California Personal Injury Law Case Notes

Brain Fiber Tracking in HD

Kristine Meredith — Mon, 12 Mar 2012 09:58:56 -0800

Brain imaging technology advances at a rapid pace. A new process, called "high definitiion fiber tracking," reveals areas of brain injury with more exactness than standard scans such as CT & MRI and even the newer DTI method.

Millions of Americans suffer a traumatic brain injury, or TBI, each year. Most TBIs are concussions or other milder injuries that generally heal on their own; some are more severe and may lead to death or disability. Because TBIs also affect more than 200,000 soldiers who served in Iraq and Afghanistan, the U.S. defense department supports TBI research studies including that of Dr. Walter Schneider, professor of psychology and neurosurgery at the University of Pittsburgh Medical Center. Schneider's study explains the importance of the new technology and how it works.

Why is HDFT Important for Victims of TBI?

With more serious head injuries, standard scans cannot see beyond bleeding or swelling to tell if the brain's connections are broken in a way it can't repair on its own. But the researchers say the new technology gives them the ability to see previously invisible wounds.

How does HDFT work?

Brain cells communicate with each other through a system of nerve fibers that act like a telephone network, making up what's called the white matter of the brain. White matter runs along cable-like highways called fiber tracts that contain millions of connections. The new scan processes high-powered MRIs through a special computer program to map major fiber tracts, painting them in greens, yellows and purples that designate their functions. Researchers look for breaks in the fibers that could slow or stop those nerve connections from doing their job.

Real Life Example

32-year-old Daniel Stunkard of New Castle, Pa., is one of 50 TBI patients in Schneider's study. He spent three weeks in a coma after his all-terrain vehicle crashed in late 2010. CT and regular MRI scans showed only some bruising and swelling, unable to predict if he'd wake up and in what shape. DTI was unsuccessful for fiber tracking because it had poor-quality visualizations and some false tracks.

When Stunkard woke up, he couldn't move his left leg, arm or hand. Doctors started rehabilitation in hopes of stimulating healing, and the HDFT predicted what happened. The scan found partial breaks in nerve fibers that control the leg and arm, and extensive damage to those controlling the hand. In six months, Stunkard was walking. He now has some arm motion. But he still can't use his hand, his fingers curled tightly into a ball. The doctors say those nerve fibers were too far gone for repair.

This closer look at nerve fibers will provide a valuable diagnostic tool. Dr. Rocco Armonda, a neurosurgeon at Walter Reed National Military Medical Center says: "It's like comparing your fuzzy screen black-and-white TV with a high-definition TV."

PG&E: Judge Picks Cases To Be Tried

Mike Danko — Fri, 02 Mar 2012 17:25:18 -0800

At today’s court hearing, Judge Dylina tentatively selected the cases to be included in the trial that is scheduled to begin against PG&E on July 23:

Bullis v. PG&E
Estate of Franco v. PG&E
Ruigomez v. PG&E
Low v. PG&E
Zapata v. PG&E
Healy v. PG&E
Chea v. PG&E
Viscarra v. PG&E

The judge will finalize the selections next week.

Beginning next week, the judge will hold a conference with the attorneys every Thursday afternoon. The purpose to the conference is to ensure that each side turns evidence over to the other as appropriate and that trial preparations proceed smoothly.

The judge also ordered that the victims involved in the cases that have been selected for trial will each be required to participate in a mandatory settlement conference with PG&E before trial begins. Other victims may participate in settlement conferences if they would like, but the judge will not require them to do so before the July trial.

Can a Coach be Held Responsible for an Injury to his Athlete?

Kristine Meredith — Tue, 07 Feb 2012 13:44:35 -0800

Generally, no. Sports have inherent risks. An instructor or coach generally is not responsible for injuries to players if the risk of the injury is inherent to the sport. Holding a coach responsible for such injuries may have a chilling effect on the sport or activity. The coach must be allowed to urge the athlete to strive to excel or to reach a new level of performance. But a coach has a duty not to increase the risk of injury by encouraging or allowing the athlete to participate in the sport when the athlete is physically unfit to participate or by allowing the athlete to use unsafe equipment or instruments.

For example, an equestrian trainer was held responsible when he forced a student rider to train on a lame horse and the rider was injured during a fall. Similarly, a baseball coach would be responsible to an injured player if he knowingly supplied faulty equipment such as a batting helmet or catching gear. In those cases, although the injury may be “accidental”, a coach or trainer may be held responsible because his conduct increases the risk to his athletes.

CPUC President Appoints Himself to Lead Investigation Against PG&E

Mike Danko — Thu, 26 Jan 2012 10:07:04 -0800

In the five years leading up to the fire, the CPUC found that PG&E committed more than 400 safety violations. Each time, instead of fining PG&E, it let it off with a warning.

It was the CPUC’s job to keep the public safe from PG&E. The CPUC failed to do that job. The CPUC has never adequately explained why it let PG&E slide for so many years.

Michael Peevey has been at the helm of the CPUC since 2002. Instead of stepping down, he has now appointed himself to lead the investigation against PG&E.

Is it any wonder that the public has no trust in the regulators?

Takeda Ignored Bladder Cancer Warning Signs

Kristine Meredith — Wed, 18 Jan 2012 08:54:12 -0800

More than 10 years ago during animal trials of the diabetes drug Actos, its manufacturer (Takeda International) learned that rats exposed to Actos developed more bladder tumors than rats exposed to a placebo. Takeda did not research the cause of increased rate of tumor formation, nor did it conduct further studies with human volunteers. Instead, Takeda minimized the risks, pushed through production and sought FDA approval. Takeda claimed “the evidence did not point to a risk in humans.”

Despite the results of the rat study and though Takeda never tested on human volunteers, the FDA approved Actos for sale in the U.S.

As a condition of its approval, the FDA required Takeda to conduct a 10-year observational safety study. In effect, the FDA gave its endorsement to use the entire global population of Actos users as “human lab rats”. When interim data was available in 2010 , it revealed that patients taking Actos for the longest period had an increased risk of developing bladder cancer -- a result consistent with the rat study.

Again, Takeda decided not to warn users. But this time, the FDA disagreed and advised the public that taking Actos for more than a year may indeed carry an increased risk of bladder cancer. The European regulators went even further, banning Actos altogether from the European market.

Takeda’s failure to properly investigate Actos' side effects and the FDA’s lackadaisical approach raises questions: What purpose do investigative studies serve? Why conduct animal studies if the correlation to humans is ultimately ignored? Can a drug manufacture use patients as “lab rats” and get away with it? If Actos had been properly tested before it hit the global market, how many victims might have been spared bladder cancer?

Actos victims are hopeful that their attorneys will find answers through the newly created multi-district litigation, In Re: Actos (Pioglitazone) Products Liability Litigation.

Who is Takeda International?

Kristine Meredith — Wed, 11 Jan 2012 21:44:37 -0800

Takeda International is a global pharmaceutical company headquartered in Japan. It’s top selling product, Actos, improves the body's insulin use; while it also reduces blood sugar levels. In 1998 Takeda entered into a marketing partnership with Eli Lilly and Co. to push Actos in the United States and obtain FDA approval. Remarkably, one year later Actos was approved for release in the U.S. market and Takeda set up shop in Deerfield, Illinois, its U.S. corporate headquarters. Actos has been a huge success for Takeda, as Both Takeda and Eli Lilly marketed the drug in Japan, the United States, France and Germany. In 2010, Takeda’s global sales revenue from Actos was an estimated $4.8 billion with an estimated 2.3 million prescriptions filled in the United States. Recently Takeda has been on the defensive. In 2011 researchers determined that users of Actos are at an increased risk of bladder cancer. And , the top-selling drug is now the center of hundreds of lawsuits with Takeda as their target.

Vicarious Liability: Holding One Person Responsible for the Wrongdoing of Another

Kristine Meredith — Mon, 09 Jan 2012 09:23:36 -0800

Can one person be held responsible for the wrongdoing of another? Usually no, but it depends. Some situations justify holding a person responsible for the act of another. For example, an employer will be held responsible for the wrongdoing of an employee that occurs while in the course and scope of employment. And, a landowner can sometimes be held responsible for the acts of a third person which injure someone coming on his property.

Holding one person responsible for the wrongdoing of another is referred to as vicarious liability.

Vicarious liability can sometimes be imposed on:

parents for injuries caused by the intentional acts of their child;
a car owner for injuries caused by one driving a car with the owner's permission;
an insurance company for negligence of an insured driver;
a person who entrusts a dangerous instrumentality to an improper person who causes harm.

But vicarious liability will generally not be imposed on:

parents for acts of their child that are merely negligent, except by statute in special situationst;
one spouse for the wrongdoings of the other;
a landlord for the wrongdoings of a tenant.

PG&E's Admission of Liability No More Than a Litigation Ploy

Mike Danko — Wed, 14 Dec 2011 12:35:47 -0800

PG&E made a show of finally “admitting liability” for the explosion. What brought that about? A sudden pang of conscience?

Not quite.

PG&E's latest move is classic litigation strategy. It's designed to help PG&E escape full responsibility for what it did rather than own up to its responsibility. The move paves the way for PG&E to ask the judge to keep out of trial any evidence concerning what caused the explosion. Expect PG&E to argue that, since it admits liability, there’s no reason to allow the victims' lawyers to uncover what really happened. Or to explain it to the jury. Instead, PG&E will argue that all that evidence should be swept under the rug.

This strategy isn’t really new. It’s common when a defendant’s conduct is really, really bad. For example, a driver who was momentarily inattentive and injures someone in a crosswalk might dispute responsibility for an accident all the way through trial. But if that same driver was drunk, he will quickly admit liability. Then the driver will argue to the judge that that since he admits liability, the fact that he was drunk is irrelevant and should not be told to the jury.

The trick is an old one. Do everything possible to keep the public from finding out what really happened.

We'll see how this plays out.

ATV Safety: Size Matters

Kristine Meredith — Wed, 23 Nov 2011 14:28:15 -0800

The popularity of ATVs has grown tremendously over the years, reaching 9.5 million vehicles in 2007. Accordingly, the rate of traumatic brain and spinal injuries resulting from ATV accidents has also risen, especially in children. Between 1982 and 2007, nearly 9000 riders died in ATV accidents and approximately 40% of them were children under age 16. Currently, ATV federal standards are lax, requiring manufacturers to limit speed capabilities for all youth-sized models. Recently, researchers recommended ATVs designed for children should have both size and weight limitations for riders. Confirming what may appear obvious, a recent study conducted by ER physicians and mechanical engineers, concluded that children, due to their size and weight, are at considerable risk of injury when operating an ATV. The researchers state: “mechanical differences and proportional safety risks that are present on adult-sized ATVs used by youth. Current child-sized ATV stratifications determined using regulated engine speed may not be enough to mitigate risks associated with the size and weight of these vehicles.”

According to auto safety experts at Safety Research & Standards Institute, the importation and sales of three-wheeled ATVs was banned in 2009 and the U.S. Consumer Product Safety Commission has required manufacturers to file and implement voluntary action plans. These plans include commitments to provide safety information and guidelines regarding the appropriate age for child and adult-sized machines. The manufacturers also consented to instruct dealers not to market adult machines to child riders and to monitor dealers under-cover to ensure that dealers are complying.

California’s ATV laws are also lax. The laws require riders to wear helmets and minors to be supervised by their parent/guardian or an authorized adult. The laws also restricts children from riding on public land unless the child rider is taking a safety training course; or riding while supervised by an adult who has a safety certificate. No California laws currently restrict the speed or size of the ATV a child may ride. Given the findings of the most current research, manufacturers should increase efforts to educate riders about the safety risks present when children ride adult-sized ATVs.

Howell v. Hamilton Meats: Questions & Answers

Mike Danko — Tue, 01 Nov 2011 12:10:25 -0800

The California Supreme Court dealt the injured a serious blow in August when it handed down Howell v. Hamilton Meats and Provisions, Inc. It is certainly one of the most pro-insurance company cases ever.

Gary Simms and I collaborated on a couple of articles explaining how Howell will change the legal landscape in the years to come. Gary Simms brings a unique perspective to the discussion. Not only did he argue the case before the Supreme Court, but he spent nine years of his career as a senior judicial attorney writing the Court's opinions.

Our latest article is Supreme Court Put Plaintiffs Through the Hamilton Meat Grinder.

Here are our views on some key issues. See the article for how we get there:

Does Howell apply only when there is a contract between the plaintiff's medical providers and her insurer?

A: It seems so but the court's opinion is unclear. Plaintiff has asked the court to clarify.

How does the defendant prove that there is a contract between the insurer and the provider?

A: Unclear but plaintiff should be able to argue that oral evidence doesn't suffice.

Who has the burden of proving what was paid or owing and what is reasonable?

A: Plaintiff will bear the initial burden of submitting evidence of the amounts paid or owing. Evidence of reasonable value will not be sufficient.

Are billed charges relevant to noneconomic damages?

A: Generally not.

Are billed charges relevant to future medical expenses?

A: Defendants will certainly argue that they are not. But that argument will be difficult to carry.

Is evidence of the amount paid by the insurer admissible?

A: Yes.

How is the amount paid or owing to be determined?

A: Unclear.

Do HMO patients recover no medical expenses?

A: The opinion isn't clear.

Do malpractice victims recover nothing?

A: The opinion isn't clear.

Is evidence of medical insurance now admissible?

A: As a practical matter, yes.

Can Howell be dealt with by post-trial motion?

A: Unlikely that a defendant would so agree.

Howell v. Hamilton Meats & Provisions, Inc.

Tips to Help Serious Burn Injury Victims

Kristine Meredith — Sat, 08 Oct 2011 16:09:04 -0800

When a friend or family member suffers a catastrophic medical event, he is often at a loss for the best way to show concern and to offer support. An article in The Pheonix Society focuses on the needs and issues of burn victims. Here are some specifics dos and don’ts for hospital visits and the post-hospital recovery period:

Don’t send or bring flowers. Although a well-intentioned first instinct ,if someone is hospitalized or recuperating at home, flowers present a potential risk. The bacteria carried by real flowers may threatened the patients weakened immune system.
Do send a humorous book or a blank journal.
Don’t stare or avoid eye contact. Burn patients usually have a greatly heightened awareness of their appearance.
Do try to look at them squarely and naturally. Be aware of your body language and the messages your non-verbal cues may be sending.
Don’t lie. The patient knows they have physical changes and a serious condition. It is unlikely you “know how they feel”. So don’t say it.
Do listen and acknowledge their feelings. An appropriate response: “I can see that this is a really difficult time. I’ll be here for you.
Don’t make vague offers to help.Do help. Be proactive with suggestions such as “I will set up child care for the week or walk your dog every morning”. Assume the offer will be accepted and ask for specific instructions.
Don’t pressure the victim to make a decision about filing a lawsuit.
Do research names of attorneys who specialize in the issues that gave rise to the victim’s injuries. Experienced attorneys can consult with the family and help preserve important evidence or gather witness statements.

A strong support system of family and friends is invaluable to a burn patient. Most burn patients say the things people DO are more important than the things people SAY.

Drug Companies' Ads for Doctors are not FDA Compliant

Kristine Meredith — Fri, 07 Oct 2011 18:30:50 -0800

Four out of five ads in medical journals targeting doctors fail to follow FDA guidelines. Over half fail to quantify the risks. Dr. Deborah Korenstein, lead author of a recent study and Associate Professor of Medicine at Mount Sinai School of Medicine states:

Marketing research has consistently shown that journal advertising is the most profitable form of drug marketing, with an estimated return on investment of five dollars for every dollar spent. . . the current system is not in the best interest of the health of the public.

Drug companies know that the FDA does not have the resources to enforce its advertising "guidelines." In fact, the FDA has asked doctors for help, launching a "Bad Ads" campaign that urges doctors to take it upon themselves to report the drug companies' bad ads to the FDA. As if, doctors have more time and resources than the FDA? And absent independent research, how will the doctors know the ad is bad?

Without enforcement, the drug companies will continue to violate the rules; doctors will not have the relevant information needed for safe prescribing practices and the public will be suffer avoidable harms. Doctors, as well as the public, need to be reminded not to be swayed by flashy ads and to conduct independent investigation about a drugs safety and efficacy.

San Bruno Judge Orders 16 "Representative" Fire Cases to Trial in 2012.

Kristine Meredith — Thu, 22 Sep 2011 14:16:26 -0800

On July 2, 2012, trial will begin in 16 San Bruno Explosion cases. The Court ordered that the cases to be tried first will be representative of the following eight categories of lawsuits that have been filed:

Wrongful death
Serious bodily injury which required hospitalization.
Minor bodily injury which required some medical treatment and total property loss.
Minor bodily injury which required some medical treatment and lesser or no property loss.
Bodily injury, present at the time of the explosion and total property loss.
Bodily injury, present at the time of the explosion and lesser or no property loss.
Homeowner not present at the time of the explosion and total property loss.
Homeowner not present at the time of the explosion and lesser or no property loss.

"Bodily injury" includes emotional distress cases. Victims select eight cases and PG&E selects the other eight. Often a case includes members of the same household who have suffered varying degrees of injuries. If so, then the case will be defined by the most severe category of claim.

PG&E continues its double speak. Repeatedly, PG&E attorneys told the Court that it doesn’t blame the explosion victims for their injuries. But when pressed, PG&E would not withdraw its legal arguments that the victims may bear some responsibility for their injuries. The touchy-feely public relations voice cannot be trusted until PG&E changes its legal position. Because of the double speak, the selection of representative cases will be tricky. PG&E may have evidence of turpentine in the garage or failure to timely evacuate – right now victims can only speculate how PG&E intends to cast blame at trial.

The Future of Pain Assessment

Kristine Meredith — Wed, 21 Sep 2011 10:33:39 -0800

Objectively measuring physical pain has been impossible. Doctors have relied on a patient’s self-report. And when asked to compensate accident victims for pain and suffering, so have juries.

But all that may soon change. Recently Stanford University researchers have used brain images and computer technology to assess pain. In this study, a computer was “trained” to read brain images and assess pain levels. The researchers began by taking brain images of participants who were presented with painful and non-painful stimuli. The patterns of brain activity provided an objective physiologic assessment of whether someone is experiencing pain. The computer was 81% accurate at distinguishing painful v. non-painful stimuli.

Clinically, this tool will be most helpful to detect pain in infants, seniors with dementia, and sedated patients. But practically, it may lead to advances in pain management while establishing the credibility of victims who report they are living with ongoing pain.

Judge Finds Ford Concealed Evidence of Unintended Acceleration

Kristine Meredith — Thu, 15 Sep 2011 10:17:41 -0800

Last month Judge Swigert, of Florida, overturned a jury verdict in Ford’s favor. The judge decided that that Ford had systematically concealed more than 30 years of data related to the problem of electromagnetic interference (EMI) and unintended acceleration (UA). The Judge’s 51-page decision lists Ford’s bad acts which include:

lying to NHTSA,
destroying evidence that EMI caused UA, and
misleading its own experts.

Because of its fraud, Ford will have to face a new trial in which the jury decides only the amount of compensatory and punitive damages Ford should pay Mrs. Simpson, a Ford owner who was left permanently paralyzed by the UA of her Aerostar. The Safety Record Blog recounts how Judge Swigert detailed Ford’s concealment here.

Judge Swigert's decision undermines the foundation of Ford’s UA defense and spotlights NHTSA's inability to properly investigate consumer complaints. While the decision focuses on Ford’s malfeasance, the criticisms set forth in the opinion also undercut many theories that other car manufacturers, including Toyota, rely upon today.

Howell v. Hamilton Meats: Candid Interview With Appellate Attorney Gary Simms

Mike Danko — Tue, 23 Aug 2011 15:32:11 -0800

Last Thursday, the California Supreme Court handed down its decision in Howell v. Hamilton Meats. The ruling favors those who cause injury to others (such as people who get into accidents while texting) over their victims. The Court decided that it is those who cause injuries, and not their victims, who will benefit from the health insurance that the victim has paid for.

I attended the oral argument before the Supreme Court back in May. I wrote about that here. Today, Gary Simms, who argued the case for Rebecca Howell, provided me his perspective on the Court's decision.

Q: Were you surprised by the 6-to-1 decision against the plaintiff?

A: Unfortunately, I wasn’t surprised by the result. The Court is deeply conservative (six Republican appointees) and predictably anti-plaintiff in most personal-injury cases, so I knew from the outset of being retained for the Supreme Court briefing that I would face a very uphill battle. I was working at the margins; in other words; three justices would never vote for my position, and I knew it. I expected to get Justice Pro Tem Klein’s vote, though, and she very clearly signaled it at oral argument. I hoped to get three other votes, but I knew it would be difficult.

Q: Were you surprised by the new Chief Justice’s vote with the majority after she had taken the opposite view in her Court of Appeal opinion in King v. Willmett very shortly before she was appointed to the Supreme Court?

A: Yes, but after the oral argument, I sensed that she would flip-flop, so I was only mildly surprised. I can only speculate why she reversed her position. But I think the most likely reason was that she knew her vote would not change the outcome, so she chose to join the majority to make it unanimous. (Because Justice Klein was sitting pro tem by designation, her dissent does not matter in that regard; all the permanent Justices joined in the majority opinion.) This allowed the Chief Justice to establish herself as being a collegial and open minded consensus-builder. That’s a very important quality for a Chief Justice. And perhaps

she simply doesn’t care deeply about the issue. As one Justice who I knew was fond of saying, “I’m not going to break my pick on this one,” meaning that, if he did not much care about an issue, he would not waste his time writing a dissent. Or as another Justice put it, “Sometimes, you just have to hold your nose and sign an opinion.”

Q: Isn’t that a cynical or lackadaisical approach?

A: Not really. Actually, I think it is a very good approach. It would defy human nature for every Justice to care passionately about every issue in every case. But some justices are so enamored of their own perceived brilliance that they think they must write a separate opinion for every thought that occurs to them. That doesn’t serve anyone except the justice’s ego. Consensus should be the goal whenever possible. A judge should write separately only when it really matters to the outcome or is a matter of deeply held principle. So, I am disappointed in the Chief Justice’s change of position, but I commend her for joining the majority in this circumstance.

Q: The case was generally viewed as being the most important personal-injury case in the California Supreme Court since Li v. Yellow Cab Co. in 1975, and the reported economic effect was reported to be $3 billion per year. But the majority opinion was fairly short (28 pages).

A: I am a strong proponent of shorter opinions. The Court typically writes opinions that are much too long. (The reason for that is a topic for a separate discussion.) Nonetheless, the Court’s opinion was surprisingly short for so major a decision. I think the reason was that a detailed discussion would have revealed the major weaknesses in the Court’s opinion, and the Court left open for future cases many issues that would have required extensive discussion. Put bluntly, the Court “kicked the can down the road” on many issues.

Q: Give us an example of a weakness in the Court's opinion.

A: Well, as the Court grudgingly acknowledged, it has adopted a small-minority view. The overwhelming majority of states to address the issue has taken the opposite approach, allowing plaintiffs to recover the amounts billed by their medical providers. But rather than analyze that body of law, the Court simply brushed it aside in a footnote.

Q: What about issues the Court declined to address?

A: That is quite troubling because it leaves every personal-injury case in turmoil and will create years of needless litigation in the trial courts and courts of appeal and eventually the Supreme Court. But it is not surprising at all. The Court, like most appellate courts, especially supreme courts, sees itself as a “big picture” court. It does not like to deal with what it views as mundane procedural and evidentiary issues, even if hundreds of millions of dollars are at stake.

Q: What are some examples issues the Court left undecided?

A: The Court held that evidence of the amount of a medical provider’s charges is not relevant on the issue of past medical expenses. But the Court declined to address whether the billed charges are relevant to other issues such as future medical expenses or noneconomic damages. So, of course, defendants will now argue in every case that billed charges are not admissible for any reason. The trial courts and courts of appeal will have to grapple with those issues.

Another glaring omission from the Court's opinion is any guidance on how to deal with patients who are treated by Health Maintenance Organizations (HMOs) such as Kaiser Permanente. Unlike the traditional fee-for-service model, in the HMO situation, the medical provider is not paid based on the value of the service. Defendants will argue that, because nothing was paid to the HMO, the plaintiff should receive nothing. That result would be a travesty. But lower courts will have to deal with this issue.

Q: Why is bad to leave issues to the courts of appeal?

A: It reflects the Court’s “ivory tower” view that other courts should deal with practical issues. But worse, it is a public disservice. The Court, like most courts, is quick to complain that judicial resources are scant and that courts should be given more funding. But when the Court can actually do something about it, the Court does just the opposite and creates a quagmire that will drain judicial resources for the next five years or more.

Q: Why would the Court leave matters undecided?

A: Well, it reminds me of the Mad Magazine character, Alfred E. Neuman’s, signature phrase, “What, me worry?” The court would rather leave the work to others until the Court has to step in. But of course, it took 23 years from the time Hanif was decided until now and, in that almost quarter of a century, countless time and money were expended on the issue. Also, an institutional shortcoming of the Court is that, with rare exception, the Justices and their staff attorneys have no trial-court experience, certainly not as civil-trial lawyers. (The United States Supreme Court has the same problem.) So it is very difficult for the Court to understand and to deal with the “in the trenches” practical consequences of their decisions.

Q: Again, do you have an example?

A: Yes. The Court held that a plaintiff is entitled to recover only the amounts paid or owed at the time of trial. But as any personal-injury lawyer knows, that is not nearly as simple to determine as it seems. It is often very difficult to get a provider to state unequivocally how much it is owed. It is almost impossible to get a straight answer from Medicare.

Q: So, the Howell opinion is not the end of the matter?

A: Not at all. Rather, it is the beginning of a new and uncharted world of personal-injury litigation. Tortfeasors, their insurers, and their lawyers, are already meeting and plotting how to use Howell to make litigation even more difficult for plaintiffs to recover fair compensation for their injuries.

Q: What’s the one point that the majority, in your view, failed to grasp?

A: They simply could not understand that a medical provider’s agreement to accept less than the amount of its charges is solely the result of the plaintiff’s healthcare insurance. The plaintiff paid for that benefit; it is a collateral benefit; she should be entitled to it under the collateral source rule. Even the Howell defendant knew this. When it petitioned for review, it argued that the collateral source rule should be abolished. The defendant had to do so because its proposed result was clearly contrary to the rule. The Court, though, claimed that it was reaffirming the collateral source rule. I disagree. The Court eviscerated the rule in practice while reaffirming it in theory.

Gary Simms is a Certified Appellate Specialist. He is a member of the California and Oregon bars. He has argued appeals in the California Supreme Court and Courts of appeal, the US Court of Appeals for the Ninth Circuit, the Oregon Supreme Court and Court of Appeal, and the Texas Supreme Court and Court of Appeals. He argued Howell v. Hamilton Meats on behalf of Mrs. Howell.

Related Content: Howell v. Hamilton: Questions and Answers

Beyaz: Fortified Yaz

Kristine Meredith — Mon, 15 Aug 2011 09:07:10 -0800

Beyaz is Bayer Healthcare Phamaceuticals’ newest birth control pill. In its latest marketing ploy, Bayer enriched its Yaz product. The new pill includes levomefolate calcium, which is designed to increase folate levels in women to help prevent neural tube birth defects. Neural tube birth defects include spina bifida and encephalopathy.

Prevention of birth defects is a good thing. But like Yaz, Beyaz contains ethinyl estradiol and drospirenone. With this troubling combination, Beyaz also carries the same increased risk of blood clots, pulmonary emboli, deep vein thrombosis, gallbladder disease and other potentially life-threatening side effects.

Do women need “fortified Yaz“? No. Folate, also known as folic acid, is naturally found in green vegetables such as spinach, asparagus and broccoli. Since the early nineties, the FDA has required adding folic acid to grains and cereals. A U.S. woman can meet her daily requirement of folic acid by eating a bowl of breakfast cereal.

Are U.S. Scientists in Actos Manufacturer's Pocket?

Kristine Meredith — Fri, 12 Aug 2011 21:30:55 -0800

In April, U.S. scientists reported that short term use of the popular diabetes drug, Actos (pioglitazone), posed no risk of bladder cancer, while use for more than two years was only weakly associated with an increased risk.

But last month a French study found diabetics who used Actos for longer than 12 months were exposed to a 40 percent increase in risk for bladder cancer compared to diabetics who had never used Actos.

In a footnote to their study the U.S. scientists admit:

The study was funded by a grant from Takeda the manufacturer of the Actos.
Takeda reviewed and commented on the study before it was submitted for publication.
The scientists are paid consultants of Takeda, as well as, other drug manufacturers GlaxoSmithKline and the Actos distributor Eli Lily.

When the U.S. study was published the U.S. Food and Drug Administration did not take any action against Actos or its manufacturer Takeda.

But, when the French study was published, France and Germany pulled Actos from the market. In response to the French study, the FDA issued a warning to consumers that Actos may increase the risk of bladder cancer when used for more than a year.

Did the funding from the drug manufacturers influence the results of the U.S. study? It sure looks that way. How did the French study uncover such a strong association of risk of bladder cancer, when the U.S. researchers missed it?

Is an Amusement Park Responsible for Injury a Guest Suffers on the Park's Thrill Ride?

Kristine Meredith — Wed, 10 Aug 2011 09:40:53 -0800

Maybe. A California court has ruled that the assumption of risk defense does not apply to rides at an amusement park. The guest will still need to prove her case; but the claim is not automatically barred as many would have expected.

In Nalwa v. Cedar Fair,LP., a guest who broke her wrist on a bumper car was allowed to proceed with her claim against Great America amusement park. But isn't an injury from getting bumped on a bumper car an inherent risk of the riding a bumper car? Perhaps, but the analysis goes further.

The Court explained that California laws require amusement parks to make their rides safe. If parks can avoid responsibility by asserting theassumption of risk defense, the purpose of the laws would be frustrated. Also, the Court pointed out that sitting as a passenger on a bumper car is not a vigorous enough activity to be considered a “sport”. And, the court determined that an amusement park owner should be held to a higher level of responsibility for safety of its rides -- not a lower or non-existent safety level.

The park guest assumes the risk of being frightened -- expecting a thrill; not an injury.

FDA Links Diabetes Drug Actos to Bladder Cancer

Mike Danko — Tue, 09 Aug 2011 14:44:10 -0800

Actos has become one of the most popular treatments for type 2 diabetes mellitus. Now the FDA is warning of a link between Actos and bladder cancer. A recent study showed that the risk increases by 40% after 12 months on the drug. That risk is significant enough that the use of the drug has been suspended in France and no new patients are to be started on the drug in Germany. The FDA is suggesting that doctors limit the use of Actos while it continues to study the matter.

According to class action law firm Girard Gibbs, who is investigating the drug, early symptoms include blood in the urine, an urgent need to urinate or pain while urinating, and low back or lower abdomen pain.

The irony is why Actos is so popular:

Actos, despite links to heart failure risk and other serious side effects, became the No. 1 diabetes pill after Avandia, the only other drug in that class, was found in 2007 to sharply increase risk of heart attacks. Avandia’s use was banned in the EU and sharply restricted here. Actos sales jumped from about $2.9 billion in 2006 to more than $4.3 billion last year.

More at the Actos lawyers' website.