Consumer Advocate Legal Update : Class Action Lawyers & Attorneys : Khorrami Pollard & Abir Law Firm : Mass Torts, Products Liability

On my way to work today I was listening to my usual talk radio show and a male caller called in asking about menopause. He basically wanted to learn more about it because his wife was going through it and he knew nothing about it except that it was a “medical condition”. This comment bothered me, not so much because I am a women and defensive about the topic, but because it mirrored the opinion of pharmaceutical companies, that for years made a fortune on hormone therapy drugs convincing people of just that…….that menopause was a condition that must be treated.

Recent articles in the New York Times and Huffington Post paint the picture of how Wyeth lured women into taking their hormone drugs, not only to retain their femininity, but to prevent heart disease, Alzheimer’s and dementia. Feel like a woman while warding off evil ailments, what woman would say no to that? They turned menopause into a disease that had to be treated. Women who every month would curse the day their menstrual cycle began were now dreading the day that it would end.

I must say Wyeth did a good job creating and spreading their image of menopause. Hopefully, the negative image will be replaced with what menopause really is…….a natural biological process, nothing more, nothing less. Until then, I guess I will just wait for my impending “medical condition” to kick in.
 

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KPA Moves Forward in Complex Litigation on Behalf of Women with Breast Cancer Linked to Premarin and Prempro

Two multi-million dollar verdicts in Philadelphia last week against pharmaceutical company Wyeth, a division of Pfizer, reinforce that juries are consistently finding the company responsible for breast cancer in women who took its Premarin and Prempro hormone replacement therapy (HRT) drugs.

And just last month, a ruling from the 8th Circuit Court of Appeals confirmed that Wyeth did wrong, and that juries should be permitted to hear this evidence and determine whether the company should be punished.

In the verdicts announced last week, juries awarded Donna Kendall of Decatur, Illinois $6.3 million in compensatory and $28 million in punitive damages, and Connie Barton of Peoria, Illinois $3.7 million in compensatory and $75 million in punitive damages.

Through an ongoing federal multi-district litigation mass tort action, Wyeth still faces lawsuits from more than 10,000 women nationwide who claim that the company’s drugs caused their breast cancer. Of the 12 verdicts announced to date, plaintiffs have been awarded money in 10 of the cases. Every jury that has been permitted to deliberate on punitive damages has returned substantial awards.

To date, winning plaintiffs have been awarded a total of more than $42 million in compensatory and $165 million in punitive damages. In addition, 13 women have settled their HRT claims with Wyeth or Pfizer outside of court.

Shawn Khorrami, founding partner of KPA, is a member of the Plaintiffs’ Steering Committee for the MDL litigation team, and his firm represents around 150 individuals pursuing cases against Wyeth.

A press release on the firm’s involvement with the litigation was released today. For more information on the Barton and Kendall verdicts watch the video below.
 

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A little while ago, I was at an event where an informal question and answer session was being conducted between two candidates for Assembly. One of the topics that stirred up a lively conversation was California’s Malpractice Injury and Compensation Reform Act of 1975(MICRA). When asked whether there should remain a $250,000 cap on pain and suffering in medical malpractice claims, one of the candidates said yes but that the cap should be raised. This response made little sense to me. Besides the fact that a number of sources have reported, that the main purpose of MICRA, which was to reduce healthcare costs, has been unsuccessful for 30 years, I don’t understand how raising the cap would achieve that goal any faster. If this candidate believed that there needs to be caps in order to keep healthcare costs down, then I don’t see how raising the caps would help. In other words, if the costs are down, which they are not, then why fix what isn’t broken. If the costs are high and we still need the cap to lower healthcare costs, then how would raising the cap lower costs when the existing cap did nothing to lower the costs for over 30 years?

It worried me that someone, who was educated, intelligent, and running for office, did not see the flaws in their understanding of MICRA. That they believed that the answer to this ongoing debate was to simply “raise” the cap, with no real thought as to what exactly the implications of that may be, if any. The bottom line is that more and more attorneys are unable to take malpractice claims for financial reasons, insurers reap the benefits of less and less lawsuits, and healthcare costs continue to rise so it seems that the ones who continue to be hurt by this Act are the very people whom the Act was intended to protect, the injured consumers.
 

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In California, you can legally drive a Chevy Suburban, but state law only requires you to carry $15,000/$30,000 liability insurance. Where is the sense in that? Your vehicle is capable of wreaking havoc in even the most minor of accidents.   Moreover, if you cause a serious injury because of your negligence, and are “judgment proof,” as many people driving on California roads are, there is a very low likelihood that the person you hit is going to be adequately compensated from your minimal insurance policy. Put the shoe on the other foot. What if you are walking to dinner, and struck in a cross-walk by an inattentive person driving their brand new Cadillac Escalade carrying the minimum insurance required by law, and you sustain a broken femur. Is $15K going to adequately compensate you for the months of physical therapy you will have to undergo to rehabilitate from that injury? What if you have to take of months of work? You would be seeking your loss of earnings from that same $15,000 policy.

One of the more frustrating (and sometimes heartbreaking) things that I often come across representing catastrophically injured parties is either the total lack of uninsured motorist (UM) coverage or totally inadequate limits, such as a $15,000/$30,000 UM policy.  I think back to a recent wrongful death case where the plaintiff’s decedent was struck by an underinsured SUV that ran a stoplight, and the family had only a $15,000.00 insurance policy to chase. They ended up losing their home because there simply was not a viable defendant to pursue for that loss.

What is even more frustrating to me is that consumers are unaware of the relatively low cost to “up your coverage.” Oftentimes, for less than another$60- $100/year in premiums, you can purchase 100K/100K UM coverage or even higher. I actually recommend carrying at least 500/500 UM coverage if you drive in California. There are many uninsured drivers out there. Remember, it is your responsibility to protect yourself in advance. Think about what kind of money you would need to tide your life over while you recover from a major injury if the person who injures you is uninsured/underinsured. Even the most aggressive personal injury plaintiffs’ lawyer will not be able to extract blood from a turnip if there are inadequate assets to pay a judgment.

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In the largest settlement in United States Justice Department history, Pfizer agreed to pay $2.3 billion to settle claims of misbranding and off-label marketing of a number of its pharmaceutical products.  While the settlement covered 13 different drugs manufactured by Pfizer and its various subsidiaries including Pharmacia & Upjohn, the primary focus was on the conduct related to the anti-inflammatory drug Bextra, which was withdrawn from the market in 2005 amid reports of increased risk of heart attacks, strokes, toxic epidermal necrolysis, and Stevens Johnson Syndrome, a potentially fatal skin disease.  

The investigation of Pfizer and its questionable marketing practices was initiated as the result of whistleblowers inside the company. Sales representatives drew the line at attempts to increase profits when those sales meant risking the lives of the drug consumers. One would hope that a settlement of this magnitude would cause a major philosophical change in the way the drug companies do business in the future, but that prospect is unlikely because of the sheer profits to be made in this industry. Pfizer reported revenues of $48.3 billion in its latest annual review and had reserved funds to cover this settlement in 2008. 

An ‘agreement’ to plead guilty to a felony charge and pay $2.3 billion ($1.3 billion in fines, and an additional $1 billion to state and federal authorities to resolve civil allegations of fraud) might present a public relations nightmare, but Pfizer did not blink. Citing their dedication to healing and better health, a Pfizer spokesperson stated they were proud of the actions they have taken to strengthen their internal controls to comply with state and federal laws regulating their practices.   Pfizer also stated that corporate integrity is a top priority for the company and the conclusion of this matter allows Pfizer to focus on what they do best. 

What they do best according to Mike Loucks, acting U.S. Attorney for the District of Massachusetts, is blatantly disregard the law. While negotiating yet another agreement to resolve criminal conduct of Warner-Lambert, its newly acquired subsidiary, Pfizer was itself violating the same laws. Attributing unproven beneficial aspects to certain products while concealing potentially fatal risks, and bribing doctors are criminal activities, yet no one went to jail. There is no personal accountability here, which is why we will see this type of behavior repeated by other pharmaceutical companies. 

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After the Supreme Court’s decision in Riegel v. Medtronic, which, in a nutshell, took away a consumer’s right to sue a medical device manufacturer for injuries and/or death caused by their faulty devices if the device had received FDA approval, Congress introduced the Medical Device and Safety Act which will restore a consumer’s right to state tort remedies.    

Is there really a doubt that this needs to pass? For 30 years state law and FDA regulations worked together to ensure the safety of medical devices both pre and post approval and then with one flawed decision, injured consumers were stripped of their ability to hold medical devices liable. Now, so long as they receive FDA approval, they are immune. That’s an interesting concept, seeing that the manufactures are the ones that conduct their own studies, and then submit their findings to the FDA for approval. Basically, the manufacturers are the ones approving their own products and then they are in the clear.  There was already a concern about the “findings” from their studies that they used to get the approval but now there is the added concern that the medical device manufacturers have absolutely no incentive to conduct post-approval safety studies of their products? 

Currently, if a patient is implanted with a faulty medical device and endures injuries and hospitalizations, the medical bills are the responsibility of the patient and in some cases the taxpayers. So, in short, a medical device manufacturer can conduct its own studies, submits its results for FDA approval and then once approved sit back and let the profits come in while the general public is left footing the bill for any problems with their products.  

Any argument made against the passing of this bill does not compare to the necessity of this bill for public safety reasons.    Here is an idea for the manufacturers who are against the passage of this bill, conduct proper pre-market studies, warn about any safety problems learned of post –market and recall devices that have problems. It may be a stretch but I am confident that if those few simple steps are followed the manufacturers wouldn’t be affected by the passage of this bill.

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