Archive for the ‘Verdicts’ Category

Week in Review: (June 13 – June 17, 2001) Eye Opener Health, Law and Medicine Blog

Saturday, June 18th, 2011

Eye  Opener’s Week in Review


Jason Penn

From the Editor:  Today marks the end of week two as “guest” editor for the Eye Opener. I can tell you that the title “editor” is a misnomer. When it comes to the Eye Opener and its panel of bloggers, very little (if any) editing takes place. Consistently, our blawgers provide you with timely and topical posts. This week was no different. Let’s take a retrospective look at what the “Eye Opener” offered this week (and, of course, a sneak peek at the week ahead.)

– Jason Penn, Guest Editor


(Many thanks to Jason and all those back at the firm, who helped get the word out on some great topics this past week while I’ve been wrapping-up week #2 of the trial from hell…….Brian Nash)

July 1 – New Residents, New Rules……Again!

By: Theresa Neumann

While the loss of sleep is rarely a topic on Gray’s Anatomy (or any made-for-television medical drama), it is a genuine quandary for non-actor, medical residents. This past Monday, Theresa Neumann explored the ACGME’s limitations on the hours worked by medical residents in the United States. As Theresa explained, the overall maximum hours per week will not change; it remains at 80 hours.  One big change is the limit on the maximum continuous duty period for first year residents; this will be decreased from 24 to 16 hours.  It will remain 24 hours for residents after their first year, but recommendations include “strategic napping.” Curious about the other changes?  Read more

Newest Word on Crib Safety: Ban the Bumpers?

By: Sarah Keogh

Sleep isn’t only important for medical residents; it is also important for the smallest members of our families. As Sara Keogh explained on Tuesday, Maryland is considering regulations to ban the sale of crib bumpers. For many years, more and more emphasis has been placed on infants sleeping in safe cribs without any additional “stuff” in them. This has included the elimination of lots of former nursery staples. Baby blankets, stuffed animals, pillows and other loose items have been banned from the crib by safety experts for years. As requirements for cribs have required slats that are closer together, the utility of using a bumper to help a child from getting stuck between crib slats has been eliminated. More recently, the Consumer Product Safety Commission has developed even newer crib safety standards, including eliminating the use of drop-sides, and warned against the use of sleep positioners. Yet, despite the advice to put babies to sleep only on their backs in cribs empty of everything except a well fitting mattress and fitted sheet, many parents and caregivers persist in using other items in cribs. Now, with an increasing number of deaths associated with crib bumpers, Maryland is considering a stronger stance. Read more

Legal Boot Camp Class Four. Sean and Kristy’s Story: How a Jury Award is Conformed to the Cap

By: John Stefanuca

On Wednesday blogger Jon Stefanuca broke out his calculator:  bootcamp style.  In the state of Maryland, there is a cap on the damages that can be awarded.  But what happens when a jury returns a verdict in excess of the statutory amount?  Mathematics and law intersect.

To see the results, and a detailed explanation of how it all works, you can read more ….


Confusion with Advanced Directives: Palliative Care, End-of-Life and Hospice Care

By: Theresa Neumann

With the death of the always controversial Jack Kevorkian, we revisited a post by Theresa Neumann.  Breathing a little life into the post (pun intended), Theresa provides an excellent primer for readers that are facing end of life situations.  The differences are nuanced and can be difficult to understand at a most difficult time. Are you sure you know the difference between palliative, end-of-life and hospice care?  Read more

Acquired Brain Injuries: Subdural Hematomas

By: Theresa Neumann

When Humpty Dumpty fell, they were able to put him back together again.  Because our lives are nothing like a children’s nursery rhyme, when we fall, we get hurt.  A head injury is particularly serious. Have you ever bumped your head and developed a “goose-egg?” It’s truly amazing how fast that big bruise under the skin grows. That bruise, or hematoma, is from a broken blood vessel, usually a vein. The pressure from the swelling helps with clotting, along with the blood’s own clotting factors. This types of hematoma typically takes a week or more to go away. If it’s on the forehead, it’s often followed by one or two “black eyes.”  That’s because the blood tends to spread along  tissue planes, and gravity notoriously pulls everything downward causing it to pool in the eye sockets, where the blood cells degrade and their components are reabsorbed by the body. Unlike a fairy tale, however, this goose-egg can be serious.  Read more

Sneak Peak of the Week Ahead:

As I told you at the beginning, the Eye Opener’s writers continue in their efforts to provide you with timely and topical blogs for your reading pleasure. As evidenced by the above, this past week was no exception. The Eye Opener and its writers are excited about the week ahead too!  Here’s a sneak peak of what’s in store for you:

  • Service dogs for children:  more than just a pet
  • Changes in Sunscreen:  will regulation prevent cancer?
  • HIV Patients:  Increased risk for developing cancer
  • Legal Boot Camp is back in session and Part III of our Cerebral Palsy tutorial.

Wishing You and Yours a Great Week Ahead!

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Every bad outcome or injury does NOT a malpractice case make! Some practical advice.

Sunday, December 5th, 2010

I recently came across a posting on the internet, which reminded me of a number of the type of calls we receive from people throughout the year. I thought it might be useful to share this post and some comments for you to consider about “whether you have a lawsuit” worth pursuing.

The post read:

I recently had to undergo epidural injections at a local pain management clinic. I was told the stats about the procedure and what signs to look for regarding problems. I had lower lumber injections, and the doctor that did the procedure told me that he punctured the spinal cord, thus releasing fluid. My problem was that I was sent home, to drive myself, and had made repeated calls to them regarding a monstrous headache that made even getting out of bed difficult. After almost 14 days, I finally called the local ER and was given totally different advice from the on-call doctor. I then finally recieved the blood patch….is there any liability here?

The balance of the post consisted of a lawyer responding to the question and some back and forth between the two, which ended – properly so – with the lawyer learning that the potential client had fully recovered, had gone through two weeks of hell and had incurred medical expenses for follow-up care to the tune of $3,750. The lawyer then told the person –

would that $3750 have to be spent regardless of the delayed treatment?

If so, you really don’t have a claim for much of anything. Even if it wouldn’t, to have a valid claim, you would also have to prove their actions were substandard in regards to the established standards of care. Generally, for little or no damages, you are not going to get an attorney to take on a case that will easily cost 10′s of thousands of dollars.

A Basic Problem – Pure Economics

Putting aside the issues of whether the original care giver violated a standard of reasonable care and whether that care caused injury, the pure economics of this situation does not justify the bringing of a medical malpractice case – “little or no damages…[for] a case that will easily cost 10′s of thousands of dollars.”

This type of injury, while clearly serious to the patient, luckily was not permanent in nature. Ask yourself, if you were on a jury hearing this case (assuming you found in favor of the patient-plaintiff by deciding that the doctor’s care was substandard and caused injury) - what amount would you award someone for two weeks of pain and suffering and no permanent injury?

Next, take your answer and do the following math:

  • The “10′s of thousands of dollars” the lawyer mentioned are real numbers that would be spent in a case like this. Expert witness fees (which can be enormous), deposition costs, costs to obtain the records, filing fees, etc. would easily be in excess of $50,000 by the time this case was concluded. Trust me – this is a conservative figure!
  • Legal fees – as many of you are aware, these cases are often taken on a contingency fee basis. The lawyer will charge a percentage (varying from as low as one-third to perhaps a high of forty percent).

Unfortunately, the economics of the case are a practical reality that must be and are addressed with these type of potential case inquiries. That doesn’t mean is easy to explain this to someone who is very upset (many times rightfully so) with the care they received or the attitude of the care giver.

The Client’s Perspective

Clearly no one wants to hear that the injury, inconvenience, medical expenses or pain they endured simply isn’t worth the lawyer taking. Some will read this and no doubt scream out – “You see, it is all about the money after all!” Well, I guess in a way it is – in part. Put yourself back in the shoes of the patient-caller. Let’s say their case is similar to the example (above) case: bills of $3,750, pain for two weeks, no permanency, no future care costs. Whatever number you came up with as our “juror in the box” for a verdict, now go ahead and subtract one-third to forty percent for the fee and – let’s say – $30,000 of costs. Why do I know that the resulting number is a negative one?

Hate to say it – but that’s the cold, hard reality of these situations. Imagine the lawyer trying to explain how the lawyer made some money but the client netted absolutely nothing! Not a place I’ve been or ever want to be.

So What Can This Person Do?

Well there are choices.

  • Try the old-fashioned method – try to work it out with the doctor or health care provider
  • If that doesn’t work, in most jurisdictions, you can always file a small claims action by yourself. The rules of evidence are relaxed in most jurisdictions and the judges tend to be quite liberal in their interpretation of the applicable laws – letting you have your day in court.
  • File a grievance with the local licensing board – they really do care and will take virtually all complaints seriously – at least that has been my experience in Maryland and the District of Columbia.

I strongly urge that you try option #1 – just see if you can sit down and discuss it with the doctor. If you are asked to sign some waiver form or agreement, before you sign it, see if you can have a lawyer take a look at what you’re signing first. You don’t want to waive any rights you might otherwise have. All that being said – try to work it out. It sure is a lot less stress and way less time-consuming. It also may go a long way in making the system work. Many doctors and health care providers are willing to at least listen. Watch your tone; don’t accuse them of being incompetent, uncaring or the like – just have a meaningful discussion and see if you can’t just work it out. If it doesn’t work, and you still believe you have been wronged, there are always options #2 and #3.

The “Suggestion Box”

I’m sure our readers would appreciate any useful suggestions by those who have found themselves in this situation. What approach(es) did YOU take? Did they work? I for one am always interested in hearing our reader’s suggestions – especially in for a topic like this. If they make sense, I assure you we’ll share them in a another post on a related topic. Take a moment and give us your thoughts.

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$8 Million Verdict in Fosamax trial – Jawbone Destroyed By Drug

Thursday, July 22nd, 2010

A landmark verdict against the pharmaceutical giant Merck was recently rendered in a Fort Walton Beach Florida courtroom.  It should raise wide-spead public concern over the safety of drugs called bisphosphonates prescribed for mostly women as treatment for osteoporosis and osteopenia.  Bisphosphonates  are a drug classification that includes Fosamax, Fosamax + D, Aredia, Boniva, Didronil, Actonel, Actonel + Ca, Reclast, Skelid,  and Zometa.

Limited news reports tell the story of Shirley Boles, a 72 year old great grandmother and retired sheriff’s deputy, who was taking the drug Fosamax for osteopenia.  The condition of osteopenia is a normal thinning of the bones as a person ages.  It does not typically result in bone fractures unless it progresses to the disease osteoporosis. Current medical practices recommend treatment to prevent the development of osteoporosis.

Ms.  Boles also had a history of periodontal disease and smoking. She began experiencing jaw problems after taking Fosamax over a 10 year period of time.  She ultimately needed extraction of two teeth. Following the extraction, a very serious  condition called osteonecrosis of her jaw was diagnosed. In essence, the bone in her jaw disintegrated and died.  Jurors witnessed the physical decaying bone matter and infection seen from two drains in her chin. They heard how Ms.  Bales only eats soft food and will need to undergo repeated surgeries to replace her dead jawbone.

How the condition osteopenia went from a research term to an actual disease classification for some people and not others, and how Merck advanced their money-losing drug Fosamax to treat the new disease is a fascinating read.

NPR broke the story during Christmas 2009.  That same month, it was also reported that 10 million people in the United States had osteoporosis and most were women.  That same year,  45 million bisphosphonate prescriptions were written in the US generating $4.9 billion. Given the holiday season, one must wonder how many people actually became aware of this story.

The tale actually begins with the publication of an article released by the Wall Street Journal in December 8, 2004.  The story noted that in 2001, the Chief of Oral Surgery at the Long Island Jewish Medical Center, Dr. Salvatore Ruggiero, began recognizing a distinct pattern of osteonecrosis and jawbone death in 8 cancer patients taking the drug Aredia to combat bone loss.  He reported his cases to the FDA. He continued to track 90 of his subsequent patients, who developed jawbone osteonecrosis while taking Aredia and Zometa.  During this period, other oral surgeons were also reporting the same findings, including the Chief of Oral and Maxillofacial Surgery at the University of Miami’s Miller School of Medicine, Dr. Robert Marx.

The drug company Novartis, which makes Aredia and Zometa, first reported the side effect of osteonecrosis of the jaw (ONJ) on drug inserts in 2003.  By 2004, Novartis had received 500 reported cases in cancer patients taking Aredia and Zometa.  In September 2004, the FDA issued their first warning associated with intravenous bisphosphonates. In June 2006, the National Osteoporosis Foundation put out a Scientific Statement that ONJ associated with bisphosphonate therapy was seen 95% of the time in cancer patients and only rarely in the general osteoporosis patient population.

Ms. Boles did not have cancer.

The American Society of Oral and Maxillofacial Surgeons (ASOMS) put out a clinical position paper in September 2006. Their clinical research found increased risk factors for ONJ in those receiving both intravenous AND oral bisphosphonates.  There was a definite risk increase in patients taking the drugs for more then 3 years, but ASOMS concluded more study was needed. In addition, ASOMS noted a seven-fold increase in patients who had a history of periodontal disease and oral abscess. Diabetes, smoking, and alcohol also increased risk.

Current drug inserts and patient information do not list (ONJ) in drug contraindications or warnings.  However, under general precautions the inserts say ONJ can “occur spontaneously in association with tooth extractions, dental implants, and bony surgery.  It can also occur in cancer patients receiving cancer treatments.  Persons at risk include those with poor oral hygiene, periodontal disease, pre-existing dental disease, anemia, coagulopathy, and ill-fitting dentures.”

In 2009, an article was published in the Journal of the American Dental Association involving the University of Southern California dental clinics.  The results were even more alarming.  The researchers found out of 208 patients taking the drug Alendronate, also known as Fosamax and sold by Merck, nine had active ONJ.  This represented 1 in 23 patients, 4% of the general dental clinic population.  The researchers concluded the incidence may be much higher then previously reported, and the risk appears great even in short term users.  The study author noted there was a 10 year half-life of the drug remaining in bone tissue.  So dentists and patients need to be alerted to the risk remaining over a period of time.

Faulty drug design was the basis for Mrs. Boles $8 million dollar verdict.  Merck plans to appeal.  In the meantime, how many woman taking bisphosphonates remain uninformed of this potential risk?

So just what is ‘Defensive Medicine’? The other side of the ‘story’ being told.

Wednesday, July 14th, 2010

There is a recurring theme being pushed on the public that trial lawyers are driving up the cost of healthcare by making doctors so afraid of lawsuits that they are practicing “defensive medicine” in order to protect themselves.  A recent survey reported in the Wall Street Journal indicates that approximately 90% of doctors surveyed believe that doctors order more tests than needed in order to protect themselves from lawsuits, with an estimated $60 billion being spent each year on such unnecessary treatment.  This report must be taken with a grain of salt at best.

First off, what exactly is defensive medicine?  Is it performing medical procedures that are unnecessary? Is it tests to check for diseases that are statistically unlikely?  Is it tests whose results turn out to be negative (and, therefore, deemed not needed in the first place)?  There is no clear-cut definition of what constitutes defensive medicine.  A quick review of the term on Google shows a number of definitions that all boil down to some variation of the following – ordering tests or procedures out of concern to reduce exposure to malpractice suits rather than out of concern for quality patient care, or refusing to treat high-risk patients or undertake high-risk procedures with the same goal in mind.  In other words, it is the doctor’s motivation in ordering a test – and not the appropriateness of the test itself – that apparently defines defensive medicine for the purposes of these studies.

Even if you can define defensive medicine, how is it measured?  By asking subjective questions of the doctors themselves as to how often they believe they practice defensive medicine.  Are doctors keeping track of each order they write over the course of a year?  Are they keeping track of each test or procedure they perform with a notation of the specific motivation that drove them to get each test?  Of course not! This survey does nothing more than capture a doctor’s subjective (and clearly undocumented) “feeling” as to how often defensive medicine is practiced.  And then a dollar figure is thrown in at the end of the study that is supposed to represent the cost of defensive medicine.  However, without a clear definition, and without a clear test for measuring what tests and procedures are being performed unnecessarily, it is impossible to assess a monetary value for defensive medicine or test the validity of the “estimated $60,000,000,000. (Also, given that doctors are the subject of lawsuits, might one reasonably assume that the doctors have a bias in answering these questions?).

Inherent in this theory of the high costs of defensive medicine is that trial lawyers are constantly bringing frivolous lawsuits that are resulting in million dollar settlements or jury verdicts.  This is simply not the case.  I don’t know any reputable malpractice lawyer who sets out to file frivolous lawsuits.  Those who do should be sanctioned.  At our law firm, we decline the vast majority of inquiries we get from injured patients, which is in line with the experience of other law firms that specialize in medical negligence.  Many of these cases are rejected only after careful review by expert physicians in the field, who tell us that they believe the care was appropriate.  Furthermore, the law in Maryland requires that before a lawsuit can even be filed against a doctor or hospital, the plaintiff must obtain a certificate under oath from an expert in the same field of medicine who, after reviewing the records, has determined that the defendant doctor violated the standard of care and caused injury to the patient.  Frivolous lawsuits cannot even make it past the system’s initial screening stage.

This theory of defensive medicine also leads us to a more fundamental question – what level of care does the law expect of doctors? It is a common misperception that plaintiff’s lawyers expect doctors to perform every available test on every patient, no matter what, or else they’re going to get sued.  Some doctors go to great lengths to perpetuate this myth.  For example, in a recent article on the topic of greedy trial lawyers, a doctor was quoted as saying (and I’m paraphrasing) that if someone comes into an Emergency Department nowadays with a headache, that person is going to get an MRI, a CT scan, you name it.  With all due respect to this doctor, he is wildly exaggerating to make a point.

To answer the question of what is expected for doctors, the law has developed a standard to which health care providers must comply, and that standard is “reasonableness.”  A doctor breaches the standard of care when he or she fails to do what a reasonable physician would have done in the same or similar circumstances.  No more and no less.  The law does not demand perfect care or extraordinary care, and the law does not punish doctors simply because there has been a bad outcome. (There is actually a jury instruction in the District of Columbia called the “Bad Result” instruction that tells jurors they cannot find the doctor liable just because there simply was a bad outcome).  The law only requires that a doctor act reasonably in the circumstances.

As a simple example, let’s say that a patient (a 50-year-old man) sees his primary care physician because he developed low back pain after a weekend spent lugging around bags of mulch in his back yard.  His back is painful and stiff. In that context, what level of care do we expect of the doctor?  If we are to believe the theory of defensive medicine, this primary care doctor would immediately refer the patient to get an MRI, a CT scan, and a consultation with a neurosurgeon just to be sure that he doesn’t get sued.  For anyone who’s ever had back pain and gone to the doctor, he or she can realize how silly this scenario is.

Let’s take another example.  A 38-year-old man comes into the Emergency Department with chest pain.  Questioning by the doctor reveals that he has no history of heart problems or other serious illness.  It is also learned that he just wolfed down a large pizza and a few beers after his company softball game.  The doctor thinks it’s probably just a case of indigestion or heartburn, but to be safe he orders an electrocardiogram to check for heart problems.  This test comes back normal.  Is this defensive medicine?  Does this ER doctor consider it defensive medicine for the purposes of answering survey questions?  Should the EKG not have been done because the odds of a heart attack were minimal?  In this situation, one can easily make the argument that the EKG was reasonable.  Even though the risk of a heart attack was small, the severity of harm to the patient if the diagnosis is missed is great.  Shouldn’t we encourage reasonable testing that catches life-threatening illness?

There is obviously a balance between over-reacting and under-reacting, which is where the concept of reasonableness comes into play.  We applaud doctors exercising medical judgment as they were trained to do, and we expect them to act reasonably.  However, when doctors fail to act reasonably and injure a patient, the law provides a mechanism by which the patient can recover. At the end of the day, it isn’t trial lawyers who determine what is reasonable or unreasonable treatment.  It is juries that decide, after listening to both sides of the story.

Kidney Stone Leads to Death and Verdict!

Wednesday, June 9th, 2010

Recently, a Horry County Jury awarded Mr. Sean Fay nearly $3 million for the death of his late wife, who passed away in 2002, following problems she encountered with a kidney stone.

The Sun News reports that Mrs. Kelly Fay presented to Grand Strand Regional Medical Center emergency room in January of 2002 for severe stomach and lower back pain. After approximately four hours, Mrs. Fay was discharged with a diagnsis of kidney stones. The Medical Center prescribed pain medication and scheduled an appointment for Mrs. Fay to return on Monday –  just two days following her emergency room visit.

While in the emergency room, Mr. and Mrs. Fay were not told to return to the emergency room immediately if Mrs. Fay developed a fever. As you might have predicted, Mrs. Fay developed a fever, which lasted through the weekend, yet concluded she would wait until Monday to return for evaluation. Mr. Fay returned from work on Monday to find his wife suffering from a severe seizure. The infection, which stemmed from the kidney stone, led to septic shock, which untimately caused Mrs. Fays death.

Mr. Fay sued the Medical Center and attending emergency room physician, Dr. Stephen Law , for negligent care. Mr. Fays council argued that the hospital did not comply with the National Standard of Care or Hospital guidelines.

The jury found both Grand Strand Medical Center and Dr. Law responsible; combined, the defendant’s will pay $2.88 million to Mr. Fay. However, Mr. Fay was also considered to have liability for not returning his wife to the hospital when preseted with signs of  a worsening condition.

Randy Lee, attorney for the Medical Cemter states:

“We are considering all options, including an appeal,” Lee said. “While we respect the jury’s verdict, we disagree with the outcome because we believe the patient received appropriate care from the hospital and Dr. Law.”

Looks like there may be a long road ahead in the case of Sean Fay versus the Grand Strand Medical Center.

Yamaha Rhino goes to court in Georgia – not happy with verdict!

Thursday, June 3rd, 2010

When the weather is warm, outdoor activities are the amusement. Expecting them to end in injury usually isn’t the case!

In Gwinnett County, GA, Roger McTaggart was injured in 2007 while riding his Yamaha Rhino recreational utility vehicle. Mr. McTaggart and his wife, Glenda, sued Yamaha Motor Corporation USA, which happens coincidentally to be located in Gwinnett County.

The McTaggart’s case is just one of over 100 cases that allege the Rhino recreational vehicles are unsafe. The Rhino vehicles are alleged to have latent stability defects which cause the vehicles to unexpectedly roll over.

Similarly, the McTaggart’s claimed early in their case that the stability defect caused Mr. McTaggart to unexpectedly roll his vehicle at a low speed and on relatively flat ground.

McTaggart was driving his Rhino and stopped the vehicle. He then starting going forward again and turned the steering wheel to the right, “and the Rhino tipped onto the driver’s side, trapping his leg under the vehicle,” according to McTaggart’s complaint.

McTaggart sustained a “crush” injury in which the “skin exploded” and bone was exposed, Childers said.

Mr. and Mrs. McTaggart also argued that the recreational vehicle should include a barrier which would keep the rider’s legs inside the vehicle. Yamaha rebutted the argument, claiming that doors for the vehicle were produced and added three the four months after Mr. McTaggart’s leg injury.

During the two week trial, all experts, including plaintiffs, concluded that the accident could only have happened while Mr. McTaggart was riding on a side incline, not on an relatively flat and uneven surface. Counsel for the McTaggart’s focused arguments on the fact that had the vehicle contained doors,  Mr. McTaggart’s legs would not have been injured when the unexpectedly vehicle rolled over.

After 10 hours of deliberation, a Gwinnett County jury awarded $317,002 to the plaintiffs. Compensation included pain and suffering, medical expenses, lost wages, future lost wages and loss of consortium for Mrs. McTaggart. The plaintiffs’ attroney, Andrew Childres, claimed that the jury was swayed by Yamaha’s lack of performance testing on the Rhino recreational vehicle, with particular focus on “occupant containment”.

Yamaha claims that the company is upset by the verdict and there is a chance for appeal in the Gwinnett County case. The well known motor-sport company further states:

[We are]…saddened whenever anyone is injured in a Yamaha product-related accident, and we urge all our customers to follow the safety recommendations on our products and, as importantly, to always operate the products in a safe and responsible manner.

As we enter the summer months, it is important to remember that safety is the number one key to outdoor activities. When operating motor vehicles, of any kind, be sure to heed all safety precautions to ensure safe amusement.

Connecticut Jury Awards Smoker $8 Million Against Tobacco Co.

Thursday, June 3rd, 2010

Despite the national headlines over the past decade or more regarding tobacco litigation, the state of Connecticut had never before seen a successful product liability action against a tobacco company. That is, until Barbara Izzarelli recently prevailed in her case against tobacco giant R.J. Reynolds. recently reported that a federal jury awarded Ms. Izzarelli $8 million as compensation for larynx cancer that she developed at age 36 and which she contended was caused by smoking R.J. Reynolds cigarettes for more than twenty years.

The case focused on R.J. Reynolds’ marketing strategy, primarily the company’s alleged efforts to specifically target the teen market back in the 1970’s when Ms. Izzarelli was a teenager and first began to smoke. Her attorneys, led by David Golub of the law firm of Silver, Golub & Teitell, alleged that R.J. Reynolds conducted marketing research on the smoking habits of youths as young as twelve and implemented various business practices directed at luring young people to cigarettes.

[Golub] contended that in the 1970s, after young smokers were attracted to flip-top boxes in which Philip Morris’ Marlboro cigarettes were sold, R.J. Reynolds developed new products to appeal to 14- to 20-year-olds. Golub further argued that those cigarettes were sold in popular teen hang-outs and at reduced prices.

While the jury found in Ms. Izzarelli’s favor, it did not absolve her completely of her own conduct in choosing to smoke for more than twenty years. The original verdict had been $13.6 million, but the jury found that Ms. Izzarelli was 42% at fault so the verdict was reduced to $8 million (Connecticut recognizes the doctrine of comparative negligence, meaning that a jury award can be reduced depending on whether, and to what extent, the plaintiff was negligent.). Still to be decided is the issue of whether R.J. Reynolds should be subjected to punitive damages, i.e., a monetary award intended to punish the company and deter others from engaging in similar conduct. Should punitive damages be assessed, the total award could potentially be as high as $24 million.

For Ms. Izzarelli, who will soon turn 50, this verdict was a long time coming. She was originally diagnosed with larynx cancer in 1996. She filed suit eleven years ago in 1999. According to her attorneys, she is currently “very disabled” and is unable to breathe through her nose or mouth. She instead uses a tube inserted in her throat. Because of her injuries, her diet is restricted to soft foods. Despite these limitations, Mr. Golub calls her “a remarkable woman to overcome these health problems and lead a normal life as much as she can.”

Despite the decade-long efforts to seek redress for her injuries, the verdict and the jury award are still not final. According to David Howard, a spokesperson for R.J. Reynolds, the company has promised to appeal the verdict.

“We’re disappointed in the decision in this matter,” said Howard. “We have several grounds for appeal and we are confident in our defenses going forward.”

Early comments by the defense indicate that R.J. Reynolds will challenge the trial court allegedly denying it the right to put on a ‘full medical defense’ in which Reynold intended to show that it was improbable that the plaintiff’s injuries were related to her smoking. The second issue mentioned post-verdict was the perceived error by the trial judge allowing “all youth marketing evidence despite the fact that, before trial, one of the plaintiff’s claims was dismissed because there was no evidence that the plaintiff was affected by any quote, unquote youth marketing.”

We will keep you posted on any developments in this case.

A Social Networking Lesson for Parents: Think twice before you hit 'send'!

Wednesday, June 2nd, 2010

It’s amazing how people continue to find new ways to get into trouble with social networking.

Photo by Davin Lesnick

Just a few years ago, a parent might get into trouble with his or her teenager by reading the teenager’s diary. Such domestic misdeeds seem almost quaint by comparison to what some parents are now doing on the Internet.

As reported by the ABA Journal and others, a mother in Arkansas has been convicted of harassing her own teenage son via the popular social networking site Facebook. While the mother and her teenage son had an admittedly difficult relationship before this (the teenager had lived with his grandmother for years), the teen never suspected that his mother would go to such lengths in her ongoing battle with him.

Denise New logged onto her son’s personal Facebook account after the teenager apparently left his account open on his computer. Perhaps many parents can appreciate the temptation of peering into their children’s online activities given such an opportunity. This mother, however, was not motivated by concern over her son’s well-being or even simple curiosity. Instead, Ms. New intended to post phony messages on his site purporting to come from him. For example, after the two got into a physical altercation and the police got involved, the mother posted a message on her son’s Facebook account (again pretending she was her son) essentially bragging that he had intentionally started the fight and called the police on his mother. Cell phone messages played in court corroborated that the mother was posting such phony messages. In other messages left on his site, the mother expressed regret at ever having a child and repeatedly used foul language. Putting all of this together, the court found that this conduct constituted harassment of the teenager. The mother was sentenced to 30 days in jail (suspended) along with probation and parenting classes.

As a reminder to all of us in this new world of social networking, the trial judge offered some sage advice:

“We live in a world now where what used to be said between two people or in a parking lot, now you hit a button and hundreds, maybe millions, of people can hear what you do,” he said. “It makes it maybe even more important for a person to think before they act because the amplification can be tremendous.” (Source: Arkansas Online)

Like it or not, we all now have the ability to broadcast information — even highly personal information — to the world.  Apparently, some of us are still struggling with deciding what information should be broadcast and what should be kept to ourselves.

IV infiltration leads to $1.5 million verdict when patient loses thumb.

Saturday, May 29th, 2010

Recent news from Georgia (where the state’s cap on non-economic damages was recently overturned): A patient, Johnnie Jackson, age 47, was awarded $1.5 million for pain and suffering in addition to recovery of his medical expenses, for injuries he sustained when delay in treating an infiltration of his IV ultimately led to the loss  of his thumb.

Mr Jackson presented to Coffee Regional Medical Center for complications resulting from a pancreatic condition on April 30, 2005. Mr. Jackson had a known history of diabetes and chronic pancreatitis.

Upon presentation, a nurse administered Phenergan and Demerol through an IV, which had been inserted into Mr. Jackson’s right wrist. At approximately 3:00 on the morning of May1, Mr. Jackson complained of swelling and pain at the site of the IV causing it to be removed 45 minutes later.

After nine hours of complaints, Mr. Jackson was examined by his physician, who found that the medications had leaked into the surrounding tissues. Mr. Jackson’s physician elevated the arm in a failed attempt to reduce the swelling. On the afternoon of May 2, Mr. Jackson was transported to the South Georgia Medical Center for advanced treatment.

A pretrial order revealed that Mr. Jackson was transported to  the medical center for the treatment of a blood clot that was found near his thumb.  During Mr. Jackson’s 24 day admission at the medical center, he underwent a multiple surgeries by an orthopedic surgeon, who was unable to salvage Mr. Jackson’s thumb.

Mr. Jackson’s attorney, Laura Shamp, filed suit against Coffee Regional and five treating nurses in 2007 alleging that Mr. Jackson was unable to work due to frequent hospitalizations caused by diabetes and pancreatitis, but that:

…the hospital gave him a ‘job’ of living without his thumb for the rest of his life, so he should be paid for it.

“Their defense was that the IV did not infiltrate and that even if it did, that was not what caused the loss of his thumb,” said Shamp. “They said it was simply that strange things happen and this was a coincidental blood clot that ended up contributing clotting at the same time.”

With the plaintiff’s permission, the named nurses were dismissed with the hospital remaining as the sole defendant. The Coffee County jury awarded Mr. Jackson $53,026 for medical expenses and $1.5 million for pain and suffering.

Wife suffers second-hand asbestos exposure from husband's clothes. CA jury awards her huge verdict.

Friday, May 28th, 2010

Bobby Evans was a loyal employee of the Los Angeles County Department of Water and Power (DWP) for nearly 25 years. Little did he know, he was exposing his wife to second-hand asbestos.

Rhoda Evans, wife of retired DWP worker Bobby Evans, was diagnosed with mesothelioma after years of washing Mr. Evans’ clothing that had been coated daily in asbestos fibers. For nearly 25 years, Mr. Evans unknowingly worked cutting cement water pipes that contained asbestos and brought these dangerous fibers home with him on his clothing. Certain Teed Corporation, the supplier of the asbestos cement pipes, neglected to warn consumers of the risks in using their products containing harmful substances.

Certain Teed Corporation had known about the risk factors of working with asbestos materials since the 1960′s, yet never placed warning labels on their products until 1985. By 1985, it was too late for Rhoda Evans, who now suffers from  a life-threatening, incurable cancer.

Mrs. Evan filed suit against the Certain Teed Corporation with the following accusations:

Certain Teed actually concealed the risk of asbestos exposure from DWP officials “in an effort to protect the $40 million in annual revenues the company made on selling asbestos-containing cement pipe to the county.”

The LA Department of Water and Power was also held partially responsible for the compensatory portion of the award for its failure to adequately protect Bobby Evans on the job.

Mrs. Evans was awarded $8.8 million for compensatory damages and an additional $200 million to be paid by the Certain Teed Corporation for punitive damages.  Attorney’s for the Corporation feel that the punitive damages award is unconstitutional and plan to appeal the verdict.

Since 1929, an estimate of 600,000 lawsuit have been filed for mesothelioma and asbestos disease. Whether the punitive damage award is lessened in the case of Mrs. Evans is unknown; however, it is expected to encourage manufacturers to settle such cases out of court, as opposed to trying them before a jury. Hopefully, this message sent by the jury will resonant among the manufacturing community as well: if you are aware of potential dangers to the users of your product, you better warn people about that danger while you are taking pr0active steps to correct it!