Cincinnati Personal Injury Lawyer

THE FUTURE OF AUTOMOTIVE PRODUCT LIABILITY

2009-06-01T19:12:00.001-07:00

THE FUTURE OF AUTOMOTIVE PRODUCT LIABILITY CLAIMS FOLLOWING AUTOMOTIVE BANKRUPTCY

GM and Chrysler have both now filed for bankruptcy, and the future of pending civil claims involving many injured individuals as a result of defective products (seat belts, roofs, gas tanks, air bags, etc.) is looking ominous.

As a product liability lawyer, I have had the honor of representing individuals, including children, who have been permanently injured due to manufacturing negligence. Currently, The Lyon Firm is active in automotive product liability and is representing a nineteen year old women from Shelby Ohio who was paralyzed due to a defective lap belt and seat design in a Pontiac Grand Am. At the time of the accident, she was a passenger in the middle rear seat when the car sustained a head on collision with a tree. During the impact, she sustained injuries to her lower lumbar and abdomen. The injuries have left her without any bladder control and partial paralysis in her lower extremities. She will never walk without assistance again and will need ongoing medical care. GM was well aware of the defective lap belt and defective seat for decades prior to manufacturing the 2000 Grand Am in which my client was riding.
Now, due to additional neglect in the company, it appears that many personal injury victims who sustained injuries and death from automotive defects in GM and Chrysler vehicles will go uncompensated. The effect of these bankruptcies will place an additional burden on the tax payer to provide medical care and assistance to these individuals and leaving the individuals grossly undercompensated for the injuries they sustained through no fault of their own.

THE STAY OF AUTOMOTIVE PRODUCT LIABILITY CLAIMS

At this time, the details of a product liability fund or appropriate course of litigation has not been announced but it is anticipated that there will be little recourse for these individuals. Currently, it is reasonable to assume the hundreds of automotive crashworthiness lawsuits being actively litigated across the country will be stayed pursuant to an automatic stay under Section 362 of the Bankruptcy Code.

The stay will likely include all claims that have been filed or could have been filed to recover any claim that arose prior to the commencement of the bankruptcy. [11 U.S.C. § 362(a)(1) (1993). If a stay is put into effect, it will likely cause all pending litigation to stop and may also prevent new cases from being filed until the bankruptcy court determines the stay should be lifted.

RELIEF FROM AUTOMOTIVE BANKRUPTCY FOR AUTOMOTIVE PRODUCT LIABILITY CLAIMS.

A court may grant relief from such a stay to allow a party to proceed under certain limited circumstances.
1. Relief would result in a partial or complete resolution of the issues;
2. There is a lack of any connection with or interference with the bankruptcy case;
3. The other proceeding involves the debtor as a fiduciary;
4. A specialized tribunal with the necessary expertise has been established to hear the cause of action;
5. The debtor's insurer has assumed ful responsibility for defending it;
6. The action primarily involves third parties;
7. The litigation in another forum would prejudice the interests of other creditors;
8. The judgment claim arising from the other action is subject to equitable subordination;
9. The moving party's success in the other proceeding would result in a judicial lien avoidable by the debtor;
10. The interests of judicial economy and the expeditious and economical resolution of litigation;
11. The parties are ready for trial in the other proceeding; and
12. The impact of the stay on the parties and the balance of the harms.

Bankruptcy Stay Authority: See, In re Mid-Atlantic Handling Sys., LL C, 304 B.R. at 130 (citing In re Ice Cream Liquidation, Inc., 281 B .R. 154, 165 (Bankr.D.Conn.2002)). See also In re Curtis, 40 B.R. 795, 799-800 (Bankr.D.Utah 1984) (utilizing same factors). All twelve factors are not necessarily present in a particular case, and a court need not rely on any plurality of factors in deciding whether to lift the automatic stay. In re Mid-Atlantic Handling Sys., LLC, 304 B.R. at 130 (citing In re Ice Cream Liquidation, Inc., 281 B.R. at 165).

AUTOMOTIVE PRODUCT LIABILITY CLAIMS ARE UNSECURED CREDITORS

In the rare event of removing the Stay, the future looks very difficult due to the classification as an un-secured creditor -- , i.e., the lowest level of priority in a very large pool of creditors. As a result, “The most likely result is they are going to get chewed up and get little if anything,” said Richard A. Zitrin, who teaches legal ethics at the Hastings College of the Law of the University of California in San Francisco. “They’re being put in a bucket with much more powerful forces, so they are going to be the low people in the pecking order.”

OPTIONS FOR PROTECTING AUTOMOTIVE PRODUCT LIABILITY CLAIMS IN BANKRUPTCY

There has been very little open discussion on the best manner to protect the pending and future product liability claims. However, this is a big issue not only for the injured but for any company that is going to be purchasing GM or Chrysler assets. It is in the future of liabilities that there has likely been more discussion, as any buyer will be concerned with assuming the past and future liabilities.

One way to protect all consumers would be for the bankruptcy court to require the new Chrysler to either set aside money to cover claims or require a special insurance policy, said Norman I. Silber, a law professor at Hofstra University, who specializes in consumer law. This would also protect a future buyer. This approach would work well for GM as well. The government should not overlook the product liability issues without coming to some solution. As mentioned above, the government will be stuck with the health bills, so they should require these companies to set up a system for taking responsibility for its past decisions. Unfortunately, these companies are the worst kind of offenders -- they hurt so many people and they cannot pay for the damage.

HYDROXYCUT RECALL FOR LIVER DAMAGE

2009-05-05T15:17:00.000-07:00

In a long legacy of recalls, which has included some of the worst mass torts in history, most notably phen fen, the diet industry has again shown its inability to monitor itself and provide a safe and effective product to consumers. Last week, Iovate in cooperation with the FDA issued a recall for numerous hydroxycut products, which are not believed to be connected to liver damage in consumers nationwide. Following the review of reported adverse events produced by the manufacturer, as well as reports in peer reviewed medical journals, the FDA concluded that hydroxycut products present a real risk of injury which includes liver damage and rhabdomyolisis (a condition that can lead to kidney failure).

The Lyon Firm is evaluating cases involving the following products: If you have taken these products and have suffered an injury, please call for a free consultation. Please also secure the bottle in a safe place and gather any medical records in your possession. These will be necessary for the review process.

HYDROXYCUT RAPID RELEASE REGULAR CAPLETS
631656893649 Hydroxycut 140ct Cap US631656833621 Hydroxycut 60 GNC US631656600988 Hydroxycut 300ct Caplets US631656890129 Hydroxycut 36ct Cap US "with CARDS"631656282245 Hydroxycut 160ct Cap US *Discontinued*631656873214 Hydroxycut 58ct Cap US631656813418 Hydroxycut 70ct Cap US631656808612 Hydroxycut 70ct Caps US *Discontinued*631656808117 Hydroxycut 100 cap US *Discontinued*631656818642 Hydroxycut 140ct Cap US *Discontinued*631656882414 Hydroxycut 80ct Caps US *Discontinued*631656843262 Hydroxycut 210ct Cap US631656828665 Hydroxycut 210 cap US *Discontinued*631656600582 Hydroxycut 60ct + 1 Hydroxycut Sachet WB US631656600476 Hydroxycut 72ct + Hydroxycut Sachet WB US631656600483 Hydroxycut 100ct Caplets US631656600506 Hydroxycut 150ct Caplets US631656601251 Hydroxycut 170 Caplets US631656600452 Hydroxycut 30ct Caplets US

HYDROXYCUT HARDCORE LIQUID CAPSULES
631656600650 Hydroxycut Hardcore 120ct US631656600834 Hydroxycut Hardcore 210ct US631656001778 Hydroxycut Hardcore 30ct US631656601435 Hydroxycut Hardcore 252ct US631656601848 Hydroxycut Hardcore 30ct US Trial - Bodybuilding.com631656601749 Hydroxycut Hardcore 120ct US NEW631656601763 Hydroxycut Hardcore 252ct US631656601756 Hydroxycut Hardcore 210ct US NEW
HYDROXYCUT CAFFEINE-FREE CAPLETS
631656801224 Hydroxycut Caffeine Free 140ct Cap US631656821246 Hydroxycut Caffeine Free 330ct Cap US631656801217 Hydroxycut Caffeine Free 100ct Cap US631656801231 Hydroxycut Caffeine Free 58ct Cap US631656899122 Hydroxycut Caffeine Free 36ct Cap US631656600544 Hydroxycut Caffeine Free 60ct US631656600551 Hydroxycut Caffeine Free 72ct US631656600568 Hydroxycut Caffeine Free 100ct US

HYDROXYCUT MAX CAPLETS
631656601466 Hydroxycut Max 120ct bonus + 1Hyd Max Sachet WB US631656601633 Hydroxycut Max 210ct Bonus + 1 Hyd Max Sachet WB US

HYDROXYCREGULAR DRINK PACKET
631656860191 Hydroxycut Weight Loss Drink Mix 21pk Sachet - Wild Berry US631656860313 Hydroxycut Weight Loss Drink Mix 21pk Sachet - Country Lemonade US

HYDROXYCUT HARDCORE DRINK PACKET (IGNITION STIX)
631656701326 Hydroxycut Hardcore Drink Mix 2.7g Sachet - Blue Raspberry US631656701319 Hydroxycut Hardcore Drink Mix 2.6g Sachet - Fruit Punch US631656760118 Hydroxycut Hardcore Drink Mix 40pk x 2g Sachet - Fruit Punch US631656760125 Hydroxycut Hardcore Drink Mix 40pk x 2g Sachet - Blue Raspberry US

HYDROXYCUT CAFFEINE-FREE DRINK PACKET
631656760095 Hydroxycut Caffeine Free Drink Mix 21pk x 3.6g Sachet - Raspberry Ice US

HYDROXYCUT MAX DRINK PACKET
631656860375 Hydroxycut Max Drink Mix 40pk x 2.4g Sachet - Wild Berry US631656860382 Hydroxycut Max Drink Mix 40pk x 2.7g Sachet - Lemonade US

HYDROXYCUT LIQUID SHOT
631656800159 Hydroxycut Weight Loss Single Shot 2oz - Wild Berry US631656860207 Hydroxycut Weight Loss Shot 2 x 2oz Pk - Wild Berry US631656860498 Hydroxycut Instant Weight Loss Shot 12 x 2oz - Wild berry US

HYDROXYCUT MAX AQUA SHED
631656601855 Hydroxycut Max Aqua Shed 60ct Capsules US

HYDROXYCUT HARDCORE RTD
631656860436 Hydroxycut Hardcore 4 x8oz RTD - Grape Infusion US631656860399 Hydroxycut Hardcore 4 x 8oz RTD - Triple WildBerry US631656860665 Hydroxycut Hardcore 12-pack RTD - Grape Infusion US631656860467 Hydroxycut Hardcore 3 x 4-pack RTD - Grape Infusion US631656860443 Hydroxycut Hardcore 3 x 4-pack RTD - Triple Wildberry US631656860443 Hydroxycut Hardcore 3 x 4-pack RTD - Triple Wildberry US631656860568 Hydroxycut Hardcore 12-pack RTD - Triple Wildberry US

HYDROXYCUT 24
631656600933 Hydroxycut 24 (96 caps/ blister pack) US

HYDROXYCUT CARB CONTROL
631656800036 Hydroxycut Carb Control 58ct Cap US631656800029 Hydroxycut Carb Control 100ct Cap US631656800012 Hydroxycut Carb Control 140ct Cap US

HYDROXYCUT NATURAL
631656600889 Hydroxycut Natural 100ct US

Please note that Hydroxycut Hoodia and Hydroxycut Cleanse products are not included in this recall; nor are any other Iovate products.

Mako 282 Defects

2009-04-30T14:18:00.000-07:00

NATIONAL CLASS ACTION REMAINS PENDING FOR MAKO 282 and 28

A National Class Action remains pending in the Southern District of Florida related to the design issues affecting Mako 282 and Mako 28 offshore fishing vessels. The Lyon Firm is working with Peterson and Associates on behalf of Mako 282 owners who have experienced structural cracks in the hull. The Coast Guard found in 2004 that these boats have structural problems that may result in hull cracking and failure. Three class representatives are named in the case on behalf of 216 boat owners. If you would like more information about the case, please contact Joseph Lyon.

2009-04-15T18:46:00.000-07:00

EXPANDING THE MEDICAL MARKET BY EXPANDING THE STANDARD OF CARE FOR THE USE OF ANGIOPLASTY AND CORONARY STENTS

Modern medicine is big business. Cardiology is a 100 Billion dollar a year industry. As any business, the medical providers need new markets to grow the business. Consequently, physicians and hospitals promote and recommend surgeries that have little or no basis in science or have been proven to provide little medical benefit over more conservative approaches. The most common area of surgical abuse is in the area of interventional cardiology and the use of angioplasty and coronary stents.

A. UNNECESSARY CORONARY STENT PLACEMENT

The American College of Cardiology Guidelines require that a patient demonstrate objective evidence of ischemia prior to intervention. Furthermore, the FDA has only approved drug eluting stents to treat coronary artery disease where the lesion has been identified to be flow restrictive. However, many physicians routinely place drug eluting stents and older metal stents in coronary arteries for prophylactic purposes -- that is, to prevent the further development of coronary artery disease. Despite this common practice, there is no study to show that placing a stent is effective at slowing the progression of coronary disease. On the other hand, numerous studies have demonstrated success with medication in slowing the progression of coronary artery disease. Indeed there is no evidence that a stent is more effective than medication at preventing a future myocardial infarction than medication for patients with "stable angina".

Despite this evidence, many patients undergo angioplasty and stenting with minor chest pain and no evidence of ischemia. To justify the use of a stent, when questioned, a cardiologist will attempt to expand the definition of" stable angina" or allude to the procedure as art and science and filled with judgment. Both explanations are misrepresentations of the state of the art of medicine, and appear to be attempts to expand the potential pool of patience who qualify for the procedure.

One of the primary defenses in any medical malpractice action is the physician judgment. The defense uses this magical card to explain why a physician would take a certain action despite a lack of scientific data to support the action. Essentially, the defense focuses on the gray areas of medicine where there is no right or wrong answer. The theme that medicine is not an exact science is played and the physcian judgment defense fits perfectly to explain that physicians must make difficult decisions in light of little scientific data. In the context of interventional cardiology, with patients with stable angina and no evidence of ischemia, there is no judgment - the standard of care remains that medication should be used as opposed to a stent, because the risk of stent thrombosis and death outweighs any benefit of the stent.

Incredibly, when faced with a patient with moderate or non-significant disease, Physicians often will not discuss the available options with medication or the clinical trials that show that medication is as beneficial as intervention. The failure to discuss treatment options is a breach of informed consent. If you or a family member suffered an adverse event following the placement of a drug eluting stent, catheterization, or, angioplasty, please contact Mr. Lyon through the contact form at http://www.thelyonfirm.com/.

New FDA Warning on Dietary Supplement HYPERDRIVE 3.0

2009-01-27T18:19:00.000-08:00

The FDA issued warning on a dietary supplement HYPERDRIVE 3.0 due to the presence on a controlled substance, sibutramine. Dietary supplements are not reviewed by the FDA pre-market. The lack of oversight presents the safety hazard of products reaching the market with dangerous ingredients such as sibutramine.

The dietary supplement industry has a terrible history, including phen-fen and ephedra products that injured thousands of consumer. Despite the lack of oversight, and history of problems, the products remain very popular and often present unknown health risks to consumers.

Until the FDA takes an active, pre-market, approach, the public will continue to be exposed to dangerous dietary supplements.

Reducing Medical Errors with Electronic Medical Records

2009-01-27T18:00:00.000-08:00

The Obama administration has prioritized funding allocated for electronic medical records. This approach is in line with the CBO's report on medical errors resulting from poor communication within the field. Despite the common sense approach and clear benefit to health care providers and patients, some medical groups are resisting the movement towards electronic medical records claiming the cost with not outweigh the benefit. This argument appears to be based in risk management policies and attempts to limit the available evidence to evaluate and criticize medical care.

The electronic medical records will allow physicians to share information in a more timely fashion, allow emergency room physicians real time access to a patient's history, and further reduce mistakes with handwriting and records routing. In my experience evaluating medical malpractice cases, many injuries would have been avoided had the physician had the information at the appropriate time. Many mistakes arise from test results not being communicated to a family physician or an emergency room physician being unaware of a patient's history. One of the most common mistakes are medication errors, which can be readily reduced through electronic medical records and software.

2008-08-26T18:57:00.000-07:00

CAMP LEJEUNE WATER CONTAMINATION LAWYER

The Lyon Firm is now accepting cases nationwide related to the water contamination at Camp Lejeune. From 1958 to 1985 military families were exposed to contaminated drinking water which caused the following health problems and complications: The Navy has issued notice to some families regarding their possible exposure to contaminated drinking water. However, the scope and effectiveness of the notice is unknown. It is highly probable that many families remain unaware of the exposure and may have been living with disabilities caused by the exposure. The causal connection can be complicated in environmental cases; however, the following types of health complications, adverse reactions, and injuries have been associated with the toxins found at Camp Lejeune.

CAMP LEJEUNE BIRTH DEFECTS

Small for gestational age
Low birth weight
Fetal death
Major heart defects
Neural tube defects
Oral cleft defects (including cleft lip)
Chonal atresia (nasal passages blocked with bone or tissue)
Eye defects
Low birth weight
Miscarriage
Major malformations
Neurological effects (delayed reaction times problems with short-term memory, visual perception, attention, and color vision)

CAMP LEJUENE CANCERS

Hodgkins disease
Non-Hodgkins lymphoma
Cervical cancer
Kidney cancer
Liver/biliary cancer
Ovarian cancer
Leukemia
Prostate cancer
Non-Hodgkins lymphoma
Bladder cancer
Breast cancer
Lung cancer

CAMP LEJEUNE CHEMICALS
Independent toxicology tests have confirmed the increased level of:

trichloroethylene (TCE)
dichloroethylene(DCE)
tetrachloroethylence (PCE),
and in their degraded forms, benzene, methyl chloride, and vinyl chloride.

The chemicals came from several negligent acts including the negligent disposal of waste, industrial operations, and leaking underground storage tanks .

For more information see the following:

The Few, The Proud, The Forgotten
US Environmental Protection Agency
Camp Lejeune Water Study

Contaminated Bone Allograft News Stories With Joseph Lyon

2008-08-05T20:06:00.001-07:00

Joseph M. Lyon was one of the first lawyers in the country to investigate and represent an individual in a civil case arising from the BTS and Medtronic allograft tissue contamination that was being used in spinal surgeries.

Currently the litigaiton is unresolved. The Associated Press interviewed Mr. Lyon about the notice and medical tests which showed some Plainitffs had the AIDS or hepatitis virus or syphilis bacteria - all of which can be acquired from infected tissue. The story received national and international coverage by CBS, Canadian TV, and MSNBC.

Above, Assistant District Attorney Josh Hanshaft displays an X-ray of an exhumed corpse showing that PVC plumbing pipes were inserted where the bones once were at a press conference in February. Michael Mastromarino, owner of Biomedical Tissue Services of Fort Lee, N.J., were charged along with three other men with carving up corpses and selling the parts. The parts then made their way into the distribution chain without proper FDA testing. As a result, all patients who received the parts were put at risk for infection.

MRI Dangers

2008-07-26T11:13:00.000-07:00

As discussed on the home page, on June 6, 2006 and December 22, 2006, the FDA and GE Healthcare issued a safety advisory for Omniscan® (gadodiamide), its gadolinium-containing contrast agent, warning physicians that the use of Omniscan contrast medium in magnetic resonance imaging (MRI) or magnetic resonance angiography (MRA) in patients with pre-existing renal (kidney) issues may lead to that patient developing a rare disease called nephrogenic systemic fibrosis (NSF). The disease is also known as nephrogenic fibrosing dermopathy (NFD).

Omniscan® is a contrast agent commonly used by physicians in MRI and MRA; it is a colorless, non-radioactive, water-like fluid. During an MRI or MRA, gadolinium based contrast agents such as Omniscan are injected into veins of the patient so that the physician can view a clear and detailed picture of a patient’s internal organs, bones, vessels, and/or tissue. Contrast markers bond with damaged or diseased tissues, giving doctors a clearer picture of potential problems. GE Healthcare first launched Omniscan® in the United States in 1993. It is one of a group of five gadolinium-based injections which have been approved by the U.S. Food and Drug Administration (FDA), which also includes Magnevist®, MultiHance®, OptiMARK® and ProHance®.

NSF is an emerging systemic disorder that is characterized by widespread tissue fibrosis. It first became known to the medical community in 1997 and to date, has only been observed in patients with kidney disease. Patients with NSF experience an increase of collagen in the tissues, causing thickening and hardening of the skin of the extremities and often resulting in immobility and tightening or deforming of the joints. NSF can develop rapidly and may result in patients becoming wheelchair bound in just a few weeks. In some cases, there is involvement of other tissues, including the lungs, heart diaphragm, esophagus and skeletal muscles. In some instances NSF can lead to death. Other signs and symptoms of NSF include: Burning, Itching, Swelling, Hardening and tightening of the skin, Red or dark patches on the skin, Yellow spots on the whites of the eyes, Stiffness in joints and difficulty moving limbs, Bone pain in the hips or ribs, Muscle weakness.

Studies investigating the relationship between NSF and gadolinium are currently underway at Yale, the Centers for Disease Control (CDC), the FDA and the medical regulatory agencies of the European Union. After accumulating numerous reports of NSF in patients, the FDA issued public health advisories in June and December 2006 which advised cautionary use of all gadolinium-based contrast agents in patients with moderate to advanced renal disease.

Most recently, on May 23, 2007, the FDA asked manufacturers to include a new boxed warning on the product labeling of all gadolinium-based contrast agents. The requested warning would state that patients with severe kidney insufficiency who receive gadolinium-based agents are at risk for developing a debilitating, and a potentially fatal disease known as nephrogenic systemic fibrosis (NSF). In addition, it would state that patients just before or just after liver transplantation, or those with chronic liver disease, are also at risk for developing NSF if they are experiencing kidney insufficiency of any severity.

There is no effective treatment available for NSF.

Kugel Mesh Injuries

2008-07-26T11:01:00.001-07:00

Since late 2005, several different recalls have been issued for the Composix Kugel Mesh Patch over product defects. The FDA sent Advisory letters were sent to the Chief of Surgery, Hospitals, and distributors warning of the . The patches, which are used in the treatment of ventral hernias, have flexible recoil rings that allow the device to be folded for insertion through a small incision and then spring back into shape once in place. The Food and Drug Administration, as well as our firm, has received numerous reports of these rings breaking and exposing rough, jagged edges—a problem that could lead to serious internal injuries in those implanted with defective devices. The problems and risks may not be limited to the recalled batches and have affected Ohio and Cincinnati residents.

More Label Changes for Atypical Antipsychotics

2008-07-26T10:43:00.000-07:00

ZYPREXA

Last December, The New York Times reported, “ Lilly’s own published data, which it told its sales representatives to play down in conversations with doctors, has shown that 30 percent of patients taking Zyprexa gain 22 pounds or more after a year on the drug, and some patients have reported gaining 100 pounds or more. But Lilly’s primary concern was that Zyprexa’s sales would be hurt if the company was more forthright about the fact that the drug might cause unmanageable weight gain or diabetes ….

Atypical antipsychotic medicines have become one of the biggest and fastest-growing drug classes . Overall sales for the category are projected at close to $13 billion this year, despite little evidence that the new drugs work better than older generics that cost just pennies a pill. Zyprexa, specifically, had global sales of more than $2.3 billion in the first half of this year and nearly 3 million prescriptions in the United States alone.

The Times went on to report that, Lilly documents revealed a 1999 email from Dr. Alan Breir (the chief scientist on the Zyprexa program) stating: “'Olanzapine-associated weight gain and possible hyperglycemia is a major threat to the long-term success of this critically important molecule. In response, Lilly expanded its marketing to primary care physicians, who its internal studies showed were less aware of Zyprexa’s side effects. Lilly sales material encouraged representatives to promote Zyprexa as a “safe, gentle psychotropic” suitable for people with mild mental illness. Furthermore, Lilly’s market research had found that many primary care doctors did not consider themselves qualified to treat people with schizophrenia or severe bipolar disorder.

The FDA has asked Lilly has been asked to add stronger warnings to the label of Zyprexa multiple times The label confirms that the drug has a tendency to cause weight gain, high blood sugar, high cholesterol and other metabolic problems. The warning comes (a) eleven years after first approval of sales, (b) 12 years after a large Lilly clinical trial first showed that Zyprexa might have negative effects on weight and blood sugar; and (c) after settling over 18,000 claims. Investigations and Third Party Payor claims are ongoing.

Nevertheless, Lilly continues to look for way to expand the market, and has asked the F.D.A. to allow it to begin marketing Zyprexa for adolescents, despite clinical trial data showing that Zyprexa causes weight gain and metabolic problems in teenagers that can be even more severe than in adults. Lilly also tried to expand the market to treat dementia. The FDA has advised against this indication for this class of drugs.

Ohio Claims for Damages to Health Plans

2008-07-26T10:38:00.000-07:00

THIRD PARTY PAYOR CAUSES OF ACTION

This summary offers a brief overview of available causes of action under Ohio law. The law in this area is very complicated in that it is a blend of common law and statutory construction, and the theories of recovery overlap between Tort and Contract Principles. Therefore, the law, including the cause of action, remedies, and applicable statute of limitations, must be analyzed within the context of a particular claim, while taking into account the specific facts supporting notice, liability, and damages. In order to allow full flexibility in the initial investigation and scope of the applicable causes of action, the decisions whether to pursue these claims should be made without delay.

Although the cases we are discussing involve products and liability arising from defective products, in the context of commercial payor, the courts generally do not treat TPP claims as product liability claim within the purview of Ohio's product liability statutes. [1] Rather, the trend in Ohio law is that claims for economic damages on behalf of commercial and corporate entities are better classified as contract claims. Regardless of whether the case rests in contract or tort, the fundamental crux of any pharmaceutical case is the corporate misrepresentation. In other words, the primary issues presented is whether the Fund would not have covered the drug or device and incurred the excess cost, if it had been properly informed about the drugs safety and effectiveness. Multiples avenues of relief are available to properly frame and litigate this issue.

As for the remedies, a corporate entity may recover damages which include:
1.1 Uniform Commercial Code (OH)

As with other Sales of Goods Contracts, damages that arise from the sale and purchase of medical products are compensable under the Ohio Revised Code for Sales Contracts. The causes of action include breach of Express and Implied Warranties. Essentially, these claims operate with the same affect as Strict Liability.

Remedies include “Past Direct, Incidental, and Consequential Economic Losses”: e.g, where the product was more expensive than cheaper, safer alternatives, the recovery then is the cost of the difference between the two drug options or reimbursement for the cost of the drug), or lost inventory/ replacement Costs where the Plan has purchased a large inventory of products that cannot be used or need to be replaced, as in the case of medical device cases;

“Future Direct, Incidental, and Consequential Economic Losses” where the plan has incurred additional costs for future health care as a result of the injuries the members suffered (the recovery would be the cost associated with the future care of the Plan’s members for related injuries.);

1.2 Ohio Deceptive Trade Practices Act Ohio has strong statutory causes of action arising from Deceptive Trade Practices. Pursuant to O.R.C. 4165.02, a consumer may recover for damages sustained by a Deceptive Trade Practices Act. “A person [or company] engages in a deceptive trade practice when, in the course of the person's business, vocation, or occupation, the person….Represents that goods …have…. benefits, or quantities that they do not have …or Represents that goods are … of a particular standard, quality …if they are of another

Remedies include: “Past Direct, Incidental, and Consequential Economic Losses”; “Future Direct, Incidental, and Consequential Economic Losses” ; and Punitive.

1.3 Ohio Consumer Sales Practices Act

Under O.R.C. 1345.03 (A), “No supplier shall commit an unconscionable act or practice in connection with a consumer transaction. Such an unconscionable act or practice by a supplier violates this section whether it occurs before, during, or after the transaction.” (B) In determining whether an act or practice is unconscionable, the following circumstances shall be taken into consideration…. Whether the supplier knowingly made a misleading statement of opinion on which the consumer was likely to rely to the consumer's detriment;

Remedies include: “Past Direct, Incidental, and Consequential Economic Losses”; “Future Direct, Incidental, and Consequential Economic Losses”; Treble Damages and Punitive.

1.4 Fraud

Under Ohio law, to maintain a claim of fraud, the plaintiff must plead: (a) a representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance. [2]

Remedies include: “Past Direct, Incidental, and Consequential Economic Losses”; “Future Direct, Incidental, and Consequential Economic Losses” ; and Punitive.
1.5 Unjust Enrichment

Under Ohio law, provided that no other cause of action is viable for recovery , the plaintiff by proving three elements, may recover for a claim of unjust enrichment: (1) a benefit conferred by the plaintiff upon the defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the benefit by the defendant under circumstances where it would be unjust to do so without payment.

Remedies include: “Past Direct, Incidental, and Consequential Economic Losses”; “Future Direct, Incidental, and Consequential Economic Losses”. Equitable remedy of disgorgement of profits.

2 SUMMARY CHART OF CAUSES OF ACTION

The below chart outlines summarizes the possible available causes of action and types of damages, as well as includes the applicable statute of limitations to initiate a claim. Please know that the statute of limitations depends on many factors, and these are general time frames. Tolling of the statues is available in some case. [3] These time frames should not be relied on without having an attorney review the case in detail to offer a comprehensive opinion. The law can be confusing to many lawyers and judges in this area because of the overlap between contract and tort law damages. The most conservative approach should be taken in order to preserve all potential claims.

CAUSE OF ACTION
AUTHORITY
DAMAGES
STATUTE OF LIMITATIONS

Breach of Express Warranty
(Sale of Goods)
O.R.C 1302.26
Past and Future direct, incidental, consequential
4 Years from date of breach[4]

Breach of Implied Warranty of Merchantability (Sale of Goods)
O.R.C 1302.27
Past and Future direct, incidental, consequential
4 Years from date of breach

Breach of Implied Warranty for Fitness for a Particular Purpose
(Sale of Goods)
O.R.C 1302.28
Past and Future direct, incidental, consequential
4 Years from date of breach

Fraud
Common Law
Past and Future direct, incidental, consequential, and Punitive
Four Years From Act or Discovery

Unjust Enrichment
Common Law
Equitable remedies available of reimbursement or disgorgement of profits.
Four Years from breach [5]

Deceptive Trade Practices Act
4165.02
Past and Future direct, incidental, and consequential
Two Years from act[6]

Consumer Sales Practices Act
1345.02;1345.03
Past and Future direct, incidental and consequential, Treble Economic Damages
Two Years from act[7]

2.1 The Phases of Case Development

In the event the Fund decides to retain counsel to litigate a TPP claim, the Three firms will form a committee to develop and assign the various tasks. Prior to engaging in formal litigation, the case or cases will be thoroughly investigated to outline all available claims and damages.

Phase One is an internal investigation to gather the specific facts related to your Plan and how it was adversely affected by the product at issue. This phase will include, but is not limited to:

1. Researching all available causes of action on elements of proof, damages, and statutes of limitations for all available venues;
2. Identifying any privacy issues that may complicate the review;
3. Interviewing Plan coordinators and administrators to identity the most efficient manner to search documents and databases;
4. Interviewing any specific medical consultants or physicians involved in selecting the drug/ or device for the plan;
5. Securing any necessary releases to review the relevant materials;
6. Gathering all relevant medical and business records and other materials;
7. Identify the number of prescriptions paid;
8. Identifying the primary costs of the prescriptions or devices;
9. Identifying the wholesale price of the product and whether this compares to other Plans;
10. Identifying alternative products and analyzing the costs difference;
11. Identifying the number of claimants who may have suffered adverse events and have had and/or will require health care to treat the adverse events;
12. Consideration of the value to your plan and strategy of a class action and adding other similarly situated plans to your claim.
13. Identifying any other expense incurred for the particular product.

Once the preliminary information is gathered, and we have a more comprehensive understanding of the value of a claim, we will present a formal paper outlining the value and research that was discovered in the first phase. Assuming the review identifies a valuable claim, will move to Phase II, which is formal litigation. Formal litigation will include:
1. Selecting the most favorable venue.
2. Filing initial pleadings and overcoming various Motions to Dismiss;
3. Issuing discovery and overcoming protective orders and motions to compel;
4. Coordinating our efforts with similar actions in other venues;
5. Obtaining all discovery that has been conducted in other litigations;
6. Issuing formal Discovery for corporate documents and depositions of designees and other corporate witnesses;
7. Presenting the financial impact through retained experts and conducting expert depositions;
8. Presenting the defective aspects of the drug/ device and failure to warn though retained experts and conducting expert depositions;
9. Presenting the related specific adverse events and cost of care for affected individuals though retained experts and conducting expert depositions;
10. Prevailing on Motions for Summary Judgment;
11. Preparing the case for Trial.
12. Engaging in formal mediation or other alternative dispute mechanisms to resolve the case.
13. In the event all settlement efforts fail, successfully presenting the case to a Jury.

[1] LaPuma v. Collinwood Concrete, 75 Ohio St.3d 64, 661 N.E.2d 714, Ohio,1996.
The law could very well be a shift in the courts through TPP cases. The policy considerations for applying strict liability in cases of defective products are consistent with the goals of TPP cases – i.e., that human life and safety are promoted by subjecting manufacturers of defective products to strict liability, to recognize that manufacturers are in a better position than those injured to internalize and redistribute the cost of injuries. Extending strict liability to TPP claims would have a strong deterent affect on the actions of the companies. Moreover, although the entity cannot experience harm, company is composed of its individual members who have suffered harm.

[2] Delahunt v. Cytodyne Technologies, 241 F.Supp.2d 827 (S.D.Ohio,2003.)

[3] Ohio recognizes , American Pipe, where the United States Supreme Court found that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.”

[4] A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. O.R.C. 2305.10
[5] An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. 1302.98 Statute of limitations in contracts for sale :
[6] Discovery does not extend to Deceptive Trade Practices claims; Plumbing and Pipefitting Industry Local 219 Pension Fund v. Buck, Slip Copy, 2007 WL 4287870 (N.D.Ohio,2007).

[7] Discovery rule applies only for Recission. There is no Discovery for money damages or treble Damages. Bales v. Isaac, Not Reported in N.E.2d, 2004 WL 1949419 (Ohio App. 2 Dist.,2004) . Rosenow v. Shutrump & Assoc.163 Ohio App.3d 500, 839 N.E.2d 82 (Ohio App. 7 Dist.,2005)

Health Plans Take More Action To Recover Costs of Defective Drugs

2008-07-26T10:22:00.000-07:00

When a drug or medical device company misrepresents the safety and/or efficacy of a drug or medical device, the financial consequences for the parties responsible for past and future health care are extreme. In the context of a Health Care Fund or Plan (“Fund”), a Fund, relying upon the marketing data presented by the manufacturer, unknowingly commits to paying for ineffective and/or unsafe products. The Fund is under the impression that the cost of the drug or device is justified since the benefits of preventative medicine will reduce the health costs from complications in the future.

However, when a company withholds data that is critical to the decision of whether to add a product to a Fund, the Fund is not in the best position to fully assess the risks and benefits of the product. Pharmaceutical recalls and litigations consistently reveal patterns of pharmaceutical companies placing marketing and sales ahead of patient safety. The conduct takes the shape of distorting clinical trial data, limited or no post marketing reporting, manipulating clinical trial design, and engaging in “off label” marketing campaigns. The New York Times reported last December that, “Nearly every company is under either civil or criminal investigation for alleged efforts to expand the use of its drugs beyond the specific illness or condition for which they are approved”.

When pharmaceutical companies mislead a Fund, the Fund unknowingly pays for more expensive and dangerous products, while increasing the health risk of its members and its financial exposure. The difference in costs between a quality alternative health care product and a defective product is often tens of millions and in some cases may be hundreds of millions. Lawsuits on behalf of health insurance companies, self insured health plans and union health plans (“Third Party Payors”) are designed to recover the TPP’s loss resulting from the companies’ conduct.

The Lyon Firm is investigation numerous claims for local and national union health plans.

Medical Malpractice: Delay in Diagnosing Breast Cancer

2008-07-26T09:55:00.000-07:00

A 38 year old women presents to her primary care physician complaining of a small cyst like bump on her right breast. She has no family history of breast cancer and has a clean medical history. Her physician exams the lump and, while assuring the patient that is looks like nothing, refers her to a surgeon down the hall to perform a simple needle aspiration. The surgeon draws some fluid and tissue and informs the patient that it didn’t seem like it was anything to worry about. He then informed the patient that he would call her if she needed to return for a follow up.

The surgeon proceeded to send the tissue slides to a local pathologist who read the slides as suspicious of cancer and informed the surgeon to contact the patient. Neither the patient nor the family physician was notified of the pathology concern. Two and a half years later, the patient returns to find that she has stage IIIB iinvasive ductal carcinoma, and she has a less than fifty percent chance of survival.

She undergoes radiation, chemotherapy, and a radical mastectomy which finds multiple positive lymph nodes. Although cancer free, she is likely to suffer a recurrence in five years at which time the cancer will be metastatic and terminal. During litigation, the treating physician testified that the patient should have called him to get her results. The Lyon Firm represented this women and her family and obtained a favorable settlement before trial. Though currently cancer free, she lived with the fear and reality that recurrence could happen any day.

The key to beating cancer is catching it early. Despite this well recognized concept, every year breast cancer goes undiagnosed and progresses resulting in significant loss of life for the affected patient and the loss of a mother, sister, or friend. The delay in diagnosis can result from a number of mistakes by the health care provider. Often, it is the result of miscommunication as in the case described above. Other examples of medical negligence in this area include:

Radiology Errors ( i.e., the Radiologist misreads films that show early stages.)
Pathology Errors (i.e., the Pathologist misreads slides that show early stages.)
Primary Care Errors (i.e., the PCP fails to identify a suspicious lump, cyst, mole and refer the patient for biopsy or other medical specialist.
Surgical Errors (i.e., the surgeon fails to perform a biopsy.)

For more information, See the following links:

Mayo Clinic
National Cancer Institute
The University of Texas, MD Anderson
US Department of Health and Human Services, Women’s Health
Web MD

Salmonella Outbreak With Mexican Jalapenos

2008-07-26T09:36:00.000-07:00

The FDA has determined that mexican jalapenos are responsible for the latest outbreak of salmonella. The outbreak has affected 1,300 people in forty-three states, and new cases are expected to be reported. Agricola Zaragoza, Inc. has recalled its products due to the concern.

Salmonella is a bacteria that causes Salmonellosis. Most people who have an infection with suffer minor symptoms of diarrhea, fever, and abdominal cramps for 12 to 72 hours after infection. The illness usually lasts 4 to 7 days, and most persons recover without treatment or severe medical problems. However, in some persons, the patient needs to be hospitalized. In these patients, the Salmonella infection may spread from the intestines to the blood stream, and then to other body sites and can cause death unless the person is treated promptly with antibiotics. The elderly, infants, and those with impaired immune systems are more likely to have a severe illness. The Center for Disease Control has additional information.

Tracker Marine Mako Boat Defect Leads to Class Action

2008-07-26T09:21:00.000-07:00

In 2004, the Coast Guard began receiving reports that Tracker Marine boat, Mako 282 had structural problems, including the cracks and loosening of the transom. The boat has been reported to flex extensively. A Coast Guard surveyor has declared at least one boat unseaworthy and has an open recall on the product.

However, the problem is not limited to one boat. The design of the boat affects all owners. The recall notice provides "the problem with this boat is not simple gelcoat cracking. There are significant structural problems with this boat that derive directly from design and construction. Specifically, the two feet that was added to the boat to extend it from 26 to 28 feet was not provided with adequate structural support to accommodate the weight of the outboard engines, which results in stresses in the hull that manifest themselves as cracks in the laminate. If left uncorrected, this lack of structural support ultimately will make the hull unseaworthy.” In response to the growing problem of defective boats, Congress addressed the issue.

The Lyon Firm has filed a Class Action on behalf on all owners of the Mako 282 in Federal Court in Florida. I will will update the blog as the case progresses.

Ignoring American College of Cardiology Guidlines

2008-07-23T13:51:00.001-07:00

A Maryland interventional cardiologist has resigned his hospital privileges after an internal audit revealed that he was placing stents in patients with 35% to 60% stenosis. In general, the American College of Cardiology recommends stent placement in patients with 70% stenosis; however, within certain, more aggressive circles of cardiologist, it has become more common for physicians to stent lesions that are less significant. In patients where there is no objective evidence of ischemia, there is no benefit to the patients, yet the care is more expensive and riskier.

Currently, The Lyon Firm is representing a Cincinnati family whose beloved husband and father suffered a heart attack following a stent placement in an artery that was less than 50% occluded. The patient did not have any objective evidence of ischemia on stress test, and the physician failed to implement other useful tools to assess whether the lesion was flow restrictive. There are several experts retained to defend this standard of care as "judgment call". The case in MD and the Cincinnati case demonstrate the over use of stents within this extremely profitable industry and the unjustifable risks.

Topomax Linked to Birth Defects

2008-07-22T07:13:00.000-07:00

The Medical Journal Neurology released a new study that indicates that Topiramate (Topamax) is Associated with Increased Risk for Birth Defects. Specifically, the trial showed that:

"The number of outcomes of human pregnancies exposed to topiramate is low, but the major congenital malformation rate for topiramate polytherapy raises some concerns. Overall, the rate of oral clefts observed was 11 times the background rate. Although the present data provide new information, they should be interpreted with caution due to the sample size and wide confidence intervals."

Over Use of Drug Eluting Stents

2008-06-18T21:04:00.001-07:00

STENTS PLACE MOST PATIENTS AT HIGHER RISK OF MI AND DEATH

For many patients, the implantation of a drug eluting stent will not add years to their lives or prevent an impending heart attack. In fact, the primary purpose for implanting the stent in patients who have not suffered a heart attack is to decrease angina (chest pain). Medication on the other hand has been show to be more effective at reducing heart attacks and death.

In other words, the physician recommends placing a metal device in the coronary artery where there are medication alternatives that provide the same or better long term survival. Despite this fact, patients undergo procedures every day that they would be better off avoiding. The physicians, hospitals and medical device companies in return make billions.

Since the studies have revealed that medication is more effective, angioplasty and stent placements are in decline.

See the NY Times Article for more information.

Digitek Injuries

2008-06-16T15:05:00.000-07:00

Digitek, a medication indicated for patients with heart failure and abnormal heart rhythms, was recently recalled by its manufacturer Actavis Totowa LLC. The recall is a Class One FDA nationwide recall of Digitek® (digoxin tablets, USP, all strengths) for oral use. A Class One recall is the most serious level of recalls.

The "all lot" recall is due to the serious potential that the pills were manufactured with double the approved thickness, which may contain twice the approved level of active ingredient. As a result, the drug, in its defective form, is recognized to pose a risk of digitalis toxicity in patients. Reports of hypotension, cardiac instability, bradycardia, and death have been reported.

For more informaton, see the following:

FDA Notice

Activis Consumer Question/ Answer:
Web MD:

The Lyon Firm is investigating these cases on a local and national basis.

Bush Supports New ADA Requirements

2008-06-16T03:56:00.000-07:00

The Bush Administration in an effort to address the needs of the many disabled veterans returning from Iraq is supporting additional changes to the American's with Disabilities Act, a bipartisan piece of legislation that requires businesses to make accommodations for disabled consumers. See today's New York Times Article for additional details:

The support conflicts with the Bush Administration's efforts to limit consumer's rights to challenge big companies when they have been injured by a defective product. Moreover, it is a tacit admission that the numbers of veterans affected by the Iraq war justifies such broad economic measures to assist those soldiers in their return to civilian life.

The U.S. Chamber of Commerce opposes such changes.

Glaxo May Have Mislead FDA on Paxil Suicide Risk

2008-06-15T09:32:00.000-07:00

GLAXO'S BLOCKBUSTER DRUG PAXIL HAS BEEN LINKED TO BIRTH DEFECTS AND INCREASED RATES OF SUICIDE

NEW INFORMATION SUGGESTS THAT THE COMPANY MANIPULATED A PIVOTAL TRIAL TO SHOW GREATER EFFICACY IN REDUCING SUICIDE.

When the proper analysis was performed, not only was the drug less effective at reducing suicide, but more participants committed suicide on the drug than on a sugar pill. This is yet another example that may shed additional light on the FDA's inability to adequately regulate Big Pharma.

Additional information on the Paxil links to persistent pulmonary hypertension (PPH).

New questions have emerged whether Glaxo intentionally misrepresented data on suicide risk when it applied to the FDA for approval. The company has denied this charge.

A study underwritten by Harvard and consumer advocates determined that Glaxo's study used for approval showed that the real risk for suicidality was 8 times the risk for un-medicated patients. Glaxo interpreted the data in a misleading fashion, and the FDA relied on the company's conclusions. Had the appropriate conclusion and risk been provided to the FDA when it was originally approved, the FDA would likely have added additional warnings. In 2004, the FDA did add warnings. And in 2006, the company issued a Dear Doctor letter advising the physicians that the drug posed a risk of 6.7 times that of placebo (sugar pill).

Although the true risk is now being disclosed, the delay has allowed for more profits and likely caused the un-necessary loss of lives. In light of the evidence, the studies should also be scrutinized to look for any evidence of birth defects as well.

Cincinnati Medical Malpractice: Unnecessary Drug Eluting Stent Placement

2008-06-01T15:19:00.000-07:00

With the introduction of the drug eluting stent (des), the criteria for coronary intervention has broadened. The standard of care for intervention and stent placement involves a clinically significant lesion (>70 percent occluded) with ischemic heart disease --, i.e., upon stress test, blood flow is limited. Please see the American College of Cardiology Guidelines:

However, physicians are closer to the medical device industry than ever, receiving grants, gifts, and are typically reimbursed per vessel; therefore, there is a strong financial incentive to intervene in multiple vessels and place an additional stent during the procedure, even though a lesion may not be symptomatic. This practice is concerning where lesions less than 70 percent occluded are being stented. While it is recognized as malpractice, many physicians argue that this is "clinical judgment".

This argument is not supported by the objective guidlines outlined in the literature or the FDA. The clinical data does not support that stent placements in non acute patients reduces the risk of myocardial infarction (MI) or Death. Therefore there is no clinical benefit to the patient. Nevertheless, the use of stents in "off label", i.e., in patients unapproved by the FDA, has reached 60% of all stent surgeries. This means that 60% of all patients undergoing des placement are undergoing surgery where the available data does not prove it is safe or effective for them. Indeed, the introduction of a stent for these patients may in fact increase the risk of MI and death. Furthermore, patients have to stay on Plavix (a very strong blood thinner) indefinitely, which adds risks of severe bleeding. Please see the FDA comments on "off label" uses:

For those patients who suffered side effects, adverse reaction, including MIs, strokes, or death, they may consider a medical malpractice claim to investigate whether a stent was appropriate in their loved one.

Ohio Tort Reform "Losing Our Democracy"

2008-05-31T17:28:00.000-07:00

The insurance, pharmaceutical, and automotive industries have spent billions of dollars on propaganda and campaign contributions to eliminate the risk of lawsuits. In doing so, many Americans are foregoing their rights to pursue claims within the civil justice system because the propaganda has made them feel as if tort (injury suits) cases are unjust handouts that hurt the economy. Incredibly, tort cases make up less than 10 percent of all cases filed and are being filed even less frequently. The largest percentage of filings are corporations suing other corporations.

In Ohio, the Supreme Court has issued several business friendly decisions including Arbino v. Johnson and Johnson. Despite a long history of finding damage limitations (caps) unconstitutional, the Court, with strong financial support from the insurance and medical indutries, found that the recently passed damage laws were constitutional.

The effect of such legislation takes the voice of juries away. Despite the impression of the public that there are many runaway juries, the reality is that this a extremely rare event, and in those cases, there are safeguards already in place where the presiding judge can remove or reduce the verdict. By allowing the legislation and Judges who accept large campaign contributions to take away the american public's right to trial by jury is yet another example of us losing our democracy. The jury system is built on the concept that the educated public can deliberate and render the most objective decisions where the litigants can not resolve the disputes on their own. Legislation that takes away a jury's opportuninty to deliberate and make a decision is in essence saying that "the jury", i.e., the american public, is not smart enough to make these decisions.

There are many individuals that will never be convinced that the civil justice system is a necessary and critical element in deterring corporate conduct and compensating victims. By allowing companies to pay less for the injuries they cause, the financial burden is shifted to the american public through medicaid and medicare. Furthermore, the risk of a larger judgment is elimited and companies can predicate whether making a safer product is more expensive than selling a defective one and paying those individuals who will be injured. Those citizens who have petitioned for tort reform have likely never needed the system.

Unfortunately, people who need the system for long term care of injured family members are stigmitized for using their rights and questioning why they were hurt and their life changed for ever. It is a sad day in this country when corporate profits are placed ahead of the rights of individuals both in and outside the courtroom. I am hopeful that as the new change in this wonderful country takes place, that we will come to again recognize the beauty of asking questions and value deliberation and the right to govern ourselves.

Preemption Ruling in Drug Eluting Stent Litigation

2008-05-29T06:18:00.000-07:00

In light of the recent Supreme Court ruling in Riegel v. Medtronic, the viability of the claims against the manufacturers (Boston Scientific and Cordis and J&J) of drug eluting stents (DES) has been unknown. The DES litigation in Palm Beach County, in the case of O'Shea v. Cordis, was one of the first cases to raise these issues post-Riegel. Judge Kelley carefully considered these complex issues and even recognized that : " The difficulty is determining what is and what is not a parallel claim." The Order was split and found that certain claims are preempted and also found that several claims were not preempted.

The following claims are preempted:
1. All common law negligence and strict liability claims to the extent the claims are based upon approved FDA design and labelling;
2. Unfair Trade Practices
3. Fraud on FDA or Fraud based upon approved labelling or brochures.

The following claims are not preempted:
1. Negligence claims based upon "Good Manufacturing Standards";
2. Express Warranty claims
3. Fraud on the physician/ patient

The Order leaves open confusion with regard to "parallel claims". Primarily, the Order does not address whether claims based on federal regulations, other than Good Manufacturing Practices, are preempted. Reigel suggests that claims based upon a breach of federal law (duty) are not preempted. The language in the opinion suggests that claims based on federal regs, in adddition to GMP, but the Court did not specifically address the impact of federal regulations outside of GMP. The Plaintiffs steering committee, which I am a member of, is in the process of deciding the next step in this important battle.