P.I.S.S.D. -- Personal Injury, Social Security Disability. Dallas Texas Lawyers

Studies On Chemical In Plastics Questioned - FDA

The Washington Post has an article today that illustrates the fallacy in the current trend of the Bush administration and the U.S. Supreme Court to push the doctrine of "preemption." This is the legal theory that basically states if a federal agency approves a product, then consumers are forbidden to file any claims for damages caused by that product. The argument against premption is that the government is starving the federal agencies by reducing their budgets, thereby reducing their abilities to adequately test products. The story is about safety concerns with the chemical compound bisphenol A (BPA). Here are excerpts.

Despite more than 100 published studies by government scientists and university laboratories that have raised health concerns about a chemical compound that is central to the multibillion-dollar plastics industry, the Food and Drug Administration has deemed it safe largely because of two studies, both funded by an industry trade group.

The agency says it has relied on research backed by the American Plastics Council because it had input on its design, monitored its progress and reviewed the raw data.

The compound, bisphenol A (BPA), has been linked to breast and prostate cancer, behavioral disorders and reproductive health problems in laboratory animals.

As evidence mounts about the risks of using BPA in baby bottles and other products, some experts and industry critics contend that chemical manufacturers have exerted influence over federal regulators to keep a possibly unsafe product on the market.

Congressional Democrats have begun investigating any industry influence in regulating BPA.

"Tobacco figured this out, and essentially it's the same model," said David Michaels, who was a federal regulator in the Clinton administration. "If you fight the science, you're able to postpone regulation and victim compensation, as well. As in this case, eventually the science becomes overwhelming. But if you can get five or 10 years of avoiding pollution control or production of chemicals, you've greatly increased your product.

Scientists first flagged possible health risks of BPA more than a decade ago. From 1997 to 2005, 116 studies of the compound were published, many of them focused on its effects in low doses. Of those funded by government, 90 percent showed a health effect linked to BPA. None of the industry-funded studies found an effect; all of them said BPA is safe.

Drug Makers Near Old Goal: A Legal Shield

I wrote recently about the legal doctrine of pre-emption that is threatening to steal legal rights from American consumers. Now the New York Times has published a lengthy but excellent article on the subject of the legal shield sought by drug manufacturers. Here are excerpts, but I encourage you to read the article.

The Supreme Court appears to be on the verge of endorsing a doctrine that the F.D.A. should not be second-guessed by courts.

For years, Johnson & Johnson obscured evidence that its popular Ortho Evra birth control patch delivered much more estrogen than standard birth control pills, potentially increasing the risk of blood clots and strokes, according to internal company documents.

But because the Food and Drug Administration approved the patch, the company is arguing in court that it cannot be sued by women who claim that they were injured by the product — even though its old label inaccurately described the amount of estrogen it released.

This legal argument is called pre-emption. After decades of being dismissed by courts, the tactic now appears to be on the verge of success, lawyers for plaintiffs and drug companies say.

The Bush administration has argued strongly in favor of the doctrine, which holds that the F.D.A. is the only agency with enough expertise to regulate drug makers and that its decisions should not be second-guessed by courts. The Supreme Court is to rule on a case next term that could make pre-emption a legal standard for drug cases. The court already ruled in February that many suits against the makers of medical devices like pacemakers are pre-empted.

A series of independent assessments have concluded that the agency is poorly organized, scientifically deficient and short of money. In February, its commissioner, Andrew C. von Eschenbach, acknowledged that the agency faces a crisis and may not be “adequate to regulate the food and drugs of the 21st century.”

The F.D.A. does not test experimental medicines but relies on drug makers to report the results of their own tests completely and honestly. Even when companies fail to follow agency rules, officials rarely seek to penalize them. “These are scientists, not cops,” said David Vladeck, a professor at Georgetown Law School.

The Ortho case, however, suggests that Johnson & Johnson, like other drug makers, is not always quick to tell the F.D.A. about potential problems with its medicines.

Consumers Beware - Pre-emption By Preamble Steals Your Legal Rights

Recent actions by federal regulatory agencies, combined with a U.S. Supreme Court decision are extremely troubling to consumer advocates. The gist of the problem is that federal agencies under the Bush administration are taking the stance that their rules trump state court verdicts.For example, if a federal agency said a prescription drug was safe, then a state jury verdict finding the drug to be unsafe would be void.

Aside from the overarching argument that federal agencies have no constitutional right to exert control over state courts, the problem with this approach is that political considerations can decide whether the agencies find certain products to be safe. If a giant pharmaceutical company makes a large contribution to a presidential candidate, there will be a natural tendency for the president to influence the federal agency to protect the financial interests of the pharmaceutical company. Some consumer advocates think that's exactly what's happening now.

Who gets hurt by this process? Consumers who have legitimate legal claims against manufacturers, but are prevented from filing those claims.

The Dallas Morning News ran an interesting story about this Pre-emption by Preamble." Here are excerpts.

If you think the prescription drug you took for headaches caused your heart attack, the Food and Drug Administration says you can't sue the maker for injury if it met agency standards.

The Consumer Product Safety Commission says you can't sue a mattress maker if your mattress bursts into flame despite meeting commission standards. Companies making sport utility vehicles would get similar protection from suits brought by people injured or the families of those killed in rollovers under National Highway Traffic Safety Administration proposals for stronger roofs.

Plaintiffs' attorneys call it "silent tort reform." But it's part of tension existing since the nation's founding: conflict between state and federal law.

If they clash, state laws give way. That's in Article Six of the Constitution. But in areas where there is no federal law, federal courts must defer to laws of the state where a lawsuit is heard. That includes product liability.

A developing body of judicial opinion could place new limits on the rights of those who buy or use products, consumer advocates say. It also could mean the savings of billions of dollars by companies insulated from lawsuits.

What's riling plaintiffs' lawyers, consumer groups and some regulators is agencies' assertions their rules override state product liability laws. Most such claims are rooted in statements in the introductions to their rules, not the rules themselves.

"These pre-emption preambles may be only the beginning," New York University law professor Catherine Sharkey wrote in the DePaul Law Review. She projected preambles may "displace competing or conflicting state regulations or common law as a matter of course."

The practice varies by agency but is spreading. "It's absolutely a trend," said Deepak Gupta, staff lawyer for Ralph Nader's public citizen Litigation Group.

One example of what this means to the average person is found in NHTSA proposals for new SUV rollover rules.         

Attorneys general from 26 states asked the organization in 2005 to drop lawsuit protection from the rules, which could go into effect as early as July 1.

"State governments and the federal government will have to cover millions of dollars in health care costs which they will pass along to taxpayers, costs that, by all rights, should be the responsibility of manufacturers," the attorneys general wrote.

Sen. Patrick Leahy, D-Vt., at hearings last fall, said agencies have issued at least a dozen rules to shield drug and other product manufacturers from liability.   

Indeed, plaintiffs lawyers say "pre-emption by preamble" has been coming in waves during the Bush administration.

             

The Truth About Medical Malpractice Litigation

Here is a very good discussion of the medical malpractice insurance crisis by the Center for Justice & Democracy.

Workers' Compensation Insurance Company Attempts To Defraud The Court

WFAA TV in Dallas reports that a Texas District Court judge has ruled that the state's largest workers' compensation insurance carrier committed fraud against an injured worker. It is interesting to note that this insurance company has lobbied extensively before the Texas Legislature for immunity from bad faith claims arising from the wrongful denial of  benefits to injured workers. I guess now we know why this issue has been so important to them. Here are excerpts from the story:

Texas Mutual Insurance Company has already been accused of callously denying claims against injured workers, but allegations of falsifying records could be a first.

Questions about Texas Mutual's business practices were first raised in a News 8 Investigation four years ago.

Injured workers complained that the insurance carrier was randomly denying their claims and robbing them of much needed medicine and benefits.

District Judge Martin Hoffman issued a ruling declaring "Texas Mutual Insurance Company committed fraud on this court" by "falsifying a critical medical record."

The record was a doctor's report in which someone added letters that tend to support the insurance company's position in the case.

"This fraudulent conduct was committed knowingly by agents and representatives of Texas Mutual Insurance Company," Judge Hoffman said.

The judge ordered Texas Mutual to pay $30,000 and publish the court's ruling on their home page on the Internet.

State Workers Compensation officials said they are already reviewing the facts of the case. Texas Mutual officials have yet to respond.

Anti-Consumer Preemption Case Nears Completion

A case currently before the U.S. Supreme Court has the potential of stripping consumer rights established over long years of legislative and judicial processes. The case involves the doctrine of preemption, and specifically relates to a medical device approved for sale by the U.S. Food & Drug Administration.

Preemption is a doctrine pushed hard by big business, Republican legislators, and conservative judicial activists. The gist is that if a product is approved by a federal agency, and then is found to be defective, consumers are prohibited from suing the manufacturer. An unspoken but necessary component of preemption is the emasculation of federal agencies through the budget process. In other words, starve the agencies so they can no longer subject new products to adequate testing, then when the unsafe products are approved, declare them to be beyond the scope of personal injury lawsuits. It's a beautiful thing if you happen to be a manufacturer. It's raw politics at its ugliest if you happen to be an injured consumer.

The Web site LawyersAndSettlements.com has a good article on the current preemption case, involving a Medtronic balloon catheter.

Link of the Day - Texas Supreme Court Favors Big Business

The Dallas Morning News recently ran a lengthy article on a subject I have mentioned many times -- the Texas Supreme Court has a definite bias toward big business and against Texas consumers and injury victims. Please read the full article. Here are some excerpts:

Texas' Supreme Court justices aren't in the habit of defending their judicial records, much less from lawyers grilling them as they would an uncooperative witness.

But that's just what happened in September at a continuing education event at Horseshoe Bay Resort hosted by the Dallas Bar Association, where lawyers peppered two justices with questions about their impartiality.

Sample query: Do the justices hunt for plaintiff victories in appeal courts just so they can overturn them?

"To be honest, I've never seen anything quite like that in a bar group," Justice Paul Green told Texas Lawyer magazine after the event.

The incident has added fire to a decade-long debate over whether Texas' highest court favors big business in lawsuits.

The perception is bolstered by data showing that the court's rulings increasingly favor defendants in lawsuits – upward of 87 percent of the time, one study said.

In one case, they complain, the court seemed to cherry-pick state laws to find a way to give a property owner the same protections from an injured worker's lawsuit that a contractor has compared with an employer. The worker, hired by a contractor, was injured in a plant owned by Entergy Gulf States.

"I'd say that right now Texas is on the forefront of the business-friendly legal environment," said Rogge Dunn at Clouse Dunn Khoshbin LLP in Dallas, who handles some workers' compensation cases. "If you're an insurer here or a large company getting sued, you've got the Supreme Court as your safety net."

Alex Winslow of Texas Watch is tracking the court's rulings for its 2006-07 term, as he has for the last decade.

By his count, civil defendants won favorable rulings in a relatively equitable 52 percent of cases in the court's 2000-01 term, but the number has been soaring since then. In 2005-06, 82 percent of rulings went in favor of defendants, he said.

"This is an anti-consumer court," he said.

He called the Entergy ruling "egregious" because he thinks the court hunted for a way to rule for the company.

The Entergy ruling ignored the Legislature's previous actions on the issue that were pro-worker. A ruling the previous week involving another energy company cited legislative intent, Mr. Winslow said, "making them unbelievably inconsistent, except for the fact that the energy company won both times."

In a separate study, law professor David Anderson of the University of Texas at Austin found 87 percent of lawsuit defendants received favorable rulings in the 2004-05 term.

What's especially galling to critics of the court is what they see as the court's "activism," a complaint more common from conservative politicians against liberal judges on social issues.

Critics have focused on Justice Hecht, who accepted $16,000 in contributions from Houston home developer Bob Perry's political action committee to help defray costs related to a judicial ethics investigation, as The Dallas Morning News reported in April. The contribution was made as the court was about to hear a case related to Perry Homes.

THREE CASES

These Texas Supreme Court rulings in favor of businesses have been some of the most talked about in the legal community recently.

Entergy Gulf States vs. John Summers
Mr. Summers injured himself at Entergy's Sabine Station plant while he worked for a contractor hired by Entergy. Along with his worker's compensation claim, he tried to sue the utility for negligence. The Supreme Court overturned an appellate ruling in his favor, establishing that Entergy – the "premises owner" – also qualified as a "general contractor" and hence was immune from the injury suits.

Harmar Bottling vs. Coca-Cola
Harmar, a Royal Crown Cola distributor based in Paris, Texas, alleged that Coca-Cola tried to drive it out of business by establishing preferential agreements with grocers in nine Texas counties and three Oklahoma counties. A jury awarded Harmar $16 million in damages and attorney fees, but the Supreme Court ruled that the state's antitrust law doesn't apply in other states and that Harmar hadn't proved damages in Texas.

Lamar Homes vs. Mid-Continent Casualty Insurance
Homeowners sued Lamar Homes for cracks in the walls of houses and for foundation problems. Mid-Continent, Lamar's insurer, declined to cover the suit, and Lamar sued, arguing that the work had been undertaken with the intention of doing it correctly, making any defects "accidental" and covered under the policy. Some consumer advocates praised the ruling as helping homeowners in battles with builders, but others predict insurers' higher rates will simply be passed on to homebuyers.

"Stella Awards" Debunked -- Again

The e-mail about the "Stella Awards" has been circulating for years, and so have articles proving these stupid stories are lies. But the e-mail just won't die. The latest newspaper column debunking the Stella awards was printed yesterday in the Houston Chronicle. Take a look. The article concludes:

Here's the lesson: The next time an Internet tale makes you think things are even worse than you thought, check it out. Especially when the tale suggests that the American system is stacked against wealthy corporations.

One easy way: www.snopes.com, an excellent site that investigates urban myths. It took less than 30 seconds to ask for "Stella Awards" and receive the verdict: "False."

Link of the Day - Two Sides Of Medical Malpractice Caps Debate

On Friday, October 5, 2007, the New York Times published an article on the "rush" of doctors coming to Texas to practice after the medical malpractice liability caps were passed in 2003. Below is Texas Trial Lawyers Association President Jay Harvey's Letter to the Editor delivered to the New York Times the same day.

Dear Editor:

In your article "After Texas Caps Malpractice Awards, Doctors Rush to Practice There" (10/5/2007), the cheering section for stripping legal rights from patients injured by medical errors conveniently omits several telling statistics. According to the 2006 Census, states limiting the compensation for medical errors have 249 physicians per 100k population; states without caps have 283 per 100k. While hailed as a cure for counties without an obstetrician, three years after the cap was enacted Texas had four fewer counties with obstetricians.

Also not mentioned is the importance of fair access to the courts for families devastated by malpractice. Caps are routinely used by defendants to make pursuing claims more expensive than any possible recovery. Thus malpractice can be kept from public scrutiny and bad hospitals and doctors can continue to put patients at risk. Caps may be good new for bad doctors, but they are bad news for all patients.

Jay Harvey, President

Texas Trial Lawyers Association

Link of the Day - Tort Reform Group Protects Bad Doctors?

The Houston Chronicle had a very interesting article this past weekend about the tort "reform" group known as Texans for Lawsuit Reform. It seems the group is so desperate to deny Texas consumers a fair day in court that they don't even bother to do background checks on their own spokes people.

In this instance, a physician the group was using in their unrelenting battle against Texas citizens turned out to be an apparently stunningly bad doctor. Here are excerpts from the story:

Retired orthopedic surgeon Forney Fleming was just what the doctor ordered, or so Texans for Lawsuit Reform thought.

He was eager to bash plaintiffs' lawyers, particularly those who targeted doctors. So TLR, a business group that has spent hundreds of thousands of dollars bashing plaintiffs' lawyers and winning restrictions on judgments against physicians and other defendants, signed him up as a volunteer speaker.

Until a few days ago, TLR also featured Fleming's "supporter profile" on its Web site, where he was quoted:

"I was practicing in a 'judicial hellhole' and saw the effect of lawsuit abuse, which was decreasing the accessibility of medical care in Jefferson County."

Fleming, however, left out some details of his professional life, including his reprimand and $7,500 fine by the Texas Medical Board in 2004 for misdiagnosing what turned out to be bone cancer in a 16-year-old girl's leg. The leg later was amputated.

The board also accused Fleming of providing substandard care to six other patients, including an 81-year-old woman with a fractured hip. That formal complaint was still pending when he let his medical license lapse and retired last December.

And, according to state records, Fleming was sued or threatened with suits for malpractice three times. All were settled out of court or resolved through mediation for undisclosed terms.

None of his professional problems was mentioned on the TLR Web site, but his profile was removed last week, within an hour after I informed a TLR spokeswoman about them.

Fleming, who practiced for more than 30 years in Beaumont and is a former president of the Jefferson County Medical Society, now lives in Garland. He didn't return my phone calls.

His regulatory record is available for public review on the Texas Medical Board's Web page, which TLR hadn't bothered to check.

The group's speakers are all volunteers, spokeswoman Sherry Sylvester said, adding, "We have at this point not done a background check on any of them."

In 2003, TLR's political action committee spent at least $300,000 promoting voter approval of Proposition 12, a constitutional amendment ratifying new limits on noneconomic damages — money awarded for such things as pain, suffering and disfigurement — in medical malpractice cases.

In a formal complaint filed that same year, the Texas Medical Board's staff alleged that Fleming, in treating the 16-year-old girl for a knot in her right leg, had failed to review reports by an emergency room radiologist and her primary care physician, who believed X-rays indicated the possibility of bone cancer.

Fleming had seen the patient four times over a two-month period in 2001 before her family took her to another physician, who ordered an MRI. After several chemotherapy treatments at M.D. Anderson Cancer Center in Houston, the leg was amputated at the knee.

Fleming agreed to a negotiated disciplinary order, entered in April 2004, joining only a small fraction of Texas doctors who have ever been disciplined by the state.

In addition to the public reprimand and fine, he agreed to have his medical practice monitored for three years and accepted certain other requirements, including additional professional education.

The regulatory board's staff filed another complaint against Fleming in August 2006, alleging substandard care for six additional patients, including the 81-year-old woman and patients treated for fractured ankles, a fractured wrist and a crushed leg.