JOEL BIEBER'S BLOG

Wyeth Hormone Therapy Verdicts

     We have been informing clients and other possible clients that it appears that July 9 may be the cutoff to file any possible lawsuit against Wyeth Pharmaceuticals, as a result of  alleged injury from taking their hormone therapy products. I regularly get asked, "How is that hormone therapy litigation going?"  There is no short answer because we are still trying to get Wyeth to accept responsibility. There are other defendants as well. However, for the purposes of this blog, I thought I'd summarize the jury verdicts to date.

     If you read the press releases of the drug manufacturers, it almost sounds as though they are winning every case. In fact, there have been some verdicts taken away by trial judges, but those are on appeal and we are hopeful that the appellate courts will reinstate them.

     So far, ten juries have heard  hormone therapy cases against Wyeth, and seven of them have returned verdicts for the plaintiffs. Jennie and Lawrence Nelson had two different trials in the Superior Court of Pa. The first verdict was for 1.5 million. It was set aside and the second verdict was 3 million.(2.4 for Jennie and 600k for her husband)The Nelson verdict is now on appeal.

     Aside from the two Nelson juries, other verdicts for the plaintiffs are as follows: Daniel v. Wyeth (1.5 million compensatory and a verdict of punitive that was sealed. This 2004 verdict is now on appeal); Rowatt,Forrester, and Scofield v. Wyeth, et al (Second Judicial Dist Ct of the State of Nevada) (Rowatt- $7,557,027.00 compensatory damages and 31 million punitive, reduced by the Judge to 10 million),(Forrester- $7,561,481.00 compensatory and 35 million punitive, reduced to 13 million), (Scofield- $7,510,401.00 compensatory and 33 million punitive, reduced to 12 million); and Scroggin v Wyeth, et al., ED Ark Western Division ($2.75 million compensatory and 19.63 punitive and $7.76 million against defendant UpJohn).

     As always, a recitation of past verdicts is no guarantee of future results. This is just to serve as an update for those cases that have been tried in front of a jury. Most of the cases are either filed in Pennsylvania state court or in Federal Court and consolidated in the Multi-District Litigation in Arkansas. However, some are filed separately in other states as evidenced by the Nevada verdicts.

 

Visit Our Website: JOELBIEBER.COM

Shockwaves News of Senator Kennedy

     When I heard that Senator Ted Kennedy had a seizure, I kept checking the news to see if there was any word of the cause. All weekend, there was only silence about the medical condition. The Senator's wife gave the cryptic but disconcerting signal that it was serious but not life threatening. Then, today, it was announced that the diagnosis was a malignant glioma tumor in the left parietal lobe.

     As I heard the news, my mind took me back to a little over a year ago, when my wife and I were guests with several other lawyers, in the Kennedy home. The Senator came home from a day in the Senate and was the consummate host. He kept encouraging us to stay longer, after dinner was long cleared from the table. He seemed robust and even sang with his piano player, creating the atmosphere of an old time night of entertainment. My wife and I both remarked how energetic he seemed. Looking around the house allowed us to see pictures of he and his family and made you feel like you were seeing history. We left there saying what a treasured memory that night would always be.

     No matter what you think of his politics, there still is good reason to respect the longevity of service in the Senate,(since 1962) and the passion which he pursued what he felt most strongly about. Of course, I pulled up some blogs, and attached comments, and saw that the idiot posters were already out and taking the news with glee. However, our senior Virginia Senator, John Warner,  was quoted as saying, "I am so deeply saddened, I have lost words".

     I hesitated to include in this blog that I had the opportunity to be in his Georgetown home. I sometimes kiddingly say that Elvis told me you never should be a name dropper. However, that night, the Senator talked of his excitement in serving for many more years in the Senate and goals that he wanted to accomplish. It's a reminder of the uncertainties of tomorrow and that life is a vapor that appeareth for a little time and then vanishes away. Hopefully Senator Kennedy will be successful in his treatments and have many more years in the Senate. My prayers are with him at this time.   

Visit Our Website: JOELBIEBER.COM

What Do We Represent?

     I regularly get asked the question,"Is there someone that I would not represent?" Of course, I always want to represent the person that I can be proud to represent, when I stand in front of a jury. I sometimes have to decline representation because an individual is mean to the staff, or has been untruthful to me or, in my opinion, does not have a case. I have to believe in the case or else, the jury will know by my actions that I am not proud to represent my client. I guess that our actions reflect what we represent, for all of us.

     I recently saw a list of the all time dirtiest players in sports. One listed was an old football player by the name of Bill Romanowski. Over his 16 year career, his actions spoke for him. He broke a quarterback's jaw.(Kerry Collins). He spit in JJ Stokes' face. He kicked Larry Centers in the head. He threw a punch at an all pro tight end.(Tony Gonzalez) He hit Bryan Cox with a football in a spot where no man wants to get hit. Finally, during a practice, he even punched a teammate and broke his eye socket and caused long term head injury problems. It was always said that Romanowski represented dirty football.

     I was recently talking to a restaurant manager about how business had been. Overall he was happy with recent sales. I asked him if Sunday business was heavier than other days. He said that it had been steady but that he had a problem getting people to work on Sundays. He went on to add that typically, his experience was that people coming from church were usually terrible tippers and were the most demanding customers of the week. Alot of steaks are ordered on that day and then sent back. I don't know if every restaurant has the same Sunday experience, but it sure is disappointing to hear that people don't even want to serve those coming from church. Like the person driving like a maniac with a fish bumper sticker, maybe the restaurant manager story is a good reminder that our actions speak for who we represent.

      

Visit Our Website: JOELBIEBER.COM

Three Interesting Cases

     Sometimes fact is greater than fiction. That's why, when I read some case holdings from various states, they read like a novel. I guess that was the premise of Court TV. Anyway, I'll let you judge for yourself whether these are attention grabbers:

     In Jones v.Commissioner of Internal Revenue, a tax deduction was disallowed. Attorney Jones represented the "Oklahoma City Bomber". After he withdrew from representation, he donated over 100,000 federal documents that were received from the government, during the course of representation. An appraiser valued the documents for the purpose of charitable donation at $294,900. The IRS disallowed the charitable deduction to Jones, reasoning that a client's file belongs to him, not the lawyer and that the Jones' tax return could not reap the benefit of donation from something Jones did not own. As we know, McVeigh did not need the write off but the US Tax Court, in upholding the IRS ruling, determined that even if Jones had owned the file, he still would not receive a tax credit because the federal papers do not qualify as long-term capital assets. None challenged that idea.

     In Scheehle V. JJ of S.Ct of Arizona, Attorney Scheehle challenged a Court rule that mandated that lawyers serve as arbitrators for at least 2 days per year at a pay rate of $75 per day. Scheehle challenged the requirement under the 5th amendment as a taking. The Court ruled that it was not a taking per se and that this two day requirement  a condition to practice law in the state of Arizona. The Court reasoned that practicing law is a privilege conferred by the admission to the bar that is not outweighed by the burden of serving 2/365. I guess they said if you don't like it, do something else.

     In Hoyle v.First Baptist Church of Winter Haven, the church asked for volunteers to help tear down part of an old building that had been donated to the church. The church bulletin said that the material must come down "for the sake of safety". Hoyle began cutting the ceiling into small pieces. Nearby, other volunteers were prying pieces from the ceiling. A large section of the ceiling then fell on Hoyle causing a compound comminuted fracture to his right let. It got infected and he eventually had to have it amputated right below the knee. Hoyle sued the church alleging that it knew the ceiling was unsafe, based upon the bulletin. He alleged that this put the church on notice that they should have provided safety equipment and a supervisor for the volunteers. The church  contended that plaintiff knew as much as church did and that they also had warned of dangerous condition, which plaintiff ignored. Before going to trial, the parties settled for 500k. That's one of those cases that I can see both sides and based upon the amount, it appears to be a true compromise for the loss of a leg.   

Visit Our Website: JOELBIEBER.COM

What, That Doesn't Seem Right

     The title of this blog is what I expect people to say if the Bush Administration has its way with eliminating the liability of drug companies. Specifically, Capitol Hill is debating the Administration's efforts  to eliminate the ability to sue a drug company for injuries caused by that drug, whenever the Food and Drug Administration has approved that drug. The reason for this elimination of liability is because the President says that it would limit costly litigation and encourage innovation.

     When I hear the basis to waive accountability for injuries caused by drug companies, I don't even understand the logic. My friends tell me the logic is simple, to be beholden to big business. It seems to me that a drug company would have some motivation to produce medications to help people. Or, the motivation to be recognized as the leader in a certain field. For instance, Wyeth wants to be recognized as the leader in medications and medicine for women. Despite these feel good reasons, you would also think that a medication generating profits in excess of a billion dollars would also serve to motivate "innovation".

    As it stands, I don't know how a legislator can seriously consider an FDA approval as a basis to say that such would absolve a drug company from their accountability for causing injury. In that circumstance, a Vioxx caused injury would not be a basis for a claim, despite the fact that it is approved for benefit in fighting pain and yet, studies show that it significantly demonstrated a higher risk for strokes and heart attacks. In that circumstance, Merck would withdraw the medication, count their money from the sales and be thankful that the FDA had previously approved the drug.

     In a perfect world, it would be great to be able to rely on the FDA as the sole determining factor for the safety and approval of a new drug. However, this ignores that the FDA is admittedly underfunded and understaffed to review the documentation that is being submitted by drug companies and it should be no surprise that the FDA is overmatched by drug companies, who can withhold or manipulate the studies that they submit in support of their approval applications.

     Yesterday, Dennis Quaid testified before Congress and stated that, "Like many Americans, I have always believed that a big problem in this country was frivolous lawsuits. But now, I know that the courts are often the only path for families that are harmed by the drug companies' negligence." Previously, I blogged on Trent Lott's change of heart about lawsuits after he was personally effected by the conduct of State Farm. Dennis Quaid has now been personally effected by a medication mixup. How sad it would be for the Administration to get this legislation passed  and to be able to reward bad conduct with the knowledge that there would be no accountability. This is the same President that told us during elections that he would "jawbone" the oil companies to keep the price of oil down. I think the elimination of liability for drug companies, under the approval of the FDA, would  cause us all to look back with the same reaction.   

Visit Our Website: JOELBIEBER.COM

The Legal Fee Tort Reform

     Big Business has created a cottage industry of raising money to take away victim's rights. Fortunately, many of these efforts have been beaten back. However, there is another method that is being employed. Certain legislators, Chamber of Commerce lobbyists, and Big Business interests have decided to go after lawyer fees. Not the fees that are charged to the businesses, as you would think that they would be concerned about. No, they are attacking the contingency fee in an attempt to limit the amount that a lawyer can charge in an injury case. Why do you think that they are not worried about the hourly rates they pay as a business?

     In Colorado, the movement was an attempt to reduce contingency fees as far down as 10% on certain recoveries.. Rather than trying to fight that back as a single piece of bad legislation, lawyers decided that the best way to attack it was to take the approach of "what's good for one is good for all". That meant that they added amendments to the legislation that would have included a limit on real estate commissions, a limit on CEO pay and an increase on penalties for defective construction damages. All of sudden, these other industries including Big Business decided that maybe this limitation was not such a good idea.

     For your consideration, I attach an editorial that was written in the Rocky Mountain News by Vincent Carroll. He takes lawyers and the idea of limitation to task.(Carroll article).  Since he is neither lawyer nor Big Business, he does not have a dog in the fight. He does suggest the obvious that this can limit access to recovery but he also addresses the image problem that it creates for lawyers in trying to defend what they earn.

     I say that he does not have a dog in the fight but he may find that it would effect him in finding representation, if such limitation had gone through. In certain states like Florida, there was a limitation enacted on legal fees on medical negligence cases. It was later struck down as unconstitutional but it did cause a period of time where victims had a hard time finding some representation. If the recovery was limited, then it served as a concern in taking the case because in many cases, the upfront costs that had to be borne by the lawyer outweighed the benefit of recovery. This same disincentive is occurring in Texas where certain caps have caused lawyers to stop handling medical negligence cases. Those that pushed the caps through, knew what they were doing because one way to limit responsibility is limit the access of the poor, to representation. As I have said in past blogs, the battle continues to wage and wrongdoers will continue to invent ways to circumvent their responsibilities.   

Justice Steven Agee's Confirmation

     This week I have been slack on my blogs because of casework commitments. However, a news story caught my attention regarding the Senate confirmation hearings for Justice Steven Agee. He currently sits on the Virginia Supreme Court and has been nominated to become a federal appeals Judge. Such an appointment requires US Senate confirmation.

     As expected, part of the confirmation hearings include examination of a candidate's club memberships. In this instance, Senator Benjamin L.Cardin (D-MD) questioned Justice Agee regarding his membership at The Shenandoah Club. Justice Agee was asked whether he knew that his club discriminated against African Americans when he joined in 1980. His response,"I can't recall if I had specific knowledge of that. Certainly, as time went on it seemed more likely than not that that occurred. After some period of time I resigned." This response was reported by the Media General News Service.

     When I read that response, it made me want to know the dates of the Justice's membership. Amazingly, he was a member from 1980 until 1987. The club was founded in 1893. Shortly after his resignation, the club changed its membership policies in 1988. His response would lead you to believe that all of a sudden, the membership discrimination just dawned on him. Maybe he never looked around the golf course or the dining room!

     It will be interesting to see if this has any bearing on this confirmation. For Virginia, it obviously had no impact. This questioning came during a 40 minute hearing for Agee. The Richmond based 4th Circuit Court of Appeals has jurisdiction covering South Carolina,North Carolina,Virginia and Maryland. It has the highest percentage of African-American population of any appeals court in the country.