons use Spinal USA product and why is it that so many neurosurgeons in Huntsville, Alabama would jump on the product bandwagon?
According to the article, in 2007, four spine surgeons in Huntsville, Ala. to invested in the company. Those surgeons, Gilbert Aust, Cyrus Ghavam, Morris Seymour and Larry Parker, switched to using Spinal USA implants in most of their surgeries, according to a local representative for a big medical-device maker.

Four more Huntsville spine surgeons subsequently joined Spinal USA, giving the company a relationship with eight of Huntsville's current 15 spine surgeons. Spinal USA also expanded to Mobile, Ala., where it recruited two surgeons.

Dr. Aust, who is chairman of Spinal USA, confirmed that he and Drs. Ghavam, Seymour and Parker are investors. The company declined to comment on its other surgeon investors.

At Huntsville Hospital, one of the city's two hospitals, 351 spinal-fusion surgeries were performed on Medicare patients in 2009, up from 333 in 2006, before Spinal USA came to town, a Wall Street Journal analysis of Medicare claims data shows. At Crestwood Medical Center, the city's other hospital, there were 187 such operations on Medicare patients in 2009, up from 107 in 2006, the analysis shows. Huntsville Hospital says it spent $5.6 million on Spinal USA products in its most recent fiscal year.

Dr. Aust is quoted as saying that he performs such hardware replacements for medical reasons, not financial ones. He says he doesn't see anything wrong with the fact that they benefit him financially by contributing to Spinal USA's sales. "I know some people in the profession don't think it's ethical,but I just don't see it," he says.

The federal antikickback law doesn't specifically address the issue of surgeons using medical devices made by companies they co-own, but HHS's Office of the Inspector General has issued regulatory guidance for complying with the statute: Among other things, it advises that no more than 40% of a company be owned "by investors who are in a position" to "generate business" for it.

Dr. Aust says he and Spinal USA's other surgeon investors own "the majority of the company," but are working on lining up outside investors. The Spinal USA spokesman says its surgeon owners are in compliance with federal laws because their shares of profits are proportional to their ownership stakes, not to how much business they generate through their surgeries. He adds that more than 60% of the company's business is generated by surgeons who aren't owners.

Spinal USA declines to say how much its surgeon owners earn from the company. But a filing in the personal bankruptcy case of spine surgeon Michael Molleston, one of its investors, says Dr. Molleston received $26,000 a month from Spinal USA as of Nov. 19, 2008, when the filing was made. Dr. Molleston couldn't be reached for comment.

Medicare data showed that a doctor in Jackson, Mississippi with a similar agreement performed spinal fusions more frequently than many of his peers. In 2008 and 2009, he performed 278 spinal fusions on Medicare patients, tenth most in the nation, according to the Journal's analysis of Medicare claims data. In 150 of those cases, or 54%, the patients' diagnosis was degenerative disks.

Considering the catastrophes we are seeing in medical devices and the murky relationships between physicians and pharmaceutical and medical device companies, everyone should consider asking their surgeon to disclose these type of arrangements and Congress should mandate it.

Surgeons Implant Devices They Make (online.wsj.com)
You: Taking Double Cut, Surgeons Implant Their Own Devices - Wall Street Journal (news.google.com)
Medtronic pays 5 surgeons $7m kickbacks in just 9 months: The rape of Medicare (ktwop.wordpress.com)

Former U.S. Senator Fred Thompson and other Lawyers: State Farm covered up support of candidate in most expensive judicial race in U.S. history.

2011-10-03T07:10:00.000-07:00

Former Tennessee Republican Senator and others have filed suit accusing insurance giant State Farm of defrauding the Illinois Supreme Court by covering up its support of the Republican candidate in the most expensive state judicial race in U.S. history.

A petition was filed last week, asking the court to reconsider its decision to void a $1 billion verdict against State Farm. The petition is based on an investigation by a former FBI agent Michael Reece.

"The bottom line of my investigation is that State Farm used the Illinois Civil Justice League to elect Judge Karmeier and Judge Karmeier knew it," Reece stated in his affidavit that accompanied the petition.

The petition alleges Karmeier received at least $2.5 million and up to $4 million in contributions from State Farm during the 2004 campaign against his opponent, Democrat Gordon Maag. Karmeier declined to recuse himself from the class-action case against State Farm because of a conflict of interest and eventually cast his vote to void a $1 billion judgment.

In a 2009 ruling, the court stated a West Virginia appellate judge should have recused himself from a case where the judge received $3 million in campaign contributions, then overturned a verdict against a contributor.

The U.S. Supreme Court decided the judge should have recused himself because of the "serious risk of actual bias."

The Illinois case dates back to 1997 when it was filed in Williamson County. The suit alleged State Farm breached its contract with policyholders when it directed the use of non-original parts in vehicles damaged in crashes. A jury awarded $465 million to some State Farm customers. Williamson County Associate Judge John Speroni awarded $730 million to other policy holders.

In 2001, the Appellate Court let stand a $1.05 billion judgment.

The Supreme Court heard oral arguments in May 2003.

Karmeier, then a circuit judge in Washington County, announced six months later that he would run as a Republican for Illinois Supreme Court.

Karmeier was elected to the Supreme Court in November 2004.

State Farm later represented to the Supreme Court that it provided $350,000 to the Karmeier campaign when plaintiffs' attorneys requested Karmeier recuse himself from the class-action decision.

Nine months after Karmeier was elected, he sided with a 4-2 majority to void the judgment against State Farm. To overturn an appellate decision, there must be a four-justice majority. If that does not occur, the appellate court ruling stands.

Reece discovered evidence that State Farm lobbyist Bill Shepherd vetted Karmeier for the job, helped direct Karmeier's campaign, along with Illinois Civil Justice League head Ed Murnane, used the league's political action committee, JUSTPAC, to raise $2.5 million and "funneled" it to Karmeier's campaign, according to his affidavit filed with the recent petition.

"The Shame of College Sports" by Taylor Branch, ATLANTIC MAGAZINE

2011-09-13T08:32:00.000-07:00

"A litany of scandals in recent years have made the corruption of college sports constant front-page news. We profess outrage each time we learn that yet another student-athlete has been taking money under the table. But the real scandal is the very structure of college sports, wherein student-athletes generate billions of dollars for universities and private companies while earning nothing for themselves."

Below is a link to this article. It is a must read for anyone interested in these issues:

http://www.theatlantic.com/magazine/archive/2011/10/the-shame-of-college-sports/8643/

Here are a couple more highlights:

“I’M NOT HIDING,” Sonny Vaccaro told a closed hearing at the Willard Hotel in Washington, D.C., in 2001. “We want to put our materials on the bodies of your athletes, and the best way to do that is buy your school. Or buy your coach.”

Vaccaro’s audience, the members of the Knight Commission on Intercollegiate Athletics, bristled. These were eminent reformers—among them the president of the National Collegiate Athletic Association, two former heads of the U.S. Olympic Committee, and several university presidents and chancellors. The Knight Foundation, a nonprofit that takes an interest in college athletics as part of its concern with civic life, had tasked them with saving college sports from runaway commercialism as embodied by the likes of Vaccaro, who, since signing his pioneering shoe contract with Michael Jordan in 1984, had built sponsorship empires successively at Nike, Adidas, and Reebok. Not all the members could hide their scorn for the “sneaker pimp” of schoolyard hustle, who boasted of writing checks for millions to everybody in higher education.
“Why,” asked Bryce Jordan, the president emeritus of Penn State, “should a university be an advertising medium for your industry?”
Vaccaro did not blink. “They shouldn’t, sir,” he replied. “You sold your souls, and you’re going to continue selling them. You can be very moral and righteous in asking me that question, sir,” Vaccaro added with irrepressible good cheer, “but there’s not one of you in this room that’s going to turn down any of our money. You’re going to take it. I can only offer it.”
William Friday, a former president of North Carolina’s university system, still winces at the memory. “Boy, the silence that fell in that room,” he recalled recently. “I never will forget it.” Friday, who founded and co-chaired two of the three Knight Foundation sports initiatives over the past 20 years, called Vaccaro “the worst of all” the witnesses ever to come before the panel.

For all the outrage, the real scandal is not that students are getting illegally paid or recruited, it’s that two of the noble principles on which the NCAA justifies its existence—“amateurism” and the “student-athlete”—are cynical hoaxes, legalistic confections propagated by the universities so they can exploit the skills and fame of young athletes. The tragedy at the heart of college sports is not that some college athletes are getting paid, but that more of them are not.

Today, much of the NCAA’s moral authority—indeed much of the justification for its existence—is vested in its claim to protect what it calls the “student-athlete.” The term is meant to conjure the nobility of amateurism, and the precedence of scholarship over athletic endeavor. But the origins of the “student-athlete” lie not in a disinterested ideal but in a sophistic formulation designed, as the sports economist Andrew Zimbalist has written, to help the NCAA in its “fight against workmen’s compensation insurance claims for injured football players.”

"The Shame of College Sports" by Taylor Branch, ATLANTIC MAGAZINE

2011-09-13T08:19:00.000-07:00

NCAA: THE PROBLEM IS TITLE IX-THAT'S NOT WHAT WALTER BYERS SAYS

2011-07-20T12:18:00.000-07:00

One of the arguments made is that Title IX is the cause of the financial problems of many college programs. Walter Byers addressed that argument in his book Unsportsmanlike Conduct in 1995. For those who don't know Byers, he served as executive director of the NCAA from 1951 to 1987. Among other things, he started the NCAA enforcement program, pioneered a national academic rule for athletes and negotiated more than 50 television contracts.

In his book he says the following about Title IX:

The costs of Title IX and the entry of women into the big time should not be blamed for today's highly publicized financial problems for college sports. Two-platoon football was the culprit in the 1960s, and Title IX was held responsible in the 1980s. As we enter the 1990s, the complaints of insolvency are louder than ever. The most frequently proposed cures are a national football playoff and conference realignments to gain more TV dollars. AT THE HEART OF THE PROBLEM IS AN ADDICTION TO LAVISH SPENDING. (emphasis added).

He goes on to say that Presidents and Athletic Directors like the power, status, prestige and attention from prominent boosters that big time college programs bestow on them.

Chris Hellums is the managing shareholder of Pittman Dutton & Hellums. He currently represents former Alabama wide receiver Tyrone Prothro in In Re NCAA Student-Athlete Name and Likeness Licensing Litigation, Case No. 09-cv-1967-CW.

NCAA: Cars for Players-NO-Cars for NCAA staffers-YES

2011-07-05T19:12:00.000-07:00

Image via Wikipedia

One of the most, well, I guess I should say more because there are so many, unbelievable stories told by Walter Byers in his book involves Wilt Chamberlain. Wilt was recruited out of Philadelphia to the University of Kansas in 1955. His recruitment was as high as his height. As the story goes, Wilt chose Lawrence to alleviate his asthma problems. He arrived driving a 1950 Buick, later replaced with a 1953 Oldsmobile that came from the Greenlease-O'Neill Oldsmobile dealership in Kansas City. The ledgers showed that he was paying for the car at a rate of $25 per month, cash. Unfortunately some of the cash payments were made when Wilt was out of town. By 1957, Wilt was driving a 1956 Oldsmobile convertible obtained from a dealership in Lawrence, Kansas.

The NCAA concluded that the 1956 Oldsmobile transaction had been provided to Wilt at no cost. This, along with other violations, landed Kansas on probation for two years.

All this sounds familiar, right. Eric Dickerson, Reggie Bush, Terrelle Pryor, etc. etc.

Well, here is the ironic, and some might say, hypocritical "rest of the story" as told by Byers in his book:

"In recent years, O'Neill Oldsmobile has been one of two dealers that have provided free Oldsmobiles for some 30 top-echelon NCAA staffers, ." "In 1989-90, Steve Morgan and David Berst, the top NCAA enforcement officials at the time, were among those who rode comfortably in new Olds 98s furnished without charge by the automobile agency that took care of Wilt Chamberlain more than 30 years before."

I guess what is good for the goose is not always good for the gander. I guess that is why Mark Emmert looks like a man trying to defend the indefensible in the Frontline interview. Watch it here:

http://www.washingtonpost.com/lifestyle/style/frontline-money-and-march-madness-ncaas-in-the-money--but-athletes-arent/2011/03/28/AF20beqB_story.html

Chris Hellums is the managing shareholder of Pittman Dutton & Hellums. He currently represents former Alabama wide receiver Tyrone Prothro in In Re NCAA Student-Athlete Name and Likeness Licensing Litigation, Case No. 09-cv-1967-CW.

NCAA: WHO IS WALTER BYERS AND WHAT HAS HE SAID ABOUT THE COMMERCIALISM OF AMATEUR NCAA ATHLETES?

2011-07-05T07:45:00.000-07:00

"Today, the NCAA Presidents Commission is preoccupied with tightening a few loose bolts in a worn machine, firmly committed to the neoplantation belief that the enormous proceeds from college games belongs to the overseers (the administrators) and supervisors (coaches). The plantation workers performing in the arena may receive only those benefits authorized by the overseers. The system is so biased against human nature and simple fairness in light of today's high dollar, commercialized college marketplace that the ever increasing number of primary and secondary NCAA infractions cases of the 1990s emerge in the current environment as mostly an indictment of the system itself."

Walter Byers, Unsportmanlike Conduct, 1995

For many of us who live in the south, terms like "plantation" and "overseer" invoke strong images and thoughts. So, when I read these words (and others I will detail) in Walter Byers book, written in 1995, I immediately took notice.

WHO IS WALTER BYERS? Walter Byers served as executive director of the NCAA from 1951 to 1987. Among other things, he started the NCAA enforcement program, pioneered a national academic rule for athletes and negotiated more than 50 television contracts. I think this qualifies him to opine on the subject of amateurism and compensating players.

As the NCAA entered the 90s, they had just disposed of the Jerry Tarkanian matter. For those of us old enough to remember, Tark the Shark was a successful basketball coach at UNLV. The NCAA went to war with Shark the Tark and the shark bit back. Who won depends on who you ask.

The case had all of the usual story lines. Money, cars, admissions issues, suspect grades, all in the backdrop of sin city. Throw in an upstart program (not Kentucky or UCLA) and you have a made for television movie. If there had only been sports talk radio and the internet back then.

As it always does, the NCAA considered itself victorious. Good had defeated evil. The case would serve notice to potential violators. And, it proved the NCAAs essential point, that being if you allowed money into amateur athletics, the conduct would be worse than what occurred at UNLV.

Against this backdrop, the NCAA dug in on its position on amateurism, emphasized its public relations campaign (that sound familiar--"where does the money go" ads we see on TV now), expanded it's enforcement and compliance departments, and enlarged its bureaucracy.

Was the NCAA right? By 1995, Walter Byers, who some say created the NCAA in its current form, didn't think so. Fast forward 16 years. Have we finally reached the tipping point?

More coming in Part II

Chris Hellums is the managing shareholder of Pittman Dutton & Hellums. He currently represents former Alabama wide receiver Tyrone Prothro in In Re NCAA Student-Athlete Name and Likeness Licensing Litigation, Case No. 09-cv-1967-CW.

Just Saying: 'Tort reform' harms us all

2011-07-05T07:16:00.000-07:00

Image via Wikipedia

Josh Moon with the Montgomery Advertiser wrote the attached article on Tort reform. For anyone who saw the HBO documentary film Hot Coffee (http://www.hbo.com/documentaries/hot-coffee/index.html), which I would personally recommend to anyone interested in this issue, I think you will find this article thought provoking and and worth reading.

http://www.montgomeryadvertiser.com/apps/pbcs.dll/article?AID=2011107030329

FDA Warning: Atypical Femur Fractures Seen In Fosamax Recipients

2011-07-01T04:20:00.000-07:00

As a result of ongoing investigations regarding Fosamax and the use of bisphosphonates (BPs) to treat osteoporosis, the FDA has announced that the risk of atypical fractures of the thigh will be added to the Warnings and Precautions section of all labels of BP drugs. Specifically, these atypical fractures are known as subtrochanteric and diaphyseal femur fractures. Recent studies strongly suggest there is a causal link between people who take BPs and the increased risk of these atypical fractures. Furthermore, not only are people who take BPs put in greater risk of fracture, these particular types of fracture are especially more dangerous than the more common femur fractures. Additionally, the use of BPs results in longer and more complicated healing of the bone.

What is a subtrochanteric and diaphyseal femur fracture?

Aytpical subtrochanteric femur fracture is a fracture occurring on the shaft of the femur immediately below the lesser trochanter. That is, right below the hip joint. These fractures are not common, rather they account for only 7% to 10% of all “hip/femoral diaphyseal fractures.”Furthermore, given the unique nature of this fracture, special implants are required in order for the fracture to heal, and they are also more susceptible to malunion or nonunion. Additionally, those affected are liable to suffer long term effects. One study indicated that after 2 years, about 50% of persons who suffered a subtrochanteric fracture did not recuperate their pre-fracture walking abilities and faced difficulties performing routine activities. A total of 71% could not live in the same conditions as they lived previously.

A diaphyseal fracture on the other hand, is a fracture that occurs on the main or midsection of the femur. These of course are one of the more common fractures. What is significant however is that these fractures are more typically associated with high trauma incidents, whereas people taking BPs have incurred these fractures as a result of little to no trauma.

In general there are also other features seen in people taking BPs that make these particular subtrochanteric and diaphyseal fractures atypical. First, the fractures are transverse, that is a straight break perpendicular to the shaft of the femur, or it is a straight angled break. Second, the breaks are clean, in that the bones are not crushed or splintered as you would expect from high trauma breaks. Third, incomplete fractures tend to occur on the lateral side of the femur. Finally, more minor features include fractures in patients whose bones show evidence of an increase in the thickness of the femurs wall, delayed healing, and patients also report that weeks prior to the fracture they experienced symptoms such as dullness and aching in their groin or thigh.

What’s the cause?

The evidence of BP causing unusual femur fractures, has certainly convinced the FDA to prompt these new warning label requirements. Studies are showing that BPs do increase bone density and strength, that is after all exactly what they prescribed to do. That increased strength and density however is achieved by reducing bone turnover. This means essentially instead of “out with the old, in with the new,” as is the case for normal bone “remodeling,” it is more like, “keeping the old, and piling on the new.” The problem however is that bones naturally incur cracks and micro-damage, which is in turn naturally repaired by the body through the process of remodeling. Absent remodeling which is suppressed by the BPs, micro-damage begins to accumulate. Over time, the end result is a thicker, much denser bone, albeit one that is less structurally sound, thus the increased risk of these atypical fractures.

In the short run, it may be that using BPs to combat osteoporosis is an effective treatment. However, for those patients unaware of the risks associated with BPs, like those who have been affected by Fosamax, evidence indicates that whether a person should undergo long term treatment requires a careful assessment of the risks versus its benefits. For this reason the FDA specifically recommends that health care professionals reevaluate a patients need to continue BP therapy, especially for those who have been treated with BPs over five years. c

Chris Hellums can be contacted at Chrish@PittmanDutton.com

References:

[1] US Food and Drug Admin. FDA Drug Safety Commc’n: Safety Update for Osteoporosis Drugs, Bisphosphonates, and Atypical Fractures (2010).

[2] Shane E, Burr D. Ebeling PR, et al. Atypical Subtrochanteric and Diaphyseal Femoral Fractures: Report of a Task Force of the American Society for Bone and Mineral Research. 25 J. Bone Miner. Res. 2267 (2010).

DePuy Pinnacle MDL Update

2011-06-02T12:06:00.000-07:00

Our firm has four of the first Pinnacle cases filed in the DePuy Pinnacle MDL and anticipates filing more in the coming months. We are seeing rapid failures of the device due to high cobalt levels in blood tests. Excessive levels of cobalt in the blood stream is a sign of metallosis, which can cause rashes, soft-tissue damage, peripheral neuropathy and pseudo-tumors.

The DePuy Pinnacle cases have been consolidated in the U.S. District Court for the Northern District of Texas under Judge James E. Kinkeade. Judge Kinkeade is currently presiding over at least one of the cases, and the Panel determined his current caseload will accommodate the litigation. There are approximately 57 DePuy Pinnacle hip lawsuits currently pending in federal courts nationwide and that number is expected to rise over the next few months.

DePuy is a subsidiary of Johnson & Johnson, one of the largest corporations in the world. DePuy recalled the ASR XL Acetabular hip system last August, after researchers found 13 percent of patients needed a repeat operation to fix problems with the implant. The company took a $280 million charge in the fourth quarter to pay for the recall. The company faces more than 500 lawsuits by patients who had the hip implants, most of which are consolidated in a separate MDL dealing only with ASR hips. There has been no recall of the DePuy Pinnacle hip.

Johnson & Johnson’s DePuy Orthopaedics division, a maker of artificial prosthetics such as hips and knees, has struggled with product recalls and lawsuits over faulty implants lately. It was announced earlier this year that the worldwide president would leave the company in March. The executive, David Floyd, has been president of the unit since 2007. He is leaving to pursue interests outside the company, a spokesman on behalf of the company, Lorie Gawreluk, said, declining to be more specific.

Our firm is currently investigating claims for those people who have been implanted with the DePuy hip replacement devices, both ASR and Pinnacles. If you would like a free case evaluation, please contact Chris Hellums at toll free 1-866-515-8880 or at chrish@pittmandutton.com.

FDA Orders Makers of Hip Systems to Conduct Post Market Studies

2011-05-13T11:21:00.000-07:00

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On the front of its Business Day section, the New York Times (5/11, B1, Meier, Subscription Publication) reported on the "unusual move" by the FDA to direct some 20 makers of "metal-on-metal" artificial hips to do postmarket studies because of "high early failure rates and severe health effects in some patients." The companies are being told to find out if the devices "are shedding high levels of metallic debris" that account for cases of disabling "soft tissue damage." Dr. William H. Maisel, deputy director for science at the FDA's Center for Devices and Radiological Health, said the FDA wants to know "about the entire category of implants, not any single manufacturer's device." He added, "Our concern is the product, not about a manufacturer."

Bloomberg News (5/11, Farrell, Nussbaum) said the FDA order, dated May 6, went to Johnson & Johnson, "which is already facing more than 1,000 lawsuits over hip replacements," as well as companies such as Biomet Inc., Zimmer Holdings, and Stryker Corp., which said it didn't make a metal-on-metal product. Bloomberg News added, "The request comes nine months after DePuy Orthopaedics, a unit of New Brunswick, New Jersey-based J&J, recalled a hip-replacement system that had been implanted in 93,000 patients worldwide.

DePuy Pinnacles Headed For MDL

2011-05-05T03:49:00.000-07:00

Attorneys, including myself, who have filed lawsuits on behalf of individuals who have been injured by DePuy’s Pinnacle Hip Systems, have petitioned the U.S. Judicial Panel on Multidistrict Litigation to consolidate and centralized all similar claims before a single District Judge. If the panel agrees to form a DePuy Pinnacle MDL, a new MDL will be formed that will focus solely on DePuy Pinnacle failures.

Interestingly, there will be individuals who have claims in both the recalled ASR MDL and the Pinnacle MDL. Currently, we respresent several individuals who had recalled ASR implants which were replaced with Pinnacle implants, which also failed, and bi-lateral patients who have ASR implaints in one hip and Pinnacle implants in the other.

My people who heard about the ASR recall investigated their implant system. When they learned that they did not have a recalled ASR, but had Pinnacle systems, they did not obtain the blood tests given to ASR patients. Rapidly developing evidence indicates that there are significant problems with some Pinnacle implant systems, resulting in failures similar to the ASRs.
If you or a loved one have had hip replacement surgery and have been implanted with a defective DePuy hip, you may be entitled to compensation for medical bills, pain and suffering, lost wages and other injuries. Our firm is currently investigating claims for those people who have been implanted with DePuy hip replacement devices, both ASR and Pinnacle. If you would like a free case evaluation, please contact Chris Hellums at toll free 1-866-515-8880 or at chrish@pittmandutton.com.

Topamax Under Scrutiny By FDA

2011-05-05T03:20:00.000-07:00

Topamax was first approved in 1998 by the FDA for the treatment of seizures due to epilepsy. The drug is also referred to by the generic name Topiramate. In 2004, it was also approved for treating migraine headaches. It has been increasingly reported that Topamax has been linked to serious birth defects such as cleft palate/cleft lip. On March 4 of this year, the FDA required the manufacturers of Topamax to significantly strengthen warnings for the drug because of increasing data linking the product to certain types of birth defects including cleft lip/cleft palate and genital malformations including Hypospadias.

It appears that the greatest risk to the unborn baby comes from exposure to the drug during the first trimester of the pregnancy. During this extremely important developmental period, the mother may or may not know that she is pregnant. Therefore, it is not just women who know they are pregnant that are risk, but any woman of childbearing age taking Topamax. One study shows that expecting mothers on Topamax are 21.3 times more likely to give birth to infants with oral birth defects compared to the risk in a background population of untreated women.

Topamax is manufactured by Ortho-McNeil Pharmaceutical LLC, a subsidiary of Johnson & Johnson. From January 2007 through December 2010, approximately 32.3 million Topamax prescriptions were filled for over 4 million people in the United States.

Johnson and Johnson has had a staggering number of recalled products in the last year and a half, notably the DePuy ASR Hip device recalled in the fall of 2010. In fact in April of 2011, Johnson & Johnson recalled close to 57,000 bottles of Topamax because of complaints of an odor. This odor is believed to be caused by trace amounts of a chemical used to preserve the wooden pallets used in storage -- that's the same cause that prompted massive recalls of Tylenol and other over-the-counter medications at McNeil Consumer Healthcare.
In March of 2010, Ortho-McNeil pled guilty and paid $6.14 million in criminal fines for the misbranding of Topamax. Ortho-McNeil also paid an additional $75.37 million to resolve civil allegations (mostly reimbursement for fraudulent Medicare claims). The U.S. government said that Ortho-McNeil promoted Topamax by hiring doctors to join sales representatives in promoting Topamax for unapproved uses in unapproved doses for medical indications not covered by those programs. Reports indicate they promoted the drug as a way to help with weight loss and pain. The federal share of the civil settlement is $50,688,483.52, and the state Medicaid share of the civil settlement is $24,681,516.48.

Our firm is currently investigating claims for those people who have been injured by Topamax. If you would like a free case evaluation, please contact Chris Hellums at toll free 1-866-515-8880 or at chrish@pittmandutton.com.

Congressional Hearings on DePuy Hip Devices

2011-04-22T09:08:00.000-07:00

On April 13, 2011, the United States Senate Special Committee on Aging conducted a hearing that focused on the DePuy ASR hip replacement recall and the role the FDA played in allowing this untested and dangerous product on the market.

The first witness to speak was Katherine Korgaokar, who was implanted with a defective DePuy ASR hip device. After learning of DePuy’s recall, Ms. Korgaokar underwent blood tests that found that her metal ions were 1,000% higher than they should be. Because of the extremely negative health effects of high cobalt and chromium levels in her body, her doctor recommended that she undergo a painful revision surgery to remove the recalled hip device.

Ms. Korgaokar’s testimony about the difficulty in recovering from the revision surgery is familiar to the thousands of patients who are in her shoes:

“The recovery from this second operation has been substantially more difficult than my first. The pain is much worse and it has been extremely difficult to get around. Only recently has my mobility improved to the point where I no longer need crutches. For the past three months I have essentially been confined to my home trying to get through this.”

The Government Accountability Office also testified about its findings in a recent report that found that the FDA is lacking in its ability to adequately protect the public from dangerous medical devices such as the DePuy ASR hip replacement. Among other things, the GAO found that:

“shortcomings in FDA’s oversight of the medical device recall process may limit the agency’s ability to ensure that the highest risk recalls are being implemented in an effective and timely manner. These shortcomings span the entire range of the agency’s oversight activities–from the lack of a broad-based program to systematically assess trends in recalls, to inconsistencies in the way FDA ensures the effective completion of individual recalls.”

Since DePuy was forced to recall the defective ASR hip implants in August, an MDL was formed to handle those lawsuits. Attorneys who have filed lawsuits on behalf of clients who have been injured by DePuy’s Pinnacle Hip System have petitioned the U.S. Judicial Panel on Multidistrict Litigation that all of the federal DePuy Pinnacle lawsuits be consolidated and centralized before a single District Judge. If the panel agrees to form a DePuy Pinnacle MDL, a new MDL will be formed that will solely focus on DePuy Pinnacle lawsuits.

This MDL will function in a similar manner as the MDL for ASR’s. All discovery and pretrial motions will be consolidated under one District Judge and the lawsuits will revert back to their original districts for trial, if necessary. Injuries from the Pinnacle Hip System are similar to ASR injuries: pain, swelling, inflammation and metal poisoning. High levels of cobalt and chromium found in blood and urine samples are causing the most alarm as metallosis can cause rashes, soft-tissue damage and pseudo-tumors.

If you or a loved one have had hip replacement surgery and have been implanted with a defective DePuy hip, you may be entitled to compensation for medical bills, pain and suffering, lost wages and other injuries. Our firm is currently investigating claims for those people who have been implanted with DePuy hip replacement devices, both ASR and Pinnacle. If you would like a free case evaluation, please contact Chris Hellums at toll free 1-866-515-8880 or at chrish@pittmandutton.com.

HOMEOWNERS WITH KNAUF CHINESE DRYWALL MUST ACT NOW

2011-03-09T15:12:00.000-08:00

The Plaintiffs Steering Committee has decided to file another Complaint for those homeowners who have drywall manufactured by the Knauf entities. The deadline to be submitted into the Multi-District Litigation out of New Orleans is Friday MARCH 18TH. Knauf has agreed to waive service thereby saving homeowners the expense and complications of filing through The Hague Convention for Service of Process Abroad. This may be the last chance to be included into the MDL. We believe that filing Knauf claims through the MDL is the most practical option for those homeowners affected by toxic and corrosive Chinese drywall.

Knauf Plasterboard Tianjin is one of the biggest manufacturers of defective Chinese drywall. Most of the defective and toxic drywall was imported into the United States between 2005 and 2007. Due to the large scale rebuilding efforts on the Gulf Coast after Hurricanes Katrina, Rita, Ivan and other storms, builders imported drywall from China because there was not enough domestic drywall for their needs. However, corrosive Chinese drywall is not limited to only the Gulf Coast States, but has been found in places such as Virginia. Unfortunately, most of this Chinese drywall is toxic, corrosive and defective.

Evidence of homes containing toxic Chinese drywall includes repeated AC coil failures, electrical issues, appliance failures, corroded wiring, tarnished fixtures and sulfur odors. Many toxic Chinese drywall homeowners are also afflicted with respiratory issues, nose bleeds, headaches and/or unexplained rashes. Those homeowners who previously experienced asthma or allergy problems have reported that their symptoms are much worse than before they moved into their Chinese drywall homes.

To be included in this Complaint, a homeowner must obtain evidence or indicia of Knauf Plasterboard (Tianjin) Co. Ltd. (“KPT”), Knauf Plasterboard, (Wuhu) Co. Ltd. (“Wuhu”), or Guangdong Knauf New Building Materials Products Co., Ltd (“Dongguan”) as the drywall manufacturer (photos, inspection reports, etc.). Typically, these Knauf entities marked their drywall with the words “Knauf” or “Knauf-Tianjin” in dot matrix print markings.

If you believe you have defective Chinese drywall manufactured by Knauf in your home and you suffer from the above mentioned home and health problems, please contact me immediately. This may be your last chance to be included in the MDL and you must act now.

FOR A FREE CASE EVALUATION, CONTACT BOOTH SAMUELS AT BOOTHS@PITTMANDUTTON.COM OR CALL TOLL FREE 1-866-515.8880

URGENT CHINESE DRYWALL DEADLINE

2011-01-18T14:28:00.000-08:00

For those homeowners who have been affected by toxic Chinese Drywall, Friday January 21, 2011 may be their last chance to be included in the Multi-District Litigation out of New Orleans. The Plaintiffs Steering Committee has decided to file one more Complaint for those homeowners who have drywall manufactured by the Knauf entities. The PSC will arrange for service of this complaint, even if it has to go through the expensive Hague process. This may be the last time for homeowners to be included in this suit. Negotiations between the Plaintiffs and Defendants have resulted in a pilot program to remediate homes and it appears that that program may be extended for more homeowners.

About 3,000 homeowners, mostly in Florida, Virginia, Mississippi, Alabama and Louisiana, have reported problems with the Chinese-made drywall, which was imported in large quantities during the housing boom and after a string of Gulf Coast hurricanes. Inez Tenenbaum, chairwoman of the Consumer Product Safety Commission, the federal agency charged with making sure consumer products are safe, said some samples of the Chinese-made product emit 100 times as much hydrogen sulfide as drywall made elsewhere. The Commission recommended in a report that homes with toxic Chinese drywall be completed gutted and have issued guidelines saying electrical wiring, outlets, circuit breakers, fire alarm systems, carbon monoxide alarms, fire sprinklers, gas pipes and drywall need to be removed.

To be included in this Complaint, a homeowner must obtain evidence or indicia of Knauf as the drywall manufacturer (photos, inspection reports, etc.). Typically, Knauf marked their drywall with the words “Knauf” or “Knauf-Tianjin” in dot matrix print markings. Other evidence of homes containing toxic Chinese drywall include repeated AC coil failures, electrical issues, appliance failures, corroded wiring, tarnished fixtures and sulfur odors. Many toxic Chinese drywall homeowners are also afflicted with respiratory issues, nose bleeds, headaches and or unexplained rashes.

If you believe you have defective Chinese drywall manufactured by Knauf in your home and you suffer from the above mentioned home and health problems, please contact me immediately. This may be your last chance for inclusion into the MDL.

FOR A FREE CASE EVALUATION, CONTACT BOOTH SAMUELS AT BOOTHS@PITTMANDUTTON.COM OR CALL TOLL FREE 1-866-515.8880.

Depuy Hip Replacement Cases Consolidated

2010-12-06T11:06:00.000-08:00

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In what was probably what was the worst kept secret in legal circles, the Judicial Panel on Multi-District Litigation assigned all Depuy ASR hip cases to United States District Judge Katz. The judge will supervise evidence gathering efforts regarding the hip implants which were recalled by Johnson and Johnson's Depuy Orthopedics unit on August 26th. According to Depuy, the implants were recalled after researchers found many patients needed revision surgery because of design defects. Recently, receipents have tested positive for toxic level of chromium and cobalt as a result of the implant failure.

DePuy Hips--Kickbacks, Deferred Prosecution and the role of Surgeons

2010-10-29T17:32:00.000-07:00

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In 2007, DePuy avoided criminal prosecution over financial inducements paid to surgeons to use their hip and knee products by signing a Deferred Prosecution Agreement and paying civil settlements to the Departments of Justice and Health and Human Services of $84.7 million.

The Department of Justice alleged that DePuy routinely violated the anti-kickback statute by paying physicians to exclusively use their products. In announcing the settlement, United States Attorney Christopher J. Christie stated "prior to our investigation, many orthopedic surgeons in this country made decisions predicated on how much money they could make--choosing which device to implant by going to the highest bidder."

The government alleged that these agreements were in place between 2002-2006, which happens to be when many of the now recalled DePuy ASR hips were implanted. Government officials also stated that surgeons failed to disclose the payments to the hospitals where the surgeries were performed, and more importantly, to the patients the devices were installed.

As the DePuy litigation proceeds, both DePuy and some surgeons are going to have some difficult questions to answer.

Patients who return to the physicians who installed the recalled devices need to be aware these relationships exist, inquire of their physician as to whether or not they engaged in such kickback agreements and never let their physician influence them to sign releases allowing DePuy to obtain their medical records.

BREAKTHROUGH IN CHINESE DRYWALL LITIGATION

2010-10-25T08:59:00.000-07:00

To date, homeowners with “Made in China” or similar markings that didn’t specifically identify a manufacturer were designated as having an “indeterminate” or “unascertainable” manufacturer. Unlike homeowners with “Knauf” markings, these homeowners were forced to litigate their claims without a manufacturing defendant. This has been a huge disadvantage to those homeowners devastated by faulty Chinese Drywall.

Recently however, markings used on drywall manufactured by Taishan Gypsum Ltd. (Taishan) and its subsidiary Tai’an Taishan Plasterboard Co. Ltd. (TTP) have been identified through documents produced in the litigation out of New Orleans. Of particular importance is the acknowledgement by TTP that it marked boards with “made in china meet or exceed ASTM C1396 04 standard” and “DRYWALL 4feetx12feetx1/2inch” stamps, as well as other non-descript markings. This revelation may allow us to identify board previously unknown as being manufactured by Taishan or TPP. Attorneys are working on additional discovery to further identify other manufacturers deemed to have “indeterminate” or “unascertainable” manufacturers.

Based on this extremely important discovery, there will be new opportunities for homeowners who previously could not identify the manufacturer of their drywall. District Court Judge Eldon Fallon has already ordered Taishan to pay seven Virginia families a total of $2.6 million in remediation damages.

If you believe you have defective Chinese drywall in your home and experienced repeated AC coil failures, electrical issues, appliance failures, tarnished fixtures, sulfur odors in your home and/or suffer with respiratory issues, nose bleeds, headaches and or unexplained rashes, please contact me.

FOR A FREE CASE EVALUATION, CONTACT BOOTH SAMUELS AT BOOTHS@PITTMANDUTTON.COM OR CALL TOLL FREE 1-866-515.8880.

DEPUY--WHAT TO DO IF YOU RECEIVE A RECALL LETTER

2010-10-14T07:19:00.000-07:00

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I have reviewed perhaps 100 potential claims for individuals who received recall letters from their physicians indicating they had received a Depuy recalled hip.

Typical questions include:

QUESTION: SHOULD I RETURN TO MY PHYSICIAN WHO CONTACTED ME?

ANSWER: PERHAPS. IN MY EXPERIENCE, MOST DOCTORS HAVE BEEN VERY SUPPORTIVE OF THEIR PATIENTS. THEY ARE ORDERING  XRAYS, MRIs, BLOOD TESTS, AND BONE DENSITY TESTS. THESE TESTS ARE IMPORTANT.

I HAVE RECEIVED SEVERAL REPORTS THAT A PHYSICIAN IN NORTHWEST ALABAMA HAS ONLY ORDERED XRAYS, TOLD ALL OF THE PATIENTS WHO CONTACTED ME THAT THEY WERE FINE, AND OPENLY STATED THAT THEIR PAIN ONSET OCCURRED WHEN THEY RECEIVED THE RECALL LETTER. THE WIFE OF ONE OF MY CLIENT'S REPORTEDLY QUIPPED TO THE DOCTOR THAT HE OBVIOUSLY HAD NOT LOOKED AT HER HUSBAND'S CHART IN IN THE TWO YEARS SINCE HIS SURGERY AND CERTAINLY HAD NOT LIVED WITH HIM OR HE WOULD KNOW OTHERWISE.

IF THIS IS YOUR PHYSICIAN, YOU PROBABLY KNOW IT. I WOULD NOT RETURN AND WOULD FIND A SURGEON WHO DOES HIP REVISION SURGERY TO EVALUATE YOUR HIP.

QUESTION:  SHOULD I SIGN THE DOCUMENTS MY DOCTOR GAVE ME?

ANSWER:  ABSOLUTELY NOT!!!!! THERE ARE DIFFERENT VERSIONS OF THIS DOCUMENT, BUT THEY ALLOW DEPUY TO OBTAIN YOUR MEDICAL RECORDS AND IN SOME CASES, OBTAIN YOUR DEFECTIVE DEVICE IF IT IS REMOVED. YOUR INFORMATION WILL ALSO BE PROVIDED TO DEPUY'S ADJUSTERS HANDLING THE CLAIMS.

QUESTION:    DO I HAVE TO GO BACK TO MY DOCTOR FOR THIS TO BE COVERED?

ANSWER:   NO: IN FACT, A CLASS ACTION HAS BEEN FILED AGAINST DEPUY CLAIMING THEY ARE MISLEADING CONSUMERS. IN THAT COMPLAINT, THEY ALLEGE:

"In our opinion, DePuy's 'offer' may deceive potential claimants into believing that the company has actually agreed to advance or reimburse their costs for medical monitoring or revision surgery. In fact, no specific offer to pay medical costs has been made and no specific plan for reimbursement has been announced. Moreover, DePuy has stated that before reimbursement of expenses will be provided, it will review the patient's medical records to determine if the patient meets DePuy's criteria for payment. According to DePuy, the medical records must confirm that the revision is related to the ASR recall and 'not some other type of cause, such as a traumatic fall.' Blaming the device failure on a fall, or another cause, such as physician error, patient misuse, pre-existing condition or underlying diseases is a standard litigation defense in these types of cases. Thus a patient who releases medical records to DePuy may do nothing but provide DePuy with a jump start on litigation defenses."

OPTING FOR FREE CARE FROM DEPUY MAY COST YOU IN THE FUTURE---IN PREVIOUS MEDICAL IMPLANT LITIGATION I HANDLED, PATIENTS WERE OFFERED FREE MEDICAL CARE. WHAT THEY WERE NOT TOLD WAS THAT THE MANUFACTURER PAID THE DOCTORS THE BILL RATE AS OPPOSED TO THE INSURANCE, MEDICARE OR MEDICAID REIMBURSEMENT RATE ,WHICH IS MUCH LOWER. WHEN IT CAME TIME TO SETTLE THEIR CLAIMS, THE MANUFACTURER DEMANDED CREDIT FROM THE SETTLEMENT FOR WHAT THEY PAID, WHICH WAS 3 OR 4 TIMES WHAT THE INSURANCE CARRIER WOULD HAVE PAID. THIS IS A NICE CARROT USED TO KEEP THE PHYSICIANS HAPPY AND IN THE BOAT.

QUESTION: WHAT ELSE DO I NEED TO KNOW?

ANSWER: FIRST, THERE IS OFTEN A VERY CLOSE RELATIONSHIP BETWEEN THE MAKERS OF DEVICES AND THE PHYSICIAN WHO INSTALL THEM. TRIPS, SEMINARS, CATERED LUNCHES ARE NOT UNCOMMON. OFTEN THE PHYSICIAN AND THEIR ORTHOPEDIC REPS, AS THEY ARE CALLED, HAVE CLOSE PERSONAL RELATIONSHIPS. THERE IS NO DOUBT DEPUY WILL SEEK TO EXPLOIT THIS RELATIONSHIP, IF IT CAN BE EXPLOITED, TO OBTAIN RELEASES AND MEDICAL RECORDS (TO PREPARE THEIR DEFENSE THAT THE FAILURE IS UNRELATED).
ON THE OTHER HAND, MANY PHYSICIAN ARE PATIENT ADVOCATES AND SOME HAVE EVEN ADVISED CLIENTS TO SEEK LEGAL REPRESENTATION.

CHRIS HELLUMS recently served as lead counsel in the Total Body Formula Multi District Litigation and is representing clients from across the country with Depuy claims.

For a free case evaluation, he can be reached at Chrish@PittmanDutton.com or toll free at 1-866.515-8880

GMAC and the Foreclosure Problem: Has the Dam Finally Broken on Fraudulent Foreclosures

2010-09-21T12:14:00.000-07:00

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Initial reports were that GMAC had stopped foreclosures in 23 states. GMAC then issued the following response:

"Recent reports have stated that GMAC Mortgage instituted a moratorium on all residential foreclosures in 23 states," the statement said in response to media reports saying that the lender had imposed the moratorium. "This is not true. In fact, all new residential foreclosures are continuing in the ordinary course of business with no interruption in our usual practice."

What Gives and Where is this Going!!!!!!

Various accounts have described how one officer of GMAC Mortgage’s servicing unit has admitted during testimony that, while he signs thousands of affidavits each month in order to affect steps in the foreclosure process, he does not have personal knowledge of certain critical facts in the affidavit which he asserts to be true.

Why is this a problem? A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.

What are the implications of the GMAC Mortgage actions and how serious are the problems? GMAC Mortgage and similarly situated parties contend that there is nothing fundamentally wrong with their foreclosure process and this is simply a procedural issue which is readily curable. In contrast, advocates for borrowers in foreclosure have indicated that the questionable affidavits are only the “tip of the iceberg” and represent the beginning of the end for the foreclosure mills and the banks, servicers and trustees who have been seeking to exercise foreclosure under false pretenses. The heightened scrutiny and increasing interest by state attorneys general means we may finally get to the bottom of a long-running “he said-she said” dispute.

NOT SO FAST

Consumer protection attorneys have for years claimed that finance companies and their servicers have been playing fast and loose with the rules. Specifically, there are have been allegations that almost all foreclosures were tainted by assignments and alonges (the documents that transfer ownership) that were fraudulently signed, not at the time of assignment, but to effectuate the foreclosure.

SECURITIZATION MAKES MATTERS WORSE

Think of it like this. During the boom, mortgages are being pumped out faster than oil in the gulf coast. Those mortgages were being assigned faster than Bernie Madoff could steal money and being cut into pieces faster than an onion on a Ginsu knife commercial. Those pieces were being securitized and resold on Wall Street. No one thought that loans for 120% of the value of the property would ever go down and anyone would ever default. They were making money so fast they never thought they might have to comply with the law and actually LEGALLY assign the paper.

So, the paper ends up in securitized trusts (a legal entity) governed by New York trust law, i.e. legal requirements must be met before it goes into the trust--like actual assignments.

HERE COMES TROUBLE

Then one day someone has to foreclose. In order to foreclose you must prove that you actually own the paper.

MAKE IT UP AS YOU GO

In order to get paid, servicers must actually foreclose on the property. Many lawyers have argued that these entities literally had people sit in rooms all day and sign affidavits and assignments so that the properties could be foreclosed.

IS THIS THE END OR JUST THE BEGINNING

GMAC Mortgage and other banks may hope to sell the story line that its problem is limited to a lone “rogue servicing officer.” Unfortunately, the servicing officer in question indicated in his testimony that he prepared 10,000 or more affidavits per month.

IF YOU BELIEVE THIS WAS NOT AND INSTITUTIONAL PROBLEM, I HAVE A PYRAMID SCHEME I WOULD LIKE TO SELL YOU.

Chris Hellums is the managing shareholder of Pittman Dutton & Hellums. He is currently litigating wrongful foreclosure cases. He can be reached toll free at 866-515-8880 or by e-mail at Chrish@pittmandutton.com

CHINESE DRYWALL CLAIMS STILL BEING ACCEPTED IN MDL

2010-09-16T08:12:00.001-07:00

Lead Counsel, Arnold Levin, has decided that the Plaintiff Steering Committee may file additional interventions or complaints against Knauf, Taishan, and any other identifiable Chinese manufacturer. Knauf, one of the largest manufacturers of defective Chinese Drywall, has accepted service for home owners in the MDL litigation out of New Orleans.

The toxic Chinese drywall plaguing most of the Gulf Coast was used in the construction of homes in the Birmingham area. The drywall was imported into the U.S between 2005 and 2008 and used particularly in 2006, when there was a shortage of building supplies after several hurricanes and during the building boom. The toxic material is known to emit a sulfuric compound that corrodes metals and may cause upper respiratory problems. While a sulfur odor in a home may indicate the product was used, the main indicator would be if the homeowner has had to replace air conditioning coils more than once over the past few years. Also, home owners can look on the back of the drywall, possibly in the attic, to see if it has any Chinese markings such as “Knauf-Tianjin” or is stamped “Made in China.”

There are many reasons to choose to litigate through the MDL against Knauf. U.S. District Court Judge Eldon Fallon ordered Knauf Plasterboard Tianjin Co. Ltd., a committee of attorneys representing plaintiffs and certain drywall installers, suppliers and insurers to participate in mediation in New Orleans in August. Fallon wanted the parties to discuss the "global resolution of claims," according to an entry in the court record. Fallon "encouraged all parties to consider global settlement rather than individual resolution of claims." Fallon has ordered the same parties to participate in mediation again in September. This is very promising for homeowners affected by Chinese drywall.

If you believe you have defective Chinese drywall in your home and experienced repeated AC coil failures, electrical issues, appliance failures, tarnished fixtures, sulfur odors in your home and/or suffer with respiratory issues, nose bleeds, headaches and or unexplained rashes, please contact me.

FOR A FREE CASE EVALUATION, CONTACT BOOTH SAMUELS AT BOOTHS@PITTMANDUTTON.COM OR CALL TOLL FREE 1-866-515.8880.

Depuy Recalls Total Hip System

2010-08-31T04:22:00.000-07:00

DePuy Orthopaedics, Inc., announced it is voluntarily recalling the ASR™ XL Acetabular System and DePuy ASR™ Hip Resurfacing System used in hip replacement surgery. According to some reports, 1 in 8 patients with these hips required a replacement surgery, also known as revision surgery, to replace the implants. The risk for revision was higher with ASR head sizes below 50 mm in diameter and among female patients. Many observers expect this already high failure rate to increase dramatically as problems with the DePuy ASR hip systems become more widely publicized.

Depuy issued the following statement: "We regret that this recall will be concerning for patients, their family members and surgeons," said David Floyd, president, DePuy Orthopaedics. "We are committed to assisting patients and health care providers by providing information through multiple channels and paying for the cost of doctor visits, tests and procedures associated with the recall."

Denying that its decision to do so was related to reports of failures of the ASR systems, late last year DePuy ceased sales of the products. By that time, almost 100,000 of the systems had been implanted in patients worldwide. DePuy Orthopaedics, Inc. is the orthopedic subsidiary of Johnson & Johnson.
Unfortunately, DePuy's recall of the ASR systems comes too late for patients that were sold these devices. Unlike most product recalls, this recall is for a product that has been implanted in a person's hip. As a result, the recalled product can only be replaced with the patient going through a painful and debilitating surgery and rehabilitation.

Attorney Chris Hellums and the firm of Pittman Dutton & Hellums has previously represented individuals numerous medical product failure claims. For a free case evaluation, contact Chris Hellums at Chrish@PittmanDutton.com or toll free at 866-515-8880.

DEADLINE LOOMING FOR FILING CHINESE DRYWALL CLAIMS

2010-08-30T09:36:00.000-07:00

SEPTEMBER 3RD DEADLINE FOR KNAUF INTERVENTIONS IN MDL

The Plaintiffs Steering Committee has extended the deadline for accepting additional claims against Knauf to be included on interventions until Friday, September 3, 2010 at 5 ET. It is doubtful that this deadline will be extended. Knauf, one of the largest manufacturers of defective Chinese Drywall, has accepted service for home owners in the MDL litigation out of New Orleans. A majority of the defective drywall was imported into the United States between 2005 and 2007.

Last week, U.S. District Court Judge Eldon Fallon ordered Knauf Plasterboard Tianjin Co. Ltd., a committee of attorneys representing plaintiffs and certain drywall installers, suppliers and insurers to participate in mediation in New Orleans. Fallon wanted the parties to discuss the "global resolution of claims," according to an entry in the court record. Fallon "encouraged all parties to consider global settlement rather than individual resolution of claims."

Knauf Gips, a family-owned German company with operations throughout the world, has argued for almost two years that it is not legally responsible for the millions of pounds of defective drywall that one of its subsidiaries in China has admitted exporting to the United States. But documents filed in Germany and in U.S. courts show that Knauf’s German umbrella company is closely involved in the management of its subsidiaries, including overseeing quality control, finding raw materials and dealing with rising concerns over the defective drywall.

If you believe you have defective Chinese drywall in your home and experienced repeated AC coil failures, electrical issues, appliance failures, tarnished fixtures, sulfur odors in your home and/or suffer with respiratory issues, nose bleeds, headaches and or unexplained rashes, please contact me.

FOR A FREE CASE EVALUATION, CONTACT BOOTH SAMUELS AT BOOTHS@PITTMANDUTTON.COM OR CALL TOLL FREE 1-866-515.8880.

Federal Court Reinstates Claim Redux, commonly known as "Fen-Phen ", Should Have Not Been Offered to American Public

2010-08-20T09:54:00.000-07:00

A Ohio Federal Court of Appeals Reaffirms that Diet-Drug Redux, commonly known as "Fen-Phen" Should Never Have Been Marketed to the American Public.

Why? The Court of Appeals indicated that the Plaintiff's death was due in part to Wyeth's pre-approval...

TIME MAGAZINE Cover re: Redux
The Court of Appeals reinstated a deceased victim's claim that the recalled diet drug Redux (commonly called fen-phen) linked to her death should never have been marketed to the American people by Wyeth due in part to its pre-approval concerns about potentially lethal side effects.

In the same ruling, the Court held that Federal regulation does not preempt state consumer-protection law

In remanding the case to the trial court, the Court of Appeals held that Federal drug regulations do not preempt state law negligence claims, and indicated that the Supreme Court's 2009 landmark pharmaceutical manufacturer preemption decision (Wyeth v. Levine) may apply beyond inadequate warning-label claims.

Importance? This prevents drug companies being shielded from appropriate state neglignce claims from millions of Americans who get seriously injured taking these prescription medications that do not display adequate warnings due to misrepresentations about these serious lethal side effects to the FDA during the drug approval process.

In its decision, the appeals Court stated, "...we are not persuaded that it is always impossible to comply with both state law duties and FDA regulations in the process leading up to FDA approval." It added, "...we cannot agree with the district court's conclusion as, not only is there a presumption against preemption, but the case law supports the conclusion that Congress did not intend to preempt state tort law claims when it passed the Food, Drug, and Cosmetics Act (FDCA)."

Punitive Damages

The Court of Appeals also reinstated and remanded to the trial court Plaintiff's claim for punitive damages.

In reversing key sections of the trial court's finding for the defendant on summary judgment in Wimbush v. Wyeth et.al., 6th Cir. No. 09-3380, the three-judge appeals panel held that the trial judge erred in concluding that the U.S. Food and Drug Administration (FDA) preempted the Buchanan family's negligence claims that the drug should never have been made available to Americans given Wyeth-Redux's known health risks, particularly Primary Pulmonary Hypertension (PPH).

Redux/ Fen-Phen Causes Primary Pulmonary Hypertension

Although Redux was on the market for a relatively short period, it is estimated that Wyeth has paid thousands of victims of Redux and its predecessor, Pondimin – and/or their survivors – more than $20 billion in damages. In evaluating the potential side effects of Redux, researchers noted that Primary Pulmonary Hypertension (PPH) is a devastating pulmonary disease for which there is still no cure, and the associated heart-valve problems may and often did require high-risk heart surgery. The controversial, high-risk diet drug had previously been evaluated and pulled from pharmacies overseas and it was banned in some individual states before the total recall.
The drug company, which spent more than $50 million marketing the wildly popular and profitable drug after its launch in April 1996, pulled it on September 15, 1997 at the request of the FDA and under mounting criticism by independent researchers and reports in respected medical journals.

Mrs. Buchanan, the Plaintiff, was a dedicated 66- year-old nurse from Maple Heights, Ohio who took the weight-loss drug during 1996 and 1997, who lost her life to PPH in 2003 within a few months after filing her complaint.

See also:
http://www.pbs.org/wgbh/pages/frontline/shows/prescription/hazard/fenphen.html

Is Miracle Mineral Solution or MMS the next Total Body Formula?

2010-08-19T14:38:00.000-07:00

Image via Wikipedia

The F.D.A is warning consumers of "serious harm" from drinking Miracle Mineral Solution (MMS).
According to the F.D.A, the product, when used as directed, produces an industrial bleach that can cause serious harm to health. Side effects include severe nausea, vomiting, and life-threatening low blood pressure from dehydration.

MMS is distributed on Internet sites and online auctions by multiple independent distributors. Although the products share the MMS name, the look of the labeling may vary.

The product instructs consumers to mix the 28 percent sodium chlorite solution with an acid such as citrus juice. This mixture produces chlorine dioxide, a potent bleach used for stripping textiles and industrial water treatment.

Unbelieveably, MMS claims to treat multiple unrelated diseases, including HIV, hepatitis, the H1N1 flu virus, common colds, acne, cancer, and other conditions.

The FDA continues to investigate and may pursue civil or criminal enforcement actions as appropriate to protect the public from this potentially dangerous product.

If you have suffered any negative side effects, consult a health care professional as soon as possible and retain the product.

This product recall is similar to the F.D.A recall of Total Body Formula, a vitamin supplement which was recalled after it was found to have toxic levels of selenium.

FOR A FREE CASE EVALUATION, CONTACT CHRIS HELLUMS AT CHRISH@PITTMANDUTTON.COM OR CALL TOLL FREE 1-866-515.8880

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Avandia Letter Described as "Misleading"

2010-08-19T13:52:00.000-07:00

The FDA ordered GlaxoSmithKline to write certain physicians describing the July expert advisory panel discussion regarding the risks of Avandia, their controversial diabetes medicine. However, many are calling the letter misleading. The letter was sent to physician investigators in the Tide trial, a trial the F.D.A ordered GSK to top recruiting new patients.

Dr. David Graham, an F.D.A. medical officer, gave an impassioned presentation at the advisory meeting arguing that the study should be stopped because patients in the trial are being exploited. None of
his arguments were referenced or described in GlaxoSmithKline’s letter.

Other members of the advisory committee complained that the company’s letter was biased.

The dispute is part of an ongoing battle over what the committee actually decided in July. The committee’s most important vote was whether Avandia should remain on the market and, if so, how. Five different options were offered. Three panel members voted for no change; 7 voted to add more warnings to the drug’s label; 10 voted to severely restrict the drug’s marketing; and 12 voted that the drug should be withdrawn. One abstained.
If the drug is withdrawn, this latest dispute will disappear since the Tide trial itself would likely end.

For more on this story, see Glaxo Memo on Avandia Is Questioned (prescriptions.blogs.nytimes.com)

AVANDIA: Lawsuits , FDA Restrictions and continued FDA Investigation

2010-08-19T13:19:00.000-07:00

Image by insearchofbalance via Flickr

Avandia, GlaxcoSmith Kline’s blockbuster diabetes drug, has faced intense scrutiny the last three years for links to heart problems. Last Friday, Time magazine reported that deputy FDA commissioner Josh Sharfstein said the agency is investigating whether Glaxo broke the law by holding back data from the FDA indicating the drug carried an increased risk of heart attacks.

Sen. Chuck Grassley, the ranking member of the Senate Finance Committee has been investigating Glaxo and Avandia for over two years, and released dozens of internal Glaxo documents in February, 2010 relating to those potential cardiovascular risks. The committee sent copies of those documents to the FDA.

In July, 2010 GSK received disturbing news from the FDA.

The FDA ordered GlaxoSmithKline to stop enrolling new patients in a clinical trial of its diabetes drug, Avandia.

The clinical trial, called TIDE, was mandated by the FDA to assess safety risks of the drug, which is prescribed to treat type-2 diabetes.

The FDA said the action does not mean the drug will be removed from the market. But the agency is demanding that GlaxoSmithKline update physicians and ethics oversight boards involved in the trial regarding all new safety information about the drug.

The second was the when 21 members of the 33 member Food and Drug Administration advisory committee panel voted to restrict the sales of Avandia due to its potential risk for causing heart attacks.

Twelve voted to completely remove Avandia from the market; 10 voted for allowing sales to continue but with new label revisions and possible restrictions; 7 voted to add more warnings while 3 voted for no change at all. We’ll be watching the final decision from the FDA.

OUR FIRM IS INVESTIGATING AVANDIA CLAIMS.

CONTACT CHRIS HELLUMS TODAY FOR A FREE CASE EVALUATION: 866-515-8880 or Chrish@pittmandutton.com .

For further research and investigation read:
• Wall Street Journal Blog: “Another Twist in the Chronicles of Avandia!”
http://blogs.wsj.com/health/2010/08/13/another-twist-in-the-chronicles-of-avandia/%20%20
• 33 Member FDA panel votes to restrict Avandia
o http://prescriptions.blogs.nytimes.com/2010/07/14/blogging-the-f-d-a-panel-on-avandia/%20

Alabama Supreme Court Justices Deny Improper Contact

2010-08-18T07:34:00.000-07:00

Alabama Supreme Court justices deny alleged allegations by Tuscaloosa businessman Stan Pate and others that Governor Riley intervened in the electronic Bingo case. According to reports, Pate and others allege that Riley intervened to get the case assigned to Justice Glenn Murdock. Victoryland issued a statement repeating Pate's allegations. Casino officials also indicated that they were told by Republican insiders that Riley contacted members of the Supreme Court and influenced the assignment of the case.

For further information, see the attached link:

http://http//blog.al.com/spotnews/2010/08/alabama_justices_deny_improper.html

Here We Go Again: Court documents Allege Big Pharma Used Ghostwriting Program to Promote Antidepressant

2009-08-20T05:03:00.000-07:00

Here is a shocker. More documents indicate that Big Pharma engaging in nefarious conduct to peddle drugs. Who is the FDA protecting, us or Big Pharma. I realize there is a revolving door at the FDA, but at some point, someone has to say enough is enough.

The AP (8/19, Perrone) reported that, "according to court documents obtained by the Associated Press," pharmaceutical maker "GlaxoSmithKline used a sophisticated ghostwriting program to promote its antidepressant Paxil [paroxetine], allowing doctors to take credit for medical journal articles mainly written by company consultants." In fact, "an internal company memo instructs salespeople to approach physicians and offer to help them write and publish articles about their positive experiences prescribing the" medication. "Known as the CASPPER program, the paper explains how the company can help physicians with everything from 'developing a topic,' to 'submitting the manuscript for publication.'" The AP notes that "the document was uncovered by the Baum Hedlund PC law firm of Los Angeles, which is representing hundreds of former Paxil users in personal injury and wrongful death suits against GlaxoSmithKline," alleging that "the company downplayed several risks connected with" the medicine, "including increased suicidal behavior and birth defects."

UAB Report: Tort Reform Provides No Savings

2009-08-19T13:03:00.000-07:00

I was recently watching CNBC and they were debating health care costs. Former Tennessee Senator Bill Frist was on and was asked about tort reform as part of the health care debate. He remarked that what he considered it an issue, it was not a significant piece of the solution. I was shocked by this remark.

For years, this has been the battle cry of groups like Citizens for Lawsuit Abuse. Hatched in Texas by Karl Rove and others and perfected in Alabama and Mississippi, these groups convinced virtually everyone that "tort hells" and "greedy trial lawyers" were the cause virtually everything evil in society. All lawsuits are frivolous, everyone who sues wants something for nothing, and juries of average people (who can determine whether someone lives or dies in a criminal context) are too stupid to determine whether or not corporations engaged in fraudulent conduct and if so, the level to which they should be punished.

Guess What----It Worked---But for Who??????????????

The success of this endeavor, financed by insurance companies, tobacco and large corporations has been extremely successful. Many states have passed tort reform statutes. Juries view all plaintiffs with distrust, and are much less willing to award damages---"for fear that my insurance rates will go up" as many interviewed jurors will openly tell you. A trial judge recently told me that about 50% of rear end accident cases tried in his court result in a verdict for the defendant. That's right, 50% of the time, when someone admits the were not paying attention and hit someone from behind, the jury refuses to hold them responsible for their conduct. While at a restaurant recently, I spoke with a lawyer who previously worked for a large insurance company trying car wreck cases. He said that he was fired by one insurance company because he recommended that they pay twice the medical bills.

One must then ask the question, who benefits when this occurs. I would submit that it is insurance companies who benefit. See also, "Ironic Twist of Fate--Tort Reform Champion loses his own Medical Malpractice case."

On to the subject of medical malpractice. Frequently, I talk to my friends who are physicians about medical malpractice. Few have been sued. All know of situations where they think physicians should have been sued, and all are scared to death that they will get sued, lose their practice, their homes, and everything they have worked for so long to accumulate.

I ask them where they get their information from and of course, it is their insurance company. They know about the huge verdict here and there, but not the ultimate outcome. They know their rates are going up and assume it is because of huge settlements and verdicts. They never compare the premiums written to the verdicts in Alabama. Their response to that inquiry is that the insurance companies settle out of court. They seem unaware that largest insurance carrier for doctors in Alabama tries virtually all case filed, so that hypothesis is invalid.

I ask them if they have ever driven by the home of the recently retired CEO of the insurance company which writes most doctors in the state. I ask if they ever considered how it is that he could afford a house that published reports indicate the property taxes alone are in excess of $100,000 per year?

I guess I digressed from where I started, which was with the reading of two articles I found ver interesting. One from the Kentucky Lexington Herald-Leader, "Tort Reform does not cut health costs" and the second from from the New Yorker, authored by Ault Gawande titled "The Cost Conundrum, What a Texas town can teach us about health care" .

According to the Lexington Herald-Leader, States that enacted limits on malpractice claims have seen no cost savings. To the contrary, Texas capped malpractice damages in 2003 only to experience a steep rise in health insurance premiums and medical costs.

Boston surgeon Ault Gawande wrote in The New Yorker about his visit to Texas (see full New Yorker article hyperlinked above). While at dinner with several physicians, he asked about lawsuits. He was told that they had dropped "practically to zero." Well, he wondered, what happened to the claim that doctors were practicing defensive medicine---the basis for tort reform. He learned that doctors have an incentive to order lots of tests---they profit from them!!!!!!!!

These results are not unique.

In 2008, researchers at the University of Alabama at Birmingham published reports of their study which surveyed 27 states with non-economic caps. The principle findings state:

"Using a variety of empirical specifications, there was no statistically significant evidence that noneconomic damage caps exerted any meaningful influence on the cost of employer-sponsored health insurance."

The study concluded:

"The findings suggest that tort reforms have not translated into insurance savings."

(read abstract to study here)

Unfortunately, I think too many to may physicians have been misled by the insurance industry that the evil lurking is a lawyer who trying to take everything they have work tirelessly to attain. Perhaps if they formed their own mutual company and insured their own risk, they could see what the real cost of malpractice coverage.

Court Documents Show Wyeth Paid Writers of Hormone Therapy Articles

2009-08-10T19:02:00.000-07:00

In a front-page story last week on August 5th, the New York Times reported that "Newly unveiled court documents show that ghostwriters paid by [Wyeth] played a major role in producing 26 scientific papers backing the use of hormone replacement therapy in women, suggesting that the level of hidden industry influence on medical literature is broader than previously known."

The articles were uncovered by lawyers suing Wyeth over the hormone therapy written about.

The articles were drafted by a medical communications firm paid by Wyeth, and were "published in 18 medical journals including The American Journal of Obstetrics and Gynecology and The International Journal of Cardiology. between 1998 and 2005." The articles did not disclose Wyeth’s role in initiating and paying for the work.

The articles "emphasized the benefits and de-emphasized the risks of taking hormones to protect against maladies like aging skin, heart disease and dementia."

The "supposed medical consensus" created by the papers is said to have helped sales of Wyeth's hormone drugs Premarin (conjugated estrogens) and Prempro (conjugated estrogens/medroxyprogesterone acetate) rise "to nearly $2 billion in 2001."

That "consensus fell apart in 2002 when a huge federal study on hormone therapy was stopped after researchers found that menopausal women who took certain hormones had an increased risk of invasive breast cancer, heart disease, and stroke."

Corporate Bonuses: The bubble that it seems will never burst

2009-08-09T13:21:00.000-07:00

According to a report issued by New York Attorney General Andrew Cuomo Citigroup, Inc., Merrill Lynch, and seven other banks who received more than $175 Billion (yes, that is billion with a "B") in taxpayer, aka OUR MONEY, paid out more than $32 Billion in bonuses to executives. According to Bloomberg, more than 5,000 of those bonuses were more than $1,000,000.

Cuomo's study, called “No Rhyme or Reason: The ‘Heads I Win, Tails You Lose’ Bank Bonus Culture,” comes as Congress and the Securities and Exchange Commission examine whether to limit the compensation paid to top corporate executives.

Citigroup and Merrill Lynch suffered losses of more than $27 billion at each firm, the report said. Yet Citigroup paid out $5.33 billion and Merrill $3.6 billion in bonuses.

Industry talking heads say that pay is tied to performance and that government should not get involved. The problem is that this type of structure led to the taking of huge amounts of leveraged risk, and when that blew up in their faces, they fired employees, eliminated 401(k) contributions, ruined the economy and left us (the taxpayers) to pick up the tab.

Take as an example the case of Andrew Hall, who runs Philbo, Citi's oil-trading subsidiary. He is on track to collect $100 million, which is his cut from profits from a year of extremely aggressive bets on the oil market. Citi says his trading resulted in $2 billion for Citi over the past five years and they are contractually obligated to pay him. The problem is that this type speculation was not used to lock in supply or steer capital where it was needed, but rather by outsmarting other investors. That bodes the question---what happens when he bets wrong and loses 2 billion, and 10 of his collegues do the same? Well, we know how that story ends.

On main street, if you bet the farm and lose, you lose the farm. On Wall Street, if you bet the farm and lose, the rest of us have to buy you a new farm.

The problem remains that these executives continue to suffer the what I call the "Marie Antoinette Syndrome." They don't get it. They continue to fly around in corporate jets, promote their children, pay themselves (and their buddies whose boards they sit on) huge bonuses while the rest of the country suffers under immense economic stress.

Despite their political power across both parties, I would submit that this simply cannot continue. The industry has had the chance to police itself. That time is past. Just as small businesses cannot put lazy family members on the payroll and pay them to hang out at the country club, neither can banks.

One day the government free cheese program will be over. Banks will have to compete in a new environment. I submit that when that day comes, many good bankers will have gone to community banks and they will become a real force in the industry. In the meantime, we will continue to read about such bonuses at the same pace we read about major league baseball players and steroids.

Alabama Supreme Court Rejects Sealed Container Defense as to Reatilers in Breach of Warranty Claims

2009-07-28T12:57:00.000-07:00

A recent Alabama Supreme Court decision answered a certified question from the United States District Court for the Northern District of Alabama in the case of Sparks v. Total Body Essential Nutrition Inc., Wright Enrichment, Inc. & TexAmerican Food Blending, Inc.

After the District Court concluded that it was not clear under Alabama law whether claims alleging the breach of the implied warranties of merchantability and fitness for a particular purpose are subject to the defense of the sealed-container doctrine, the Supreme Court held that they were not. See the opinion here.

The majority said:

"We answer the certified question in the affirmative and hold that the sealed-container defense is not available to the retail seller of food products in claims asserting a breach of implied warranty under the UCC."

This case aligns Alabama law with the majority of states which have interpreted this issue, including Georgia and Florida, and is also significant in that it will prevent the continued removal of such cases (which involve in-state retailers) from being removed from state to federal court under a fraudulent joinder theory.

The sealed container defense previously allowed retailers who purchased their products from manufacturers in a pre-packaged, sealed container, to avoid liability for defects in products which the retailer did not contribute to or could not have reasonably discovered.

Chris Hellums is co-lead counsel of the Executive Committee to the Personal Injury Plaintiff's Steering Committee for the Total Body Multi-District Litigation.

See here: http://chrishellums.blogspot.com/2009/05/lawyer-chris-hellums-appointed-as-co.html

Pittman Dutton Kirby & Hellums is currently representing clients in various claims against Total Body.

Chris can be reached at Chrish@PDKHlaw.com or Pittman Dutton Kirby & Hellums at http://www.pdkhlaw.com/.

Total Body FDA Warnings & Articles:

Food & Drug Administration Warnings : http://www.fda.gov/ForConsumers/ConsumerUpdates/ucm050806.htm

200 Injured by Total Body : http://www.foxnews.com/story/0,2933,405361,00.html

Ironic Twist of Fate--Tort Reform Champion loses his own Medical Malpractice case

2009-07-27T17:56:00.000-07:00

Elliott M. Kaplan is a prominent Kansas City attorney. For years, he railed against judges, juries, and trial attorneys, as he and his former firm, Daniels & Kaplan, got big bucks to represent big companies. He was well known as one of the founders of the modern tort reform movement in America. He was named "Legal Reform Champion" by the American Tort Reform Association.

In a cruel twist of fate, it appears he may have reaped what he sowed.

According to its website, The American Tort Reform Association was founded in 1986 by the American Council of Engineering Companies and shortly thereafter, the American Medical Association followed them. They have worked to enact tort reform legislation in 45 states. They have led grassroots efforts which have resulted (they claim) in 85% of Americans believing that frivolous lawsuits clog our courts.

Their efforts have paid off, perhaps to the detriment of one of their own. According to the National Practitioner Data Bank, the number of U.S. malpractice payments in 2008 was the lowest since creation of the federal National Practitioner Data Bank, which has tracked payments since 1990.

WHAT HAPPENED TO LAWYER KAPLAN

Lawyer Kaplan was diagnosed in 2003 with pancreatic cancer by his doctor in Kansas City. Kaplan sought the best care money could buy. He went to the Mayo Clinic in Rochester, MN. There he was again diagnosed with pancreatic cancer.

To save his life, he underwent a Whipple resection, a highly invasive surgery that can cause more harm than good. It was only after the surgery that the diagnosis was determined to be wrong, that he only suffered from pancreatitis, and that the Whipple resection made the condition worse, leaving him debilitated and a broken man.

Believing that the doctor had committed malpractice, Kaplan sued the pathologist alleging negligence in the diagnosis.

He assembled what appears to be an army of attorneys to represent him; his former law partner, James F.B. Daniels of McDowell Rice Smith & Buchanan, Thomas Ward of Ward & Ward, Mark Johnson of Greene Espel & Robert A. Stein (former Dean of Minnesota School of Law).

Unfortunately, the jury found against Kaplan and awarded him no damages. He has moved for a new trial. The motion is currently pending.

Read the Kansas City Business Journal article describing Kaplan's lawsuit against the Mayo Clinic here.

I certainly feel for Lawyer Kaplan. Unfortunately, he and the organization which he was a "Champion", foster the belief that all lawsuits are frivolous and that they compromise access to affordable health care, punish consumers by raising the cost of goods and services, chill innovation, and undermine the notion of personal responsibility.

I don't know if his lawsuit was meritorious or not. If it is, then I pray that justice will prevail. I do know that his organization, the American Tort Reform Association, has perpetuated the belief among many Americans that all lawsuits are frivolous. The beneficiaries of this belief are not injured or defrauded people, but the insurance companies and large corporations who fund these organizations.

One only need read jury verdict reporters to see that juries daily turn away victims just like attorney Kaplan.

Correction: Yesterdays initial post had information referring to Elliott S. Kaplan, one of the founders of the law firm of Robbins Kaplan Miller & Ciresi. The source of this information was the Alabama Jury Verdict Reporter and was assumed to be correct. We have notified the Jury Verdict Reporter of this potential error.

Elliot M. Kaplan Biography:

Chris Hellums can be reached at Chrish@pdkhlaw.com

Tsunami Continues in Arbitration War--Congressman Rails against Arbitration Abuses

2009-07-24T05:17:00.000-07:00

Bloomberg News (7/22, Van Voris, Rosenkrantz) reported, "A congressional staff investigation into the biggest U.S. consumer debt-collection arbitrator found 'deeply disturbing' abuses, U.S. Representative Dennis Kucinich said" yesterday at a hearing before a House subcommittee he chairs. "A report on the investigation, released yesterday, claims that the National Arbitration Forum, a Minnesota company that handled most consumer debt-collection arbitrations in the U.S., misled consumers and hid ties to debt-collection firms." Said Kucinich, "The debt collection industry and the alternative legal system that has been created around it can no longer be ignored by the federal government."
The Minneapolis Star Tribune (7/22) reported, "Minnesota Attorney General Lori Swanson backed federal legislation Wednesday that would protect consumers from 'fine print' arbitration contracts that forfeit their legal rights against creditors. 'Millions of Americans are giving away that right without even knowing it,' Swanson told a panel of the House Oversight and Government Reform Committee." Also appearing before the committee was Mike Kelly, CEO of Forthright, "which provides administrative services for the" NAF. Kelly "defended the company's work as a simple and cost-effective alternative to the courts, saying that without access to arbitration, consumers would be the losers."
The AP (7/22, Choi) reported that Kenneth Clayton of the American Bankers Association testified that "arbitration is a valuable way for consumers and businesses to resolve disputes in a very low cost and fair manner. Take it away and consumers will suffer." But "a study by Public Citizen found that credit card companies track arbitrators' rulings and do not enlist the arbitrators who rule against them."
Jones: "arbitration revolution" possible. In a blog at the Wall Street Journal (7/22), Ashby Jones wrote, "It's too soon to say, in all likelihood, but we could be in the early stages of an arbitration revolution."

ARBITRATION: DEJA VU ALL OVER AGAIN

2009-07-22T17:09:00.001-07:00

It was not too long ago that many of us could remember the Stop Binding Arbitration bumper stickers and billboards up and down the highways. Lawyers who represented consumers were dismayed by the proliferation of arbitration contracts in almost every consumer contract. Car dealers, credit card companies, even nursing homes added the provisions to their contracts.

There was no populist swell against arbitration. In retrospect, there a probably a number of reasons. First, many view attorneys with scepticism and a jaundice eye. Additionally, business groups portrayed arbitration as an efficient and cost effective way to resolve disputes. Besides, who could expect a jury of regular people to be able to understand and resolve such disputes---
I never really understood this argument since the jury system is the bedrock of our legal system and no one has ever argued or submitted that juries should not be allowed to determine whether someone is incarcerated or is sent to die in the electric chair.

Be that as it may, Big Business won and arbitration agreement proliferated contracts. Almost immediately, many consumer attorneys refused to take arbitration cases. The fees were high, the ability to prove cases through documents became limited, and most importantly, many argued that the arbitrators were biased in favor of business. Many argued that consumer attorneys were summarily rejected by arbitration companies.

In the end, consumers were placed on unequal footing and basically got screwed. I even hear story of a general counsel of a large company threatening an arbitration company if an unfavorable opinion came from one of that companies arbitrators.

Finally, the abuses went too far and the dam was broken.

Minnesota Attorney General Lori Swanson filed suit this week against the National Arbitration Forum of Minnesota, the nation's largest arbitration company for consumer credit disputes, accusing it of consumer fraud, false advertising and deceptive trade practices by "misrepresenting its independence" and hiding its "extensive ties" to the collection industry.The Attorney Generals lawsuit claims the National Arbitration Forum has ties to debt-collection law firms and works against consumers by virtue of having a mandatory arbitration clause set forth in a credit card, bank, or retail contracts.

Hundreds of thousands of consumer disputes are resolved each year not by a judge or jury, but by a private arbitration system. The Attorney General’s suit alleges that the National Arbitration Forum represented to consumers and the public that it is independent and neutral, operates like an impartial court system, and is not affiliated with and does not take sides between the parties. National Arbitration Forum, while holding itself out as impartial, works behind the scenes—alongside creditors and against the interests of ordinary consumers—to convince credit card companies and other creditors to insert arbitration provisions in their customer agreements and then appointing the Forum to decide the disputes. Forum pays commissions to executives whose job it is to convince creditors to put mandatory arbitration clauses in their customer agreements. Forum does this to generate arbitration filings in the Forum—and hence, revenue—for itself. The lawsuit alleges that, despite telling consumers and the public that it is not affiliated or aligned with the collection industry, the Forum in fact has financial ties to the collection industry.

Beginning in 2006 and through 2007, Accretive—a family of New York private equity funds—engineered two transactions. In the first transaction, Accretive formed several equity funds under the name “Agora” (meaning “Forum” in Greek), which invested $42 million in the Forum.In the second transaction, three of the country’s largest debt collection law firms—Mann Bracken of Georgia, Wolpoff & Abramson of Maryland, and Eskanos & Adler of California—merged into one large national law firm called Mann Bracken. Accretive then acquired the majority interest in a debt collection agency called Axiant, which acquired the collections operations of Mann Bracken. Through these transactions, Accretive took control of one of the country’s largest debt collection enterprises and became affiliated with the Forum, the country’s largest consumer collection arbitration company. Accretive principals remain actively involved with the Forum. In 2006, the Forum processed just over 214,000 consumer collection arbitration claims, of which 125,000, or nearly 60 percent, were filed by the above law firms. Swanson said that the Forum was aware of the affiliation problem in 2006 when it negotiated its relationship with Accretive.

An email from an officer of the Forum to the hedge fund stating: “…we should certainly plan for unwinding any deal in the event shared ownership becomes an acute issue.”

We'll follow this interesting story.View the complaint here:http://capwiz.com/nacanet/attachments/MN_Complaint_Against_NAF.pdfSources:MN Attorney General Press Release http://www.politicsinminnesota.com/2009/jul14/3464/swanson-files-suit-against-national-arbitration-company Business Week
Labels: deceptive trade practices, fraud, Minnesota Attorney General, misrepresentation, National Arbitration Forum

AAA & NAF suspend arbitrations over consumer debt collections pending new guidelines

2009-07-22T16:54:00.000-07:00

The Wall Street Journal (7/22, Sidel, Sharma) reports, "Two major arbitration firms are backing away from the business of resolving disputes between customers and their credit-card and cellphone companies, throwing into disarray a controversial system that prevents unhappy consumers from filing lawsuits. The American Arbitration Association said Tuesday it will stop participating in consumer-debt-collection disputes until new guidelines are established." The National Arbitration Forum, in a settlement with Minnesota Attorney General Lori Swanson, had earlier said "it would stop accepting new cases as of Friday. Their retreat has big implications for credit-card and cellphone companies, which generally require customers to agree to mandatory arbitration." Consumer advocates "have criticized the practice for years, saying consumers often don't realize they are waiving their right to sue when they sign contracts with the companies."

The Wall Street Journal (7/22, Kim) reports, "Consumer advocates say the development opens the door for customers to take their grievances to court instead of being forced to settle their disputes through the arbitration process. 'In the long run, I think this is the beginning of the end of forced arbitration in all consumer contracts, from credit cards, to nursing homes to cellphones,' said Ed Mierzwinski of U.S. PIRG, a consumer-advocacy group."

The San Francisco Chronicle (7/22, Abate) reports, "A congressional committee will hold hearings today at which NAF and its adversaries will argue about whether consumers are put at a disadvantage by the common practice of requiring that disputes be arbitrated rather than fought in court." Carol Kaplan, "a spokeswoman for the American Bankers Association, which represents many credit card issuers, said most consumer contracts are probably written in such a way that another arbitrator could be designated to replace National Arbitration Forum. But Paul Bland, a staff attorney with the advocacy group Public Justice, said NAF was the designated arbiter in so many consumer agreements, including cell phone contracts, that no other arbitration service is big enough to replace it."

Update: Mistrial in Alabama Drug Pricing Case Against Watson Pharmaceuticals

2009-07-16T13:48:00.000-07:00

Montgomery County Circuit Judge Charles Price declared a mistrial after jurors were unable to reach a verdict in the trial of Alabama's prescription drug overpricing lawsuit against California-based Watson Pharmaceuticals.

Judge Price said this past Monday jurors appeared to be hopelessly deadlocked after more than seven hours of deliberations. He said he expects the case will be tried with a new jury in September.

Attorneys representing the state claimed Watson cheated the state's Medicaid program out of $23 million over about 14 years.

The trial lasted four weeks. Jurors had begun deliberations last week and continued Monday afternoon.

The case is State of Alabama v. Watson Pharmaceuticals Inc., CV2005-219.76, Montgomery County, Alabama Circuit Court (Montgomery).

Source: Bloomberg

Update: Alabama Drug Pricing Lawsuit Case in Juries Hands

2009-07-10T13:11:00.000-07:00

Watson Pharmaceuticals, a manufacturer of generic and brand name prescription drugs, is one of the 70 pharmaceutical companies Alabama Attorney General Troy King sued over pricing allegations in 2005.

Watson is accused of inflating prices on lists used to determine how much the state should reimburse pharmacists for drugs provided to people on Medicaid Article Controls.

After more than two weeks of testimony in the complicated case, Montgomery County Circuit Judge Charles Price sent the case to jurors around 1:30 p.m. on Wednesday. They deliberated until about 4:30 p.m. when Judge Price called a recess until Monday morning and told the lawyers to keep working on a resolution.

Jere Beasley representing the state in closing argued that Watson cheated Alabama's Medicaid program out of $23 million from 1991 to 2005. "Nothing so far has gotten their attention," Beasley told the panel of nine women and three men. "I would suggest that you take the $23.8 million as a base and say three times or five times that amount as the punitive damage award."

Beasley also said the alleged "boardroom fraud" is common in the industry, and the country's neediest citizens have been ripped off for years. Change will only come through hitting drug makers in their pocketbooks, he said.

The state claimed it was led to believe it was paying below wholesale prices for medication, but the company said Medicaid officials should have known they were paying higher prices.

Watson attorney James Matthews countered that the state knew for more than a decade that it wasn't being charged the below-wholesale price.

He told jurors the state had plenty of clues, including those in its own documents, to see it wasn't paying the lowest price.

"These are the state's own documents," Matthews said. "Ask yourself -- should that have made them suspicious? Did they really rely on the belief that those were net prices in light of all of that?".

Beasley questioned why Watson didn't bring any of its CEOs or other top executives to testify about its pricing policy and why a liability expert who was present during the trial was never called to the stand.

Matthews said the company expert wasn't needed under oath, and dismissed a state expert as someone who did shoddy work going through files and employee depositions that Watson provided.

"The real truth here is that there is no fraud," he said. "The evidence doesn't support the claims."

Last month, Alabama announced it had settled drug pricing lawsuits against six pharmaceutical companies for $89 million. They included lawsuits against Abbott Laboratories of Chicago and Forest Laboratories, with corporate headquarters in New York City. Both were scheduled to be tried with the Watson case.

The state had previously settled with 10 companies for almost $35 million. Alabama's lawsuits against four companies have gone to trial, with the state winning judgments against each totaling $352.4 million. Those verdicts are being appealed.

Sources:

http://www.forbes.com/feeds/ap/2009/07/09/ap6635121.html

http://www.businessweek.com/ap/financialnews/D99ATL880.htm

Financial Fraud Gives Former Healthsouth CFO 3 Months in Prison

2009-07-02T07:40:00.000-07:00

On Tuesday, Tadd McVay, a former HealthSouth Corp. finance chief, was ordered to spend three months in federal prison for his role in the $2.6 billion financial fraud that nearly wrecked the company.

Although Scrushy was acquitted of criminal charges, last month a judge's ruling in a shareholder lawsuit held Scrushy liable for fraud which ordered him to pay $2.9 billion in damages. When the fraud was uncovered in 2003, HealthSouth was nearly forced into bankruptcy.

Despite McVay's pleas to stay out of prison, U.S. District Judge Inge Johnson ordered him to 3 months in prison after McVay had pleaded guilty in a scheme to inflate earnings six years ago and served five years on probation and six months of house arrest.

Since the 11th U.S. Circuit Court of Appeals agreed with prosecutors that the penalty was too lenient, Judge Johnson ordered McVay to prison.

McVay was among five finance chiefs who pleaded guilty to crimes while working under Richard Scrushy, the former HealthSouth CEO. The fraudulent reports, aimed at meeting Wall Street forecasts, were sent to federal regulators between 1996 and 2002.

McVay has said he was promoted to chief financial officer at HealthSouth in late 2002 and signed a phony earnings statement rather than lose his job, which paid him $400,000 a year.

Sources:

http://www.al.com/newsflash/index.ssf?/base/lottery-5/124653284323960.xml&storylist=alabamanews

http://www.nwanews.com/adg/Business/263341/

Katrina-FEMA Trailer Lawsuits Filed by Alabamians for Formaldehyde

2009-07-01T07:53:00.001-07:00

Sixty-six people in Mobile County, Alabama filed federal lawsuits against the manufacturers of travel trailers accusing them of exposing them to dangerous levels of formaldehyde after Hurricane Katrina.

The plaintiffs join about 23,000 others that have been filed in Mississippi, Louisiana and Texas. The Alabama suits name seven manufacturers, along with those who won no-bid contracts to install the trailers.

The civil complaints contend that the plaintiffs, who live mainly in south Mobile County, developed conditions such as asthma and are at increased risk of cancer.

Attorney Ronnie Penton, who represents the Plaintiffs, said he will add the Federal Emergency Management Agency as a defendant but cannot do so under federal law until after a 180-day waiting period.

The current suit and the additional 40 civil complaints Mr. Penton plans to file by August 1, will be transferred to a federal judge in New Orleans, who has been appointed to oversee all of the travel trailer litigation along the Gulf Coast.

Attorneys believes this is the first group of Alabamians to file suit over the formaldehyde issue.

"It's the first breakthrough we've had in a long, long time to get some relief for these people," said Tyson, the father of Mobile County District Attorney John Tyson Jr. and a former Bayou La Batre city attorney and judge. "We found them in incredible bad condition, and no one was working on their behalf."

The lawsuits accuse the companies of resorting to substandard materials in order to expedite the manufacture of the housing units and failing to warn the government. Allegations also say poor trailer installation methods by contractors caused stress and flexing on their frames, increasing moisture and formaldehyde exposure.

The suit also says internal FEMA e-mails uncovered by a Congressional investigation showed that government officials were more concerned with potential lawsuits than in ensuring the health and safety of some 150,000 families that needed temporary housing after Katrina and Hurricane Rita.

Penton said the evidence is clear that government officials knew about the formaldehyde risks, "and they failed to tell the public about it." Penton went on to say he believes "in fact, it was a cover-up."

The first of the FEMA trailer lawsuits is scheduled to go to trial in New Orleans in September.

U.S. District Judge Kurt Engelhardt in New Orleans will handle all pretrial matters in the Alabama cases before sending them back to Mobile for trial.

The plaintiffs seek compensation for past and future injuries, as well as punitive damages against the manufacturers and contractors.

Source: Press Register

Government Study relates Formaldehyde to increased deadly cancer risks:
http://www.nlm.nih.gov/medlineplus/news/fullstory_84179.html

$10.4 Million Jury Verdict returned in Breach of Contract & Fraud case

2009-07-01T07:27:00.000-07:00

A jury ordered Cello Energy to pay $10.4 million over allegations the firm fraudulently claimed it could produce cheap fuel from hay, waste wood and other material.

Cello Energy is based out of Bay Minette and owned by the former head of the Alabama Ethics Commission, Jack Boykin.

The federal lawsuit was filed by Cello Energy bio fuel investors, Parsons & Wittemore Enterprises; a New York based paper company which also owns a pair of pulp mills in southwest Alabama.

Although Cello Energy built and staffed a plant, Parsons & Wittemore insisted the plant never accomplished what Boykin had long promised—deriving motor fuel from wood chips, crop residue and other biomass.

The jury ruled Monday that Cello Energy and Boykin Trust, the partnership that owned it, were liable for $2.8 million for breach of contract with Parsons & Whittemore. The jurors also decided that the companies, along with Jack Boykin and his son Allen Boykin, were personally liable for another $104,537 for fraud and awarded $7.5 million in punitive damages against all the defendants.

Boykin vowed to move forward with his process for producing fuel. His attorney, Forrest Latta, said Boykin's method has the potential to transform the world.

Parsons & Whittemore invested $2.5 million in Cello Energy and had another $10 million option for a one-third ownership share. Unknown to Parsons & Whittemore, however, Boykin struck a deal with a California firm, Khosla Ventures, which invested $10 million in the construction of a plant in Bay Minette to turn wood chips, hay and other cellulosic material into diesel fuel.

Parsons & Whittemore claimed the deal diluted the value of its investment. And George Landegger, CEO of Parsons & Wittemore, described Boykin's promises about the fuel plant as being lies.

"The jury has spoken clearly in condemning the Boykins' fraud against Parsons & Whittemore. I am gratified that the jury has put a stop to the Boykins' deceit," he said.

Parsons & Whittemore also sued Khosla, accusing the company of interfering in its business relationship with Cello Energy; however, the jury found in favor the Silicon Valley company, Khosla.

Source: Mercury News

Hale County Attorney and Friend Jimmy Seale Passes Away

2009-07-01T04:17:00.000-07:00

As many know by now, my friend and Hale County attorney Jimmy Seale passed away on June 21st. It is a great loss to the legal profession and the citizens of Hale County. I don't remember any occasion when I was with Jimmy that he was not laughing---and you could not help but laugh as well. We laughed with Jimmy. We laughed at Jimmy. But, he always made you laugh. Just thinking about Jimmy makes me laugh.

While visiting my parents in Tuscaloosa last weekend, I came across an article in the Tuscaloosa News written by Robert Dewitt. I don't think anyone could describe Jimmy any better than he does in this article.

http://www.tuscaloosanews.com/article/20090628/NEWS/906279930

Our hearts and prayers go out to his family and law partners.

Alabama Drug Pricing Lawsuit in Court

2009-06-26T12:11:00.000-07:00

On Tuesday, attorneys for the State of Alabama and Watson Pharmaceuticals of California, gave opening arguments in the case, which alleges overcharges to the state's Medicaid system. In 2005, Alabama Attorney General Troy King filed a complaint against 79 pharmaceutical companies which the State alleges misreporting and inflated prices for the drugs.

Watson attorney James Matthews contends the company saved Alabama millions of dollars by providing less expensive generic drugs.

Jere Beasley, founding shareholder of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., is representing the State of Alabama just as he did against AstraZeneca PLC unit, in a similar case claiming Medicaid drug-price fraud suit and won the state $215,000,000.
(http://www.beasleyallen.com/verdicts/$215,000,000-Verdict-in-a-Medicaid-Fraud-Case/).

King recently reached $89 million in settlements and has also secured verdicts in the amount of more than $352 million, but those are under appeal to the state Supreme Court and the State has not received any funds.

I will be watching to advise of future developments.

Homeopathic Remedies & Dietary Supplements Pose Health Risks

2009-06-22T12:22:00.000-07:00

Neither supplements nor homeopathic products are required by the FDA to prove they are safe or effective before going on the market. Reports of these products being contaminated or mislabeled provide substantial ammunition against their use.

The Huffington Post reported that "one quarter of supplements tested by an independent company, ConsumerLab.com, over the last decade have had some sort of problem. Some contained contaminants. Others had contents that did not match label claims. Some had ingredients that exceeded safe limits. Some contained real drugs masquerading as natural supplements."

The article explains that millions of Americans take vitamin, herbal or other dietary supplements. Annual sales for these products exceed $23 billion, and more than 40,000 of these products are on the market.

A 2002 New England Journal of Medicine reported, tens of thousands of supplement-related health problems are handled by U.S. poison control centers each year .

Until 2008, supplement makers were NOT required to report problems to the FDA, and now they must report ONLY serious ones. The FDA estimates that more than 50,000 safety problems a year are related to supplement use.

The Institute of Medicine, an independent science panel that advises the government, studied the situation in 2005 and which urges amending the 1994 law to tighten consumer protections. In their report they said "The committee is concerned about the quality of dietary supplements in the United States. Product reliability is low."

The Associated Press analyzed the Food and Drug Administration's 2008 side effect reports and found that more than 800 homeopathic ingredients were potentially implicated in health problems last year.

Given the recent recalls of pharmaceuticals and dietary supplemtns, consumers must evaluate and purchase these with extreme caution.

As we saw last week, Matrixx pulled 3 Zicam products off the shelves which are sold over the counter and marketed as safe and effective after reports of people losing their sense of smell after its use.

Read full Huffington Post article:
http://www.huffingtonpost.com/2009/06/10/many-natural-supplements-_n_213670.html

Source: http://www.sltrib.com/business/ci_12612995

Mesothelioma

2009-06-18T09:19:00.000-07:00

Yesterday, I met with a client of mine. He is in his 80's and was diagnosed two months ago with mesothelioma. He starts chemotherapy next week.

He reminded me much of my grandfather, whom I was very close. He was a child of the depression and World War II. He smiled and laughed as he described, in perfect detail, many aspects of his life that even his children had not known. His wife of 63 years nodded and smiled as he spoke of their life together and her "country cooking". It made me yearn for the conversations that I had with my grandfather, who was of the same generation, grew up working in the mines, and believed in working hard, playing by the rules, reading his bible, and giving something back, especially to those in need or without.

I worry about his condition in 6 months and whether he will be alive a year from now.

We have all heard of Mesothelioma. We see ads on television day and night. We know the stories about the industry having knowledge of the dangers of asbestos going back to the turn of the century, but some basic information bears repeating.

Background

Mesothelioma is a rare form of cancer in which malignant (cancerous) cells are found in the mesothelium, a protective sac that covers most of the body's internal organs. Most people who develop malignant mesothelioma have worked on jobs where they were exposed to and inhaled asbestos particles.

Mesothlium cells are found in the sac lining of the chest (pleura), the abdomen (peritoneum), or the heart (pericardium). The specific type of mesothelioma is named for the tissue where the cancer originates.

Approximately 70% of mesothlioma cases starts in the chest (pleural mesothelioma), which surrounds the outer lining of the lungs and internal chest wall.

Symptoms of the illness typically take 20 to 50 years to appear. While there is no cure, treatments involve a combination of surgery, chemotherapy and radiation.

Although reported incidence rates have increased in the past 20 years, mesothelioma is still a relatively rare cancer. About 2,000 new cases of mesothelioma are diagnosed in the United States each year.

Mesothelioma occurs more often in men than in women and risk increases with age, but this disease can appear in either men or women at any age.

The Center for Disease Control noted from a 2003 study that “because mesothelioma manifests 20--40 years after first exposure, the number of mesothelioma deaths will likely peak by 2010.”

If you or a loved one has been diagnosed with mesothelioma, please give me a call to discuss your case. 205-322-8880 or email me @ Chrish@PDKHLaw.com.

PDKH lawyers Jeff Kirby & Chris Cochran obtain 6 Million Dollar Verdict in FELA/train wreck case

2009-06-17T12:23:00.000-07:00

On April 19, 2009, PDKH attorneys Jeff Kirby, and J. Chris Cochran obtained a $6,000,000 verdict in Clarke County, Alabama, for a former Norfolk Southern conductor who was severely injured Feb. 14, 2005, at the Walker Springs crossing. The accident involved a log truck and a Norfolk-Southern Railway train.

The Clarke County Democrat reported the $10,948,250 cumulative award may be the largest cumulative civil judgment in Clarke County's judicial history and the complicated trial, which lasted 13 days from March 30 until April 17, is also likely the longest in the county's history.

Plaintiff attorneys alleged two major issues in the case: 1. The railroad's habit of parking rail cars on a siding south of the crossing could obscure the view of an oncoming train and did hide the train that hit the log driver truck. 2. The fact that the crossbuck sign, the traditional "X" that indicates a railroad crossing, was only 12 feet from the track when railroad regulations say it should be 24 feet.

Railroad employees maintained in sworn affidavits prior the trial that the sign was at the proper distance. However, at trial they admitted otherwise. While the trial was in progress, the crossbuck sign was moved to its proper 24 foot distance.

For more information, contact Pittman Dutton Kirby & Hellums lawyers at 205.322.8880.

The Clarke County Democrat published an article about the case on April 23, 2009;
click here : http://www.clarkecountydemocrat.com/news/2009/0423/front_page/001.html

Alabama Supreme Court Stikes Down $5 Million Obstretics Medical Malpractice Award

2009-06-16T11:27:00.000-07:00

I read yesterday the Alabama Supreme Court has overturned a multimillion-dollar jury verdict to a woman whose child died shortly after birth in 2005. The Alabama Supreme Court sided with Mobile OB-GYN in a malpractice lawsuit filed by Wendy Godwin Baggett over the death of her newborn son. The court ruled that evidence didn't support the amount awarded and ordered another trial.

The Mobile jury ordered the obstetrics group to pay Baggett $8 million, but that amount was reduced to $5 million before the case reached the Supreme Court. Baggett claimed that negligence by a doctor led to the death of her son less than two days after his birth.

When the opinion comes out, I'll know more information about it.

Federal judge sentences former Alabama Insurance Executive, John Goff, to 12 years prison for mail fraud and embezzlement

2009-06-11T09:50:00.000-07:00

United States District Judge Myron Thompson imposed a 12 year sentence on John Goff and ordered him to pay $5 million in restitution to XL America insurance company, of Wilmington, Delaware.

Goff was once a major supplier of worker compensation insurance in southern states of Alabama, Tennessee, North Carolina, Georgia, and Mississippi.

In February, a federal court jury convicted Goff of counts including mail fraud, embezzlement and filing a false report with the Alabama Department of Insurance regarding his business dealings.

Goff was convicted of taking money from clients that included churches and businesses and using it to fund a lavish lifestyle rather than sending proceeds to insurance companies. WFSA reports that, "at one time, Goff had an annual salary of more than $1 million, flew in a private jet and slept in a million dollar home, but now he says he cannot afford the restitution he must repay."

“They’re asking at least $200 a month,” Goff told the television station outside of federal court. “Well, I don’t know. Maybe I need to go and play the Florida lottery. That’s the only way I can do it. I can’t pay it.”

Goff is likely to appeal his conviction, as the judge that sentenced him, Myron Thompson, said he thought several of the convictions might be reversible, according to the report.

Chris Hellums can be contacted at ChrisH@PDKHLaw.com

Read the full WSFA.com article about the John Goff conviction here:
http://www.wsfa.com/Global/story.asp?S=10466762&nav=menu33_5_1

http://www.wsfa.com/Global/story.asp?S=10466762&nav=menu33_5_1

Florida Department of Insurance Issues Show Cause Order Against Liberty National Life Insurance Company

2009-06-09T14:47:00.001-07:00

On June 3rd, the Florida Department of Insurance issued an order for Liberty National Life Insurance Company to show cause why a final order suspending or revoking the Certificate of Authority currently held by Liberty National in the state of Florida should not be issued.

The Order arose out of a Market Conduct Examination which took place from June to November of 2008 at Liberty National offices in Birmingham, Alabama.

According to the Order, Liberty National was accused of unfair and deceptive conduct. Specifically, Liberty National is accused of discriminating against people solely because of the individuals national origin.

The order primarily involves individuals from Haiti who applied for insurance, but also addressed applications from individuals from Columbia, India, and Pakistan. The applications reviewed by investigators requested to know if the individual had lived in the United States for the last year. However, Liberty National had an underwriting policy that applicants born in certain countries would be rejected if they had resided in the United States for less than 10 years. This heightened underwriting standard applied to individuals from less developed countries. "This was in direct contrast to the written information provided to applicants as part of the application process that they must have resided in the U.S. for the past year to be eligible for life insurance coverage."

As a result, applicants were denied coverage based solely on their national origin.

Additionally, regulators determined that Liberty National represented a basis for denial as "information not received" which was a completely false and fabricated reason to cancel a policy when no actual reason existed. One underwriting file even contained a handwritten stating "Find a reason to cancel/decline. Info not received?"

For a complete copy of the report, contact Chris Hellums at Chrish@PDKHLaw.com

PDKH announces Hydroxycut Recall Information Website: HydroxyLawyer.com

2009-06-04T14:34:00.001-07:00

Pittman Dutton Kirby & Hellums, P.C. announces its consumer Hydroxycut Recall Information website: hydroxylawyer.com. HydroxyLawyer.com . This website will provide consumers with up-to-date information regarding the Hydroxycut Recall Litigation.

Pittman Dutton Kirby & Hellums, P.C. has an worked extensively on products liability and personal injury actions against dietary supplement and pharmaceutical companies.

Pittman Dutton Kirby & Hellums , P.C. managing shareholder Chris Hellums recently was appointed co-lead counsel of the Executive Committee to the Personal Injury Plaintiff's Steering Committee for the Total Body Multi-District Litigation.

Chris Hellums can be reached at ChrisH@PDKHLaw.com

Are Debt Collectors out of Control?

2009-06-03T13:51:00.000-07:00

It all started with a call from a potential client. When the call started, I could tell it was going to be a long conversation. The call was from an elderly woman who sounded as if she was at her wits end. As she told her story, I realized that I had to see if I could help.

Her daughter had gotten into drugs and stolen her identity. She had taken out credit cards and incurred debt in her mother’s name. When her mother found out, she talked with her daughter and told her that there must be consequences for her actions. She contacted the police and filed a complaint against her daughter. This was a difficult decision as she loved her daughter and realized that her actions would effect her daughter’s life. However, she was even more concerned if she did nothing to get her daughter's life turned around. Ultimately, her daughter plead guilty and entered into a restitution agreement.

Image via Wikipedia

Shortly thereafter, the mother and true victim began getting calls and letters from debt collectors. She explained the situation to them. She provided them a copy of the complaint she filed. She provided them with a copy of the guilty plea. She even obtained a letter from the District Attorney who prosecuted her daughter describing what happened and stating that she was not now, or had she ever been, a participant in the fraud and in fact, was a victim.

These collectors did not care. Day and night they called. They called at home. They called at work. They even called at her husband’s work. They threatened to garnish her wages. They threatened to take her house. They threatened just about everything you could threaten.

She then went to an attorney. She paid him thousands of dollars to write letters to these people in hopes that would stop the harassment. Nothing seemed to work.

Somehow she found me late one afternoon. Up until this point in time, I had never handled a case like this one. I researched the issues and began looking at consumer sites such as budhibbs.com.

Ultimately, I determined that nothing short of a lawsuit would stop this abuse. I filed suit against the various creditors and debt collectors. Immediately, creditors began to remove negatively reported information.

I then began to receive the first of what has become common in these types of cases. The attorneys for the various creditors and debt collectors call and say they cannot find my client’s account, their client has no record of any calls to my client. They would never call at work. My client must be mistaken. Fortunately, my client had kept recordings from her answering machine and had co-workers listen in on conversations. Ultimately, we settled with the debt companies and collectors. My client received economic compensation and on some level, felt vindicated.

Since that time, I have represented a number of client’s in these types of transactions.

I advise them all to do the following:

1. Document every conversation
2. Document any phone number which calls them
3. Retain all letters received from any bill collectors
4. Dispute all accounts with the various Credit Reporting Agencies
5. Obtain a police report
6. Send a letter, certified mail, to each creditor and debt collection company

I also tell my clients to be prepared to receive more harassing calls and letters stating that the creditor or debt collectors have completed their investigation and determined that they owe the debt.

To understand why this occurs, consumers need to know more about how the industry works. Stay tuned to future postings about how the industry operates, the tactics they use, and where to go for help.

Chris Hellums is the managing shareholder of Pittman Dutton Kirby & Hellums. He can be reached at CHRISH@PDKHLaw.com or toll free at 866-515-8880

Congress Must Act on Nutritional and Dietary Supplements

2009-06-02T14:42:00.000-07:00

We must tighten laws on nutritional and dietary supplements. It is that simple. All day and all night we are barraged with commercials touting (and showing) the benefits of these products. And yes, from time to time, there are articles or exposés which reveal that the women in the ads have lost the weight not from taking the product, but either by gaining the weight on purpose, or comparing against pictures taken shortly after having a baby.

However, this is not enough to deter Americans quest for a bottle cure, and while spending some money on a product that simply does not work is acceptable to many, what most don’t realize are the real dangers of these types of products. Many assume that manufactures cannot make the exaggerated claims on television unless they are true, or because the Food and Drug Administration regulates prescription drugs so heavily, that they regulate these as well. These assumptions are simply incorrect. The truth of the matter is that the exaggerated claims are made because there is so little regulation and because there is so much money to be made---$22 Billion-a-year. Yes, that is correct, Billion, not Million.

A 1994 law leaves this industry lightly regulated. Supplement manufacturers don't have to provide scientific proof of a product's purity, safety or effectiveness before they put it on the market. Instead, the FDA generally does not step in until after problems are reported.

The industry argues that the current regulation works well and that one bad apple is not representative of an industry whose manufactures, for the most part, go to great lengths to ensure they sell a safe, quality product. The problem is that the Hydroxycut has become just another addition to a long list of dietary and nutritional supplements that were heavily hyped and then discovered after perhaps millions were sold, to pose significant and harmful risks. Last year, Total Body Formula, was recalled after it was determined that it contained toxic amounts of Selenium---the same substance that killed polo horses in Florida. If selenium will kill horses, imagine what it would do to humans. StarCaps, a product used by overweight Minnesota Vikings Kevin and Pat Williams, was found late last year to contain an unlisted prescription diuretic that could increase users' risk of heat stroke and dehydration. In 2004, the FDA banned ephedrine diet aids after a major study linked the products' use to more than 16,000 adverse events, including cardiovascular problems.

Incredibly, Hydroxycut was marketed as a better alternative after the ephedrine ban. It’s name comes from hydroxycitric acid, which comes from a tropical fruit. Reportedly, Hydroxycut sold 9 million units last year. After 23 reported cases of serious health problems in people taking the product, including liver abnormalities, heart problems and possible kidney failure -- Hydroxycut's manufacturer agreed to recall at least 14 products late last week.

The time has long come for Congress to more strongly regulate dietary and nutritional supplements. Of course, once this occurs, we will only have to worry about altered data being sent to the F.D.A. and a revolving door of regulators moving on to work for the industry.

Chris Hellums is the managing partner of Pittman Dutton Kirby & Hellums and is currently co-lead counsel of the Executive Committee to the Personal Injury Plaintiff's Steering Committee for the Total Body Multi-District Litigation. He can be reached at ChrisH@PDKHLaw.com

More on $17 Million Jury Verdict involving skidder obtained by Pittman, Dutton, Kirby & Hellums, P.C. attorney David Hodge

2009-05-29T14:13:00.000-07:00

Pittman Dutton Kirby & Hellums, P.C. attorney David Hodge of Birmingham, along with Vance McCreary of The Gardner Firm in Mobile and James (Jimmy) Seale of Greensboro recently tried and received a verdict in the Circuit Court of Hale County in the amount of $17,559,700.

PDKH represented Charles Miller Chapman against Cummins, Inc. and Bama Logging Equipment Company, Inc. Chapman made claims of Fraud and Breach of Warranty involving the sale of a skidder- a large piece of equipment used to drag cut logs from the woods to a loading area where they can be loaded onto a log trailer.

Chapman claimed that he was sold the defective skidder alleging it was a “demo” unit when in fact it was a one-of-a-kind developmental prototype that had an engine manufactured and produced by Cummins. Cummins had internally determined the engine would not work in this prototype.

Chapman alleged that Cummins, Inc. knew the engine was not suitable for use in this piece of equipment and even before the machine was assembled, Cummins, determined the Tier II engine would not work in this configuration. No one disclosed this to Chapman. In fact, Cummins, Inc., provided Chapman with a warranty despite knowledge that the engine could not perform in that configuration.

This case was tried by Pittman, Dutton, Kirby & Hellums, P.C. shareholder David Hodge. David can be reached at davidh@pdkhlaw.com or toll free 866-515-8880.

Debt Solutions companies under attack by authorities

2009-05-29T11:22:00.000-07:00

Debt settlement companies are for-profit companies that claim that they can eliminate consumers’ debts by negotiating settlements with creditors that are a fraction of the consumer’s outstanding debt. If you watch television these days, their advertisements show up as often as those for drug companies. Many of these companies accomplish very little for consumers while charging exorbitant fees and make empty promises that leave consumers in worse financial state then when they began.

These debt solution companies prey on desperation, offering false hope and no help, often driving these consumers even further into debt and ruining their credit.

Some debt solution companies advise consumers to do one of the following:

1. Stop paying debts

The Problem: this causes customers to face unforeseen late fees, additional interest, increased collections attempts, and even lawsuits by their creditors.

2. Stop paying debts and, instead, to place money into savings account so that enough money will accumulate to allow a settlement offer to be made to any creditors.

The Problem: The debt settlement companies’ saving plans are often extremely unrealistic, so that the promised negotiated settlements do not occur, but the debt settlement companies’ still take their fees.

Also, the debt settlement plans are generally premised on consumers aggregating savings, over one to three years, from which both the payment of the company’s fees and any negotiated settlement are to be made. Yet most consumers who are targeted by these companies are unable to meet the savings requirements because of their precarious financial situation.

3. Ignore collection efforts or refer those efforts to the debt settlement company.

The Problem: it doesn’t work and consumers continue to find themselves subject to creditors’ collection efforts, including lawsuits, and consumers’ credit histories are further damaged when the consumers stop paying debts.

4. Seek additional sources of funds through means such as selling their blood plasma, mowing lawns, cutting down on car insurance and borrowing from their neighbors and church.

The Problem: Even for those consumers who can meet the requirements set out by a plan, their amount of aggregated savings is ordinarily insufficient to settle their debts. As a result, many consumers find themselves worse off financially because of these debt settlement plans.

I suspect that much litigation will arise against debt settlement companies who engage in this type of conduct.

To read more about the actions being taken by the New York Attorney General, see here (http://www.oag.state.ny.us/media_center/2009/may/may19b_09.html)

Chris Hellums may be contacted at ChrisH@PDKHLAW.com

More on Hydroxycut

2009-05-17T03:57:00.000-07:00

Hydroxycut was recalled by the U.S. Food and Drug Administration (FDA) on May 1, 2009. The different varieties of Hydroxycut (powders, pills, liquids) have been related to severe liver damage, including liver failure. At least 23 people that have used the recommended doses of Hydroxycut have reported suffering severe liver damage and other injuries such as seizures, cardiovascular disorders and rhabdomyolysis, a severe form of muscle damage that can lead to kidney failure.

Hydroxycut products were sold across the United States at fitness retail stores, GNC stores, Rite-Aid, Vitamin World, Vitamin Shop, Bally Total Fitness, and other outlets. The products are not classified as drugs and have not been evaluated or approved by the FDA. The FDA urges consumers to discontinue use of Hydroxycut products in order to avoid any undue risk. Adverse events are rare, but exist. Consumers should consult a physician or other health care professional if they are experiencing symptoms possibly associated with these products,” said Linda Katz, M.D., interim chief medical officer of the FDA’s Center for Food Safety and Applied Nutrition.

PDKH is currently representing Hydroxycut victims. Contact attorney Mike Bradley at MikeB@PDKHLaw.com if you have any questions or would like to schedule a consultation.

What is going on with Juries these days???

2009-05-14T07:07:00.000-07:00

In the last 6 months, our firm has obtained four multi-million dollar verdicts? For years, the jury system has been under attack, particularly in Alabama, by surrogates of mega corporations who claim that the jury system is out of control. For years, those attacks have been successful and juries have been reluctant to punish corporate wrongdoing.

Those trends seem to be changing. Recently, our firm conducted a focus group in a very conservative county. We represent several small businesses in that county whose insurance carrier denied their storm damage claims and effectively put them out of business. We conducted the focus group to gauge their thoughts on many issues, including punitive damages. We selected a conservative cross section, which included insurance agents and business owners. The results were striking.

Small town America is angry with corporate America. Small town America says corporate America is getting a bail out and small town America is not only getting left out, but forced to pick up the tab. One member of the panel spoke from the heart. He said frankly that in the past he was reluctant to award significant damages in a civil case for fear that the trickle-down effect would hurt his local community, but now he believes otherwise.

When we hear about the excesses of corporate pay, it is easy to see why small town America feels like they do today.

Image by conorwithonen via Flickr

For more on excessive corporate pay and golden parachutes, see the attached article:

http://finance.yahoo.com/career-work/article/107075/golden-coffins-golden-offices-golden-retirement?mod=career-salary_negotiation

PDKH client awarded $17,000,000.00 today by Hale County Jury

2009-05-13T15:19:00.000-07:00

PDKH client Chapman Logging was awarded $17,000,000.00 by a Hale County jury today. The case involved the sale of a defective logging skidder equipped with a Cummins engine. The case was tried by PDKH attorney David Hodge, along with Vance McCrary of The Gardner Firm and James Seale of Greensboro.

PDKH Lawyers obtain award for mother and daugher injured by drunk driver

2009-05-11T08:19:00.000-07:00

Pittman Dutton Kirby & Hellums attorneys Chris Hellums and David Hodge of Birmingham, along with Tom Denham of Moulton recently tried and received a verdict in the Circuit Court of Lawrence County in the amount of $2,075,000. The verdict consisted of $850,000 in compensatory damages and $1,225,000 in punitive damages.

PDKH represented a family from Lawrence County whose lives were forever altered when they were hit head-on collision by a drunk driver on July 18, 2006. The driver of the other vehicle crossed the center line and hit the Lawrence County residents head on. At trial, PDKH lawyers Chris Hellums and David Hodge were able to introduce into evidence that at approximately 9:40 am in the morning, the driver of the other vehicle was intoxicated at a level of almost four times the legal limit and that his vehicle had open containers and empty bottles in the front seat.

The force of the impact was so great that the client's vehicle traveled 39 feet in the opposite direction from which it was traveling and caught fire. Heroic fellow motorists were able to pull the mother and daughter from the burning vehicle as it exploded in flames. The mother suffered numerous physical injuries including two collapsed lungs, a broken collar bone and broken ribs, all of which required multiple surgeries, extensive hospitalization and painful physical therapy. The 16 year-old daughter suffered a broken back and a spinal cord injury that left her paralyzed. After months of surgeries and physical therapy, coupled with a strong will to overcome and prayers from others, the teen was able to take her first steps without the assistance of a wheel chair. Even though the teen will never live without pain, she continues to work hard and undergo physical therapy as she strives to walk normally again.

This case was tried by partners Chris Hellums and David Hodge. Chris Hellums can be reached at chrish@pdkhlaw.com and David Hodge can be reached at davidh@pdkhalw.com .

To read more:

http://legacy.decaturdaily.com/decaturdaily/news/060719/wreck.shtml

http://legacy.decaturdaily.com/decaturdaily/news/060824/hurt.shtml

http://legacy.decaturdaily.com/decaturdaily/news/061010/morgan.shtml

FDA Warns Consumers to Stop Using Hydroxycut Products

2009-05-06T17:11:00.001-07:00

If you have suffered injury from using a Hydroxycut Product, contact attorney Chris Hellums at ChrisH@pdkhlaw.com for assistance with your potential claim.

The U.S. Food and Drug Administration is warning consumers to immediately stop using Hydroxycut products by Iovate Health Sciences Inc., of Oakville, Ontario and distributed by Iovate Health Sciences USA Inc. of Blasdell, N.Y. Some Hydroxycut products are associated with a number of serious liver injuries. Iovate has agreed to recall Hydroxycut products from the market.
The FDA has received 23 reports of serious health problems ranging from jaundice and elevated liver enzymes, an indicator of potential liver injury, to liver damage requiring liver transplant. One death due to liver failure has been reported to the FDA. Other health problems reported include seizures; cardiovascular disorders; and rhabdomyolysis, a type of muscle damage that can lead to other serious health problems such as kidney failure.

Liver injury, although rare, was reported by patients at the doses of Hydroxycut recommended on the bottle. Symptoms of liver injury include jaundice (yellowing of the skin or whites of the eyes) and brown urine. Other symptoms include nausea, vomiting, light-colored stools, excessive fatigue, weakness, stomach or abdominal pain, itching, and loss of appetite.“The FDA urges consumers to discontinue use of Hydroxycut products in order to avoid any undue risk. Adverse events are rare, but exist. Consumers should consult a physician or other health care professional if they are experiencing symptoms possibly associated with these products,” said Linda Katz, M.D., interim chief medical officer of the FDA’s Center for Food Safety and Applied Nutrition.Hydroxycut products are dietary supplements that are marketed for weight-loss, as fat burners, as energy-enhancers, as low carb diet aids, and for water loss under the Iovate and MuscleTech brand names. The list of products being recalled by Iovate currently includes:

Hydroxycut Regular Rapid Release Caplets
Hydroxycut Caffeine-Free Rapid Release Caplets
Hydroxycut Hardcore Liquid Caplets
Hydroxycut Max Liquid Caplets
Hydroxycut Regular Drink Packets
Hydroxycut Caffeine-Free Drink Packets
Hydroxycut Hardcore Drink Packets (Ignition Stix)
Hydroxycut Max Drink Packets
Hydroxycut Liquid Shots
Hydroxycut Hardcore RTDs (Ready-to-Drink)
Hydroxycut Max Aqua Shed
Hydroxycut 24
Hydroxycut Carb Control
Hydroxycut Natural

Although the FDA has not received reports of serious liver-related adverse reactions for all Hydroxycut products, Iovate has agreed to recall all the products listed above. Hydroxycut Cleanse and Hoodia products are not affected by the recall. Consumers who have any of the products involved in the recall are advised to stop using them and to return them to the place of purchase. The agency has not yet determined which ingredients, dosages, or other health-related factors may be associated with risks related to these Hydroxycut products. The products contain a variety of ingredients and herbal extracts.

Lawyer Chris Hellums and the firm of Pittman, Dutton, Kirby and Hellums P.C. have extensive experience in representing individuals in consumer product safety claims. Please contact Chris Hellums directly for assistance with your potential case at ChrisH@pdkhlaw.com.

Abusive 412(i) Tax Shelter Litigation

2009-05-05T20:00:00.000-07:00

PARTIES:

Typically, these transactions will include an Insurance company, accountant, tax attorney, and a promoter (someone with an insurance background, perhaps an actuary, who knows how to structure the policy itself). These groups will use insurance brokerages and sub-agents (licensed in the various states) to sell the policies themselves.

INSURANCE COMPANIES
AMERICAN GENERAL LIFE INSURANCE COMPANY
INDIANAPOLIS LIFE INSURANCE COMPANY
HARTFORD LIFE AND ANNUITY INSURANCE COMPANY
PACIFIC LIFE INSURANCE COMPANY MET LIFE
PROMOTERS/ATTORNEYS/ACCOUNTANTS
KENNETH HARTSTEIN ECONOMIC CONCEPTS, INC.
PENSION SERVICES, LLC
BRYAN CAVE LLP
RICHARD SMITH

HOW THESE PLANS WORK:

In the late 1990’s, the individuals and groups above devised a scheme to sell abusive tax shelters under the auspices of Section 412(i) of the tax code. A 412(i) is a defined benefit pension plan. It provides specific retirement benefits to participants once they reach retirement and must contain assets sufficient to pay those benefits. A 412(i) plan differs from other defined benefit pension plans in that it must be funded exclusively by the purchase of individual life insurance products. To create a 412(i) plan, there must be a trust to hold the assets.

The employer funds the plan by making cash contributions to the trust, and the Code allows the employer to take a tax deduction in the amount of the contributions, i.e. the entire amount. The trust uses the contributed funds to purchase some combination of life insurance products (insurance or annuities) for the plan. As the plan participants retire, the trust will usually sell the policies for their present cash value and purchase annuities with the proceeds.

The revenue stream from the annuities pays the specified retirement benefit to plan participants. These defendants (with the aid and knowledge of the insurance companies) used the traditional structure and sold life insurance policies with excessively high premiums. The trust then uses the large cash contributions to pay high insurance premiums and the employer takes a deduction for the sum of those large contributions. As you might expect, these policies were designed with excessively high fees or “loads” which provided exorbitant commissions to the insurance companies and the agents who sold the products.

The policies that were sold were termed Springing Cash Value Policies. They had no cash value for the first 5-7 years, after which they had significant cash value. Under this scheme, after 5-7 years, and just before the cash value sprung, the participant purchases the policy from the trust for the policy’s surrender value. In theory, you have a tax free transaction.

The IRS does not recognize the tax benefit of such a plan and has repeatedly issued announcements indicating that such plans are contrary to federal tax laws and regulations. These plans were targeted to high net worth individuals, including doctors, dentists, corporate executives, and professional athletes.

If you would like to speak to one of our attorneys regarding this area of litigation, please contact Chris Hellums

Physicians Mutual Insurance Company Class Action

2009-05-05T19:58:00.001-07:00

Result: $23 million for class representatives and class members residing in the states of Alabama, Mississippi, and Texas.Venue: Alabama, Mississippi, Texas

Named plaintiffs entered into insurance contracts with Physicians Mutual Insurance Company which contained a rider that provided certain outpatient sickness and accident benefits. The plaintiffs alleged that Physicians Mutual wrongfully failed to pay insurance claims for the plaintiffs and other class members.

Physicians Mutual is an insurance company based in Omaha, Nebraska that sells numerous types of insurance products throughout the United States. Beginning in 1993, Physicians Mutual began selling a supplemental insurance product in Alabama called the “Outpatient Plus Plan,” which is a supplemental insurance product comprised of a hospital indemnity policy and a combination of two or more riders. One of the riders attached to the hospital indemnity policy was the outpatient benefit rider, which pays a fixed benefit of $100.00 each time a policyholder makes a claim that meets the requirements of the rider. The Plaintiffs entered into insurance contracts with Physicians Mutual which contained a rider that provided certain outpatient sickness and accident benefits. In the lawsuit, the plaintiffs, individually and on behalf of all class members, alleged that Physicians Mutual wrongfully failed to pay insurance claims.Through the discovery process, the plaintiffs gathered significant documentation to support the allegations.

The result was that Physicians Mutual paid $23 million for class representatives and class members residing in the states of Alabama, Mississippi, and Texas.

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