Injury Law Blog

Big Pharma, FDA and Preemption: Who should be held liable?

Juliet@LaBovick.com (LaBovick Law) — Sat, 08 Nov 2008 06:22:40 -0500

The Supreme Court Case, Wyeth v. Levine (06-1249), the Supreme Court Justices are sharply divided over whether FDA regulations of labeling can prevent consumers from suing. Wyeth and the FDA presented the case before the Supreme Court involving Diana Levine, an amputee, whose bodily injury resulted from the use of the drug, Phenergan.

The debate among Supreme Court Justices is in the matter of whether consumers have the right to sue drug companies when the FDA has approved a drug for use. The strength of the argument presented by Levine's lawyers is that Wyeth is attempting to use FDA labeling to deny her a Consumer’s right to hold a Pharma company liable.

This is not the first case of involving a Pharma company being sued for harmful and deadly side effects of their drugs. A few notable instances include, Glaxo for their drugs Paxil and Avandia, Purdue Pharma for Oxycontin, Merck & Co. for Vioxx. In some cases, deficient research led to serious risks that was overlooked. In others, misleading advertising that omitted possible risks was the basis of these lawsuits.

The issue of FDA labeling as insurance to preempt lawsuits by consumers is an important aspect of the Wyeth v. Levine case. The issue of preemption is supported by the current Bush Administration in its attempts to reduce lawsuits by consumers against drug companies. Pharmaceutical companies argue that stiffer regulations and standards inhibit their research of newer, more effective drugs.

In the Levine case, Wyeth's argument reduces the lawsuit to a simple case of medical malpractice. Surprisingly, the FDA stands with Wyeth in the argument. The Federal Agency that is supposed to be on the side of Consumers, feels that once the FDA approved the drug for use, extraordinary risks that may appear as a result of use at some later point should not be a consideration for lawsuits against drug companies that have received FDA approval and are labeled as such. This begs the question: Who should be liable and held accountable if the FDA and the pharmaceutical maker fails to catch something in trials or overlooks a deadly side effects, because of the rush to get a drug on the market?

Another valid point of the argument by Levine’s lawyers is that Wyeth did not advise physicians or consumers of the danger of using the "push" method of injection of Phenergan. It is safe to say, that maybe more people would have had second thoughts about using this drug, if they would have known about the additional dangers. Moreover, in another case, Pfizer's anti-nausea drug, Vistrol, caused gangrene when injected into the arteries and Wyeth should therefore have requested an FDA to change the label warning of this on their Phenergan label.

The State of Vermont awarded Levine $6.8 million. In preemption arguments, federal law supersedes state law. Justices Scalia, Alito and Roberts argued in favor of Wyeth while Bader-Ginsberg argued in favor of Levine.

It would be simple to view Wyeth's position as one of preemption vs. adequacy of disclosure. Ultimately, the Supreme Court must address the potential for future lawsuits of this nature. They must also address the issue of what happens if the drug company gives the FDA false or misleading information about a drug that later proves to be harmful to consumers. Consumer advocates everywhere are following this case closely. Let’s see if the Supreme Court can do the right thing and tell Wyeth and the FDA that they do not get a free pass in this case. They are responsible for the safety of drugs that are put on the market, even if the FDA gives the drug a stamp of approval.

Jacob Goldstein, Writer and Blogger for the WSJ Health Blog, shares a few insightful comments from Diana Levine in his blog post "Wyeth v. Levine: The Mother of All Preemption Cases". He also includes a nice candid photo of the woman who Wyeth is going after for fighting for her rights to hold them accountable for taking their migraine drug that caused her to have her arm amputated. All eyes are on the Supreme Court regarding the decision of this case. Let's see if they can get it right and hold the Pharmaceutical companies liable for unreported risks and dangers associated with their drugs.

Every vote counts - My early voting experience

Juliet@LaBovick.com (LaBovick Law) — Mon, 03 Nov 2008 07:21:41 -0500

Yesterday I voted early in Broward County. It was quite an experience. The early voting polls were extended this weekend by Governor Charlie Crist for 12 hours for the weekend. It was strange that Palm Beach County early voting polls were only opened from 10-2 on Sunday, and Broward County early voting polls were opened 10-4pm. Therefore, I left the house at 9:15 am and arrived at the polls at 9:30 am. To my amazement, everyone else was thinking the same thing. The early voting lines were wrapped around two blocks. I grimaced and thought to myself do I come back or do I wait it out with The hundreds of people in line? I chose the latter and am very happy that I did. It was quite an experience. I met three wonderful people (a teacher, an audio engineer and attorney) that helped me pass the time away. I was equally impressed that two were in the 18-29 year old demo. One was a male middle school teacher and one was a female audio engineer.

I made it very clear to these two outstanding young people how impressed I was with their dedication and commitment to early voting. Emily, the audio engineer, told me that this was her second polling place that she had visited that morning. The other poll was at Broward College and was longer than the Pompano Beach public library. She had a family day planned to watch a football game with her family that kicked off at 1pm. Several of us were taking bets on when we would get into the building, Emily took 12pm, I took 1pm and another woman took 2pm. Unfortunately, I did not win the bet, but then again, none of us won. However, it did not matter, we all had fun and were making history by standing in the heat, with hundreds of other people waiting in line to cast our vote for our candidate.

Unfortunately, the early voting day did not go on without an incident. There was actually an auto accident involving a pedestrian. Yes, several hundred people witnessed an elderly woman in a car hit an elderly pedestrian in line waiting to vote. It was quite a scene. All of a sudden, we heard someone scream "she's been hit". People start running from the lines to see what has transpired. Being 6'1, I did not have to move that far, since I could see everything. Suddenly the police came, the fire rescue, the fire truck, and an unmarked police car. One of my new early voting friends, Linda, a Defense Attorney, agreed that this woman would only get money for her injury, if she was hurt. However, it was good that the injured pedestrian called the police and acquired an accident report, It is always important to get a police report for injuries involving a car and to exchange contact information between all parties.

Now back to my early voting experience. To my amazement, there were mostly Democratic supporters at the polls passing at literature. I saw only the Republican Senator Jeff Atwater's campaigners passing out literature on the Republican side. The Obama Campaign had massive volunteers passing out Crystal Springs water in Publix reusable shopping bags. I must add that they only handed out water and did not solicit for Obama. They had Obama, hats and pins on, so you could not miss the fact that they were with the Obama Campaign for Change as they were passing out water to people. I could not help but wonder where were the McCain Palin supporters? I was there several hours and did not see anyone out there for John McCain and Sarah Palin handing out waters to the die hards standing in line for hours waiting to cast their vote. I do not know if this will make a difference in the outcome of the election, but it did stand out in the minds of my three new early voting friends, the teacher, audio engineer, and the attorney.

By 1pm, we were very close to the front door. We all phoned our friends and family and told them that we were still in line waiting to go in to vote. It was not until 2:15pm, that we stepped foot into the Pompano Beach Public Library. However, Amy, the staffer from the Supervisor of Elections informed us that all 38 of us, would go in, take a seat and wait a little while longer before we could go into the back to cast our vote. We sat down and waited in the center of the library for about 15 min. The Librarian made a pitch for the Library's services. And then the entertainment came, two staffers from the Supervisor of Elections Office, were so funny, when they explained how to fill in the paper ballot. I wish that I could have taped it, because they were funny, telling tales of how people could not shade in the oval circles. There was one incident, where an elderly gentleman came up to them after he submitted his ballot and asked where is the ballot for voting for President? The staffer explained that after a ballot is submitted into the polling machine, it can't be changed. Once a ballot is submitted, it is official, there is no going back.

As I stood at the voting booth filling out my four page ballot, I knew that my one vote could make a difference. My standing in the heat for several hours was not in vain. I walked over to the finish line, placed my yellow folder on the table and the Senior staffer, walked me over to the machine to submit my ballot. One by one, I submitted all four pages. When I was finished, I was handed an I voted sticker. I took one extra, so that I could wear it on Tuesday, the actual Election Day...

I put on my I voted sticker and walked out of the building, at 3pm o Sunday, the line was still long. I told the people standing near the door, that they were almost there. Only a few more steps and they would be in the nice Air conditioned building. I smiled to myself and thought, I have made a difference. I voted for my candidate. I am also thankful that we have early voting in Florida and excellent poll workers, both paid and volunteers.

Now the question is Have you voted? If you did not, you have one more day... Tomorrow, Tuesday, November 4, 2008. I implore you, to make a difference and let your voice be heard. Vote, on Tuesday, November 4 at your designated polling place. We know one thing for certain that on Wednesday, November 5th either we will have a new President. It will either be John McCain or Barack Obama, President of the United States of America.

Have you voted for your Presidential Candidate?

New study shows increased risk Risk of Atrial Fibrillation from the use of Fosamax and Zometa

Juliet@LaBovick.com (LaBovick Law) — Thu, 30 Oct 2008 10:31:17 -0500

If you or someone you know suffers from osteroporosis and takes bisphosphonate medications, Fosamax (alendronate) or Zometa ( zoledronic acid), there is something you should know. Doctor Jennifer Miranda, reported findings from a study at a recent scientific conference, that shows patients taking these medications have an increased risk of 68% for a condition called atrial fibrillation. More specifically these Atrial fibrillation cases can lead to hospitalization or death. Atrial fibrillation is a dangerous condition in which the heart's natural beat and rhythm are disrupted and can lead to severe cardiac malfunction and death. This study was the result of a meta-analysis of more than 16,000 subjects, with a mean age of 69 to 75 years most of whom were female.

Bisphosphonates are a type of drug which inhibit the resorption of bone. They are commonly used to treat osteoporosis and other bone defects because, by reducing the body's natural breakdown of bone, they can help slow the rate at which bones become weak and brittle.

Dr. Miranda is quoted as saying, "In patients with increased risk factors, clinicians should be more cautious when choosing treatment for osteoporosis and weigh the risks against the benefit of decreased fracture risk." While previous clinical trials have shown that atrial fibrillation is a possible side effect from taking Fosamax and Zometa, Dr. Miranda expanded the research to look at existing literature to look for a link between the use of these drugs and atrial fibrillation.

Although the study was presented as an abstract and at a conference, the results of this analysis should not be embraced fully until the full article has been published in a scientific journal and examined by other scientists. Also, the mechanism by which bisphosphonates lead to this increased risk of fibrillation of the atria is not known; all that has been concluded thus far is that there is a link between the two events.

In response, the FDA has begun a safety review to study these results further, and has recommended that physicians to be watchful when prescribing this medication to patients who are already at risk for cardiovascular conditions. Patients taking this drug should consult with their Doctors and should not alter their prescription patterns, unless ordered by their Doctor.

Defense Attorney liable in Car Accident Insurance Claim

Juliet@LaBovick.com (LaBovick Law) — Thu, 30 Oct 2008 05:03:15 -0500

In a recent Arizona Appeals case, Chalpin vs. Snyder, the Court, raised several questions in a case regarding an insurance company not paying an insureds claim regarding a car accident. One of the most far-reaching question's is whether an attorney is liable for aiding and abetting in a malicious tort?

This case argues that Snyder, Attorney for the Reliance Insurance Company, assisted and participated in a tort against Hi-Health and its owner Mr. Chalpin, when the company refused to cover a driver-at-fault accident involving Mr. Chalpin’s daughter. Mr. Chalpin’s daughter was covered under the company policy as an occasional employee.

Two additional points of note are that 1) Reliance initially accepted the claim, and 2) Snyder initially held that the claim was valid. It was not until the claim exceeded a five million dollar expense that Reliance sought to disallow the claim. In fact, Snyder advised Reliance Insurance to sue their insured, Mr. Chalpin as a means of minimizing the value of the policy and thus reducing the acceptable settlement amount in the accident claim.

Two courts dismissed motions for summary judgment filed by Hi-Health and allowed the case to go to trial. Their reason was that the evidence as presented raised a credibility issue that was best decided by jury.

The subsequent appeal noted that the credibility issue would not have been present if Snyder had addressed the points of the suit in the motion. In short, Hi-Health claimed that Snyder knew that Reliance had improperly revisited its original decision to cover Mr. Chalpin’s daughter only after it realized the amount of exposure the company would suffer and that the subsequent suit was in fact an effort to shift its losses.

The court noted that Reliance failed to avail itself of a number of alternatives when issuing the original coverage, including modified coverage and deeper initial investigation of the person covered. The fact that Snyder was aware of these options, and initially held that the coverage was legitimate, was Snyder’s undoing.

Under general rule, “a lawyer is subject to liability to a client or non-client when a non-lawyer would be in similar circumstance.” Moreover, “when a lawyer advises or assists a client in acts that subject the civil liability to others, those others may seek to hold the lawyer liable along with or instead of the client.” (Paragraph 45 of the ruling) Thus, the court held that Snyder, due to active involvement in the misdirection of the case and its subsequent motions, was indeed liable and that aiding and abetting was a valid cause of action.

The Supreme Court reversed the trial court’s orders dismissing the aiding and abetting claims and granted summary judgment of the malicious prosecution claim.

Ironically, if Reliance Insurance had authorized the original settlement amount, consistent with the coverage obtained by the policyholder, this case would never have gone to trial.

Brain Injury victim awarded $10.5 million in Drunk Driving Case

Juliet@LaBovick.com (LaBovick Law) — Tue, 28 Oct 2008 19:46:05 -0500

A brain injured auto accident victim has $10.5 million reasons to be thankful after receiving a large monetary award in court The sum of $10.5 million was awarded to brain injury victim M. Lopez and her family in a Fresno courtroom. This was one of the largest monetary judgments ever assigned in Fresno County case of drunken driving.

June 9, 2007 was the day J. C. Ramirez, an employee of the Disabled American Veterans (DAV) Charities of Central California, chose to drive drunk. He was driving a dump truck used by the organization when he ran a stop sign at the corner of Church and Valentine. The truck, weighing 20,000 pounds, was traveling at 25 to 30 miles per hour when it struck and broadsided the brain injury victim.

Ramirez plead guilty, in an earlier court appearance, to charges of driving drunk. Ramirez was evidently drunk when he arrived at work on June 9th. He was allowed to operate the truck regardless of alcohol consumption.

A word of caution to employers: Make sure your workers ar not driving drunk or operating machinery while intoxicated. There is a good chance that the employer can and will be held liable. Take a close look at today's jury verdict.

The jury assigned the employer, DAV Charities the responsibility of $4 million in medical expenses covering past as well as future events. They awarded an additional $6.5 million to the family for pain and suffering equated with the injuries Lopez will live with for the rest of her life.

The brain injury victim in this case is a 57-year-old minimum wage earner . Since June 9th, she has been in hospitals and injured in the accident. She has been in hospitals and nursing homes. .

The size of the award is a first for the Fresno area. Large sums in cases of such severe brain injury have long been recognized as appropriate in other areas of California. Fresno juries have finally seen fit to follow the trend.

MSN posted a list of “The Drunkest Cities” in the U.S. with data taken from an article written by the editor's of Men's Health. Fresno, CA ranks as being one of the most drunkest cities at number 93. The MSN list ranks Denver, CO as the drunkest city at Number 100. Other cities listed as failing are Colorado Springs, Austin, Fargo, Anchorage and Omaha. Surprisingly, Miami, FL made the top ten list of least dangerously drunk cities. Now it is important to mention that MSN used the following factors when making their list: annual death rates due to alcoholic liver disease, as well as who's headed there by regularly downing five or more drinks in a sitting (CDC)., drunk-driving arrests (FBI) and the percentage of fatal accidents involving intoxicated motorists (U.S. Department of Transportation).

Click here to find out more on Brain Injury and Auto Accident Statistics regarding drunk driving. To read more from the Fresno Bee on this case, Click here.

Poverty and Blog Action Day

Juliet@LaBovick.com (LaBovick Law) — Wed, 15 Oct 2008 22:05:21 -0500

Today is Blog Action Day to help shed light on Poverty around the world. A lot can be said about the world's poor, but how much is really being done? In America, we have several working poor. There are many Americans working that can barely afford food for their families or healthcare, yet they go to work each and every day, but just do not make enough to make ends meet.

What can we do? We can all lend a helping hand to the less fortunate. We can support organizations that reach out and help the less fortunate. We can give money or we can give time.

One critical issue that many working poor families face is healthcare for their children. In Florida, we have a program called Florida KidCare that provides medical insurance for children, birth through age 18. If a family can't afford to pay the basic premiums, which can be as low as $15/month, a family may qualify for no monthly premiums for their children.

Another great organization that reaches out and helps the poor and less fortunate is the United Way of Palm Beach County. This group gives to families and supports many other non profits that help communities. We can all do something to lend a helping hand to the less fortunate. Education and programming is key to the solution.

Reach out in your community and find a homeless shelter that welcomes volunteers. Talk to the residents and listen. Share your story with them and encourage them. If you have no money to give, your time is just as valuable. If we all do something, our collective efforts can make a difference.

Check out blogactionday.org/ for more insights on what others are doing in the fight to end poverty.

Blog Action Day for Poverty - only 3 days away

juliet@labovick.com (Juliet Sallette) — Sun, 12 Oct 2008 22:46:34 -0500

Injury Law Blog Readers:

The LaBovick Injury Law Blog is participating in the National Blog Action Day for Poverty on October 15, 2008. It is a worldwide collective effort of over 7000 Bloggers discussing the subject of Poverty to their readers.

You may be asking yourself why is a law firm participating in something like this and why is it of interest to our readers? Poverty is something that affects millions of people in this country. The Attorneys of LaBovick & LaBovick constantly come into contact with personal injury victims seeking help. In some instances, the injured person my not have health insurance, they may not have a home or employment. In other instances, LaBovick & LaBovick Attorneys come across people in in need while working on Community Charitable projects. The firm tries to lend a helping hand to worthy causes that are making the community a better place and helping to solve critical needs for families and children.

What can someone do to participate in Blog Action Day for Poverty 2008?
Advocate - Consumer, Political, and Community
Work/Volunteer - Donate time to a worthy organization
Give - Donate money and resources
Inform - Spread the word to others

If everyone does something all of the collective efforts will make a difference. On October 15, 2008, join in and make a positive impact on the war against Poverty.

Please read and share the LaBovick Injury Law Blog post on Poverty with others. Your comments and feedback on the post will be greatly appreciated. If you decide to do something positive for the war on Poverty, please feel free to share your thoughts and ideas. Comments and feedback are welcome.

Use of Spiriva Handihaler may cause heart attacks, strokes or death

Juliet@LaBovick.com (LaBovick Law) — Thu, 02 Oct 2008 14:18:00 -0500

According to the research article, “Inhaled Anticholinergics and Risk of Major Adverse Cardiovascular Events in Patients With Chronic Obstructive Pulmonary Disease” written by Sonal Singh, MD; Yoon K. Loke, MD; and Curt D. Furberg, MD, and published in the Journal of the American Medical Association, people using the Spiriva inhaler possibly face the following risks: cardiac death, heart attacks or strokes. Alarmingly, the risks are greater for the Spiriva inhaler users than inhaler users using a placebo or other drugs. This study published in the September 24, 2008 issue of JAMA denotes that although the risks were small, the popular inhalers could lead to potentially life threatening side effects.

The German Manufacturer, Boehringer Ingelheim Pharmaceuticals Inc. makes Spiriva Handihaler (tiotropium) and the generic drug for Atrovent, Ipratropium, approved for treating COPD. In the United States, they have a joint marketing partnership with Pfizer Pharmaceuticals. In 2004, the inhaler was approved for a daily long-term treatment of bronchospasm, which is linked with COPD, chronic obstructive pulmonary disease.

It is important to note that both drugs have been used by approximately 8 million people worldwide. They are both known for helping to open passages and preventing spasms that decrease airways in the lungs to increase effective breathing.

The JAMA article details how authors, Sonal Singh, MD; Yoon K. Loke, MD; and Curt D. Furberg, MD analyzed the data from 17 randomized studies, and compared it to primarily older people on either Spiriva or Ipratropium, to people using placebos or other drugs. Their research found that patients had an increased risk over 50% in developing both fatal and non fatal heart problems, including heart attacks when they used Ipratropium or Spiriva.

Researchers are quick to add that additional studies are required to further evaluate the safety of the drugs. However, they recommended individuals with COPD to take precautionary measure prior to starting drug therapy that includes stop smoking, control blood pressure and cholesterol and the use of oxygen.

There was a statement issued by Boehringer and Pfizer indicating that disagreed with the analysis of the new study. They cited an analysis of 30 clinical trials that confirmed the safety of the Spiriva Handihaler and that showed no increased risk of all-cause death or cardiovascular death to the inhaler users.

However, the Food and Drug Administration, FDA issued an early communication in March 2008, that indicated they are evaluating the potential connection between the side effects of the the Spiriva Handihaler and strokes. The March 2008 FDA communication was quick to point out that their investigation was precautionary and did not mean that Spiriva causes strokes. They encouraged people on the drugs to not stop taking their drug based on the FDA early communication, in March but to wait until they have confirmed conclusions and recommendations.

We can only hope that the FDA’s conclusions will not be too late for some individuals.

FDA Issues Recall of Medtronic Infusion Pump

Juliet@LaBovick.com (LaBovick Law) — Thu, 02 Oct 2008 13:35:36 -0500

A potential for life-threatening blockages has prompted the recall of the Medtronic Infususion Pump. The FDA and Medtronic, Inc. issued a Class I Recall of the Medtronic Infusion Pain Pump, Neuromodulation INDURA IP. This recall includes the following models: intrathecal catheter, the suturless pump, and the intrathecal catheter pump segment revision kit.

Unfortunately, this is a serious recall, since a Class I Recall is the most serious type of product recall issued by the FDA, Food and Drug Administration. A Class I Recall involves situations where there is a reasonable probability that death or a serious injury will occur from using the product.

How are the recalled Products used?
The intrathecal catheter revision kits or the intrathecal catheter use a sutureless connector for the final connection to the implanted Medtronic SyncroMed II, SynchroMed EL, and IsoMed infusion pumps. The catheter is a part of an infusion system. The catheter delivers and stores drugs into a specific space.

What promoted the Recall?
The recall of the Medtronic Infusion Pump was due to the potential misconnections of the Medtronic sutureless connector ("SC") catheters from the catheter port on the pump. Reports have shown these misconnections to have caused a blockage between, the catheter port on the pump, disconnection from the pump connector and the sutureless pump connector.

The following product models are included in the Recall:
Sutureless Pump; Connector Revision Kit, Model 8678;
Intrathecal Catheter, Model 8731SC;
Intrathecal Catheter Pump Segment Revision Kit, Model 8596SC
Intrathecal Catheter, Model 8709SC

It is important to note that this recent recall does not include the MiniMed infusion pumps made by Medtronic.

What should you do if you have a Pain Pump?
If you or a loved one have used a Pain Pump since January 22, 2007, contact your physician to ask questions. You can also contact Medtronic Patient Services at 1-800-510-6735, Monday – Friday, 8 a.m. to 5 p.m. Central Daylight Time.

Click here to read FDA Recall of Medtronic Pain Pump.

Decrease in Drunk Driving Deaths in Florida

Juliet@LaBovick.com (LaBovick Law) — Fri, 29 Aug 2008 07:30:16 -0500

Drunken-driving deaths decreased in 32 states from 2006 - 2007, according to a NHTSA report on Thursday. However, alcohol-related fatalities among motorcycle riders increased around the country.

According to the report, in Florida there 143 fewer deaths in 2007 (3,214) that were traffic related fatalities from 2006 (3,357).

Overall, almost 13,000 people were killed in crashes in which a driver had a blood alcohol concentration of 0.08, the legal limit in the United States, or at higher levels, compared to the 13,500 in 2006.

The report also shows that in 2007, 1,621 motorcyclists were killed in alcohol-impaired crashes, a 7.5 percent increase from 2006.

In light of the Labor Day weekend, please drive responsibly. If you are driving and happen to have a drink or two, think twice before getting behind the wheel of a car. Ask a friend to drive you home or call a cab before risking your life and the life of others, by driving intoxicated. Law Enforcement in Florida is in full force this weekend and will be ticketing and arresting people that are driving drunk.

Click here to see the report from the NHTSA on traffic related fatalities in Florida and all of the states across the Country.

Click here to read the AP/MSNBC article on Drunk Driving Deaths fall in 32 States.

Click here to read more about Driving and roadway safety.

Election Day - Exercise your right to vote

whistleblower@labovick.com (Brian F. LaBovick, Esq.) — Tue, 26 Aug 2008 08:18:55 -0500

I love election day. I really enjoy going out to the polls. It feels important. It should feel important because it is important!

Voting in America is easy. Because of that, many people take their right to vote for granted. How often do we hear about "elections" in far away lands where there is only one party running? How often do we hear about military juntas hunting down opposition voters and terrorizing or killing them to keep their party in power? How many countries are affected by election or voter fraud? There are too many, far too often.

Here in America we have peaceful organized and honest voting. We have such smooth elections that our voting right is now boring. This is especially true for the primary elections. What was the worst voting problem to happen during an American election in the past decade? Do you recall the hanging Chad? Thankfully, no one rushed to pick up arms and start shooting at the Republicans or Democrats. You may laugh, but that is exactly what could happen in many places around the world.

I believe every citizen has more then just the right to vote. I believe we each have an obligation to vote. We live in the "freest" country in the world. It takes no longer then 15 minutes to vote. You only need to vote once or twice every few years. Your vote is the easiest formal action you can take to insure the freedom of our great land.

Republican, Democrat, Green Party, Independent, I don't care. Exercise your right to vote. I recognize you are one vote among millions and millions. It does not matter. Your vote can make a difference.

Thanks for exercising your freedom to vote.

Stepping off the soapbox!

Brian

Vytorin Study comes under dispute

Juliet@LaBovick.com (LaBovick Law) — Fri, 22 Aug 2008 09:29:50 -0500

There seems to be a dispute between two studies on risks involving Vytorin. In recent trials, data provided to the Food and Drug Administration on Thursday showed no increased risk of cancer.

However, a recently published study called Seas, disputes these findings and found an increased risk of cancer and deaths from cancer in patients taking Vytorin, compared with those given a placebo.

According to a WSJ article, the new Seas study, released in July, has surprised investors and the medical community.

Click here to read more on this Vytorin Study dispute from the Wallstreet Journal. (Note: Subscription required)

Economic loss and valuation of a Claim

whistleblower@labovick.com (Brian F. LaBovick, Esq.) — Mon, 18 Aug 2008 23:17:54 -0500

Have you ever noticed that sometimes things in life are unfair? In the legal world that adage also holds true. Take for example: If an unmarried adult, without minor children (say a grandmother whose children are grown and whose husband passed away) goes to see a doctor and that doctor accidentally kills her due to obvious and total malpractice there is no way to bring a malpractice suit. The adult children do not have the right to bring that suit on behalf of their dead mother. That seems unfair to me.

Another example, is pets. Dogs, cats, etc.., have no value beyond their replacement value. In other words, if I have a fantastic dog who is my kids best friend and a great part of our family and someone kills that dog, I can only recover the value to replace that dog. If that dog was a mutt from the dog-pound, then the replacement cost is about $60.00. The emotional loss is terrible for the family, but the economic loss small.

What would you do if you took your photos to a photo lab for development and they lost your photos or even destroyed them? There is a value to those photos. The emotional value is very large, but the economic value is small. Although you have the right to recover for any loss, you are likely restricted to the economic loss. That economic loss is so small that is isn't worth the fight. I do not believe Florida law has changed to allow emotional losses in commercial cases. There is a legal rule called the Economic Loss Rule that prohibits emotional damages in commercial cases. I have not researched the Economic Loss Rule for some time, but I do not believe it has changed. Recently I saw a legal article advocating the law permit emotional losses in some situations: Movers who destroy family heirlooms that are worthless but have great family value was the example given *(which is similar to lost photos). I do not believe, however, the present state of the law permits such recovery.

Roy C. Young wrote an interesting article on economic loss called “Florida Supreme Court Overturns the "Economic Loss Rule". In the article, he shares the following sentiments:
That Florida recognizes the responsibility of individual professionals for their negligent acts is also evidenced by the express provisions of two legislative enactments that are relevant here–section 471.023, Florida Statutes (1993), pertaining to engineers, and section 621.07, Florida Statutes (1993), pertaining to professional associations. Both of these statutory provisions permit professionals to practice in the form of a corporation or partnership for the purpose of rendering professional services. However, both sections indicate an intent to hold professionals personally liable for their negligent acts by expressly stating that the formation of a corporation or partnership shall not relieve the individual members of their personal professional liability.

Section 621.07 of the Professional Service Corporation Act ("Act"), states in pertinent part:
Nothing contained in this act shall be interpreted to abolish, repeal, modify, restrict, or limit the law now in effect in this state applicable to the professional relationship and liabilities between the person furnishing the professional services and the person receiving such professional service and to the standards for professional conduct; provided, however, that any officer, agent, member, manager, or employee of a corporation or limited liability company organized under this act shall be personally liable and accountable only for negligent or wrongful acts or misconduct committed by that person, or by any person under that person's direct supervision and control, while rendering professional service on behalf of the corporation or limited liability company to the person for whom such professional services were being rendered . . . .

§ 621.07, Fla. Stat. (1997). Similarly, section 471.023(3) expressly applies to engineers and states in pertinent part: (3) The fact that a registered engineer practices through a corporation or partnership shall not relieve the registrant from personal liability for negligence, misconduct, or wrongful acts committed by him. . . . Any officer, agent, or employee of a corporation shall be personally liable and accountable only for negligent acts, wrongful acts, or misconduct committed by him or committed by any person under his direct supervision and control, while rendering professional services on behalf of the corporation.
After reading this excerpt, one may ask the question: does this mean that person is or is not responsible?

First, I must point out that this is one of those interesting niche areas of the law. The Economic Loss Rule was supposed to stop lawsuits for pain and suffering damages in contract cases. In other words, it was intended to limit damages to the economic effect of the contract so people wouldn't be suing for their inconvenience damages, their pain and suffering damages etc, when one party breaches a contract.

There are, however, many exceptions that the rule so the rule is a fuzzy line, not a bright line. The Supreme Court case Phillipe H/ Moransais, vs. Paul S. Heathman, an individual, Bromwell & Carrier, Inc, a Florida corporation, Lennon D. Jordan and J/ Larry Sauls is a fuzzy case which is an exception to the economic loss rule. Another fuzzy area is professional malpractice. Any time you are dealing with professional services and those services are done negligently there is an issue as to whether the Economic Rule applies.

I hope that this explains economic loss and how important it is when an attorney or an insurance company values a case.

Brian.

Toy Safety Standards and New Legislation

Juliet@LaBovick.com (LaBovick Law) — Thu, 14 Aug 2008 22:56:33 -0500

Health writer, KATE BARRETT, wrote a great article for ABCNews.com, entitled: "New Toy Safety Standards Become Law". The article discussed in detail, the new legislation on Consumer Product Safety and how it impacts children's toys. The article highlighted the addition of tough new standards that address lead levels and chemicals in products for children under 12 years old. According to the new Bill, safety tests will be required with the efforts of keeping kids safe and preventing recalls.

This Bill was a Bi-partisan effort on behalf of our legislators in the House and the Senate. According to Senate Commerce, Science, and Transportation Committee chairman Daniel K. Inouye, D-Hawaii, "The Consumer Product Safety Commission (CPSC) has been a neglected agency for too many years, but this legislation puts an end to that neglect. Texas Republican, Joe Barton, ranking member on the House Committee on Energy and Commerce panel, stated "One of the roles of government is to get between kids and the sorts of hazards that are well beyond parents who aren't engineers and chemists with laboratories at their disposal". It is nice to see members of the House and the Senate putting their differences aside and doing what is right to protect our children. The last thing that we need is a repeat of the horrors from the recalls from last year for toys such as the Thomas Tank Engine trains and Dora the Explorer/ Diego toys.

Click here to read the ABC.com article on Safety for Children's Toys.

Click here to read Consumer Safety Protections Bill H.R. 4040

Our legal freedom and the Beijing Olympics 2008

info@labovick.com (Mark A. Greenberg, Esq.) — Sun, 10 Aug 2008 12:22:54 -0500

We sometimes forget how fortunate we are to live in an open Society. Journalists covering the Beijing Olympics have been routinely prevented from going into certain parts of Beijing, including Tiananmen Square, have been promised access to the Internet and have not been able to get it. We forget how lucky we are in the United States to have it here, where we can look at things and do what we believe is right and say anything and be critical of Government Officials, Lawyers, Judges and anyone that we want.

As an Attorney, when we are reviewing our files and looking at cases, sometimes we are critical of certain people involved, whether it is the Judge, opposing Counsel, or witnesses. But what we take for granted in our Society is that we can be openly critical, whereas, in a lot of places, we would not have that option. It is special for us to be able to voice our opinions.

In relation to Personal Injury cases, in most Countries, you would not have the right to bring a Suit if you have been hurt. If there is no Healthcare and you do not have the money for it, you would just suffer. When people talk about Tort reform and that there are too many lawsuits, most of those people have not been on the receiving end of an injury. If they ever are, my suspicion is that their opinions would change. It is special in the United States that we have the right to try and balance the scales, when someone has been hurt. The Justice system was never designed for someone to try and make a profit and never have to work again for a relatively minor injury. But it is designed to allow people who have been hurt to get the medical treatment they need to fix the Injury and try to bring them back as close as possible as to where they were before the injury. If they are not able to be brought back physically equal, the Justice system attempts to balance that scale. In addition, the Justice system attempts to provide the injured party the finances that will allow them either to get nursing treatment at home or additional medical care to help alleviate their pain, or wages that they would have earned but can’t because of whatever has happened to them.

Enjoy watching the Beijing Olympics 2008… Go Team USA!

ABC's of Personal Injury Protection (PIP) in Florida

info@labovick.com (Carl J. Wald, Esq.) — Wed, 06 Aug 2008 18:55:12 -0500

A common topic that we are asked to explain to clients in our Florida law office is the Florida Law on PIP. There are several misconceptions out there on what PIP covers. This blog post will go over the ABC's of Florida Personal Injury Protection Insurance.

PIP is a guaranteed health insurance policy for a person who is injured in an automobile accident. When a person is injured in an automobile accident if they do not have regular health insurance, but they have PIP insurance, they are guaranteed $10,000 of health insurance less what ever deductible they have chosen. In other words, the person injured is guaranteed $10,000 worth of health benefits. If they have a $1,000 deductible for example, the first $1,000 of medical bills is their responsibility.

PIP pays 80% of your reasonable and necessary medical bills. The PIP law just changed, so there are Medicare fee schedules that PIP pays 80% of those schedules. For example, if there is a charge for $100, Medicare's fee schedule would be $80. Eighty percent of the first bill would get applied to the deductible. When the deductible is met, PIP then pays 80% of those next bills, up to $10,000. One of the benefits of PIP is that it gives the injured person in an accident, $10,000 of insurance for their medical bills. It is also the law in Florida as the minimum requirement to operate a vehicle. In the State of Florida, you must have PIP and Property damage insurance.

Is it always the $10,000 limit?
Yes. I have seen on occasion, extended PIP, but those would be associated with out of state policies. I have not seen extended PIP on a Florida policy.

What is the deductible for PIP?
You can manipulate your deductible, meaning you have options too choose from, which includes: no deductible, $500 deductible or $1,000 deductible.

Does PIP cover you in an accident that happens out of Florida?
The PIP statute is very clear about this for Florida residents. If you are a Florida resident, and involved in an accident out of the state while driving your vehicle, you are covered. If you are operating another vehicle, then you are not covered by your PIP policy.

According to the Florida statute, it states that the Insurance company shall pay Personal Injury Protection (PIP) benefits for and there are four scenarios.

The first scenario is: Accidental Bodily Injury sustained in Florida by the owner, while occupying a motor vehicle. Or while not the occupant of a self propelled vehicle, if the injury is caused by physical contact with a motor vehicle. An example of this is if the injured person was a pedestrian or on a bicycle.

The second scenario that an insurance Company will pay Personal Injury Protection (PIP) benefits is for accidental bodily injuries sustained outside of the State of Florida but within the United States by the owner, while occupying the owner's motor vehicle. Meaning the owner has to be in his/her own motor vehicle that is insured. He can't be in a friend's motor vehicle.

The third scenario where an insurance company will pay Personal Injury Protection (PIP) benefits is for accidental bodily injuries sustained by a relative of the owner who resides in the same household of the insured. This is called the relative resident rule under the Florida statute for PIP. Under any of the circumstances just described. Meaning injury in the state, while occupying the motor vehicle or caused by the motor vehicle, or if it is outside of the state of Florida, if that person was occupying the owner's motor vehicle. This extends to resident relatives, for example, if I am married and I own a vehicle, but my wife does not and my wife is a passenger in my car and gets injured, she is entitled to PIP under my policy, because she is a resident relative. The definition of a resident relative, means the person is a relative by blood or marriage and lives in the same household. If it is a non-married, significant other, such as a boyfriend or girlfriend, the person does not qualify as a resident relative.

The fourth scenario where an insurance company will pay Personal Injury Protection (PIP) benefits is for accidental bodily injuries sustained in this state by any other person while occupying the owner's motor vehicle. An example of this would be if I have a friend who is in my vehicle, and that friend does not own a vehicle of his/her own, nor does he/she live with a resident relative, then he can get PIP benefits through my policy. This applies to any friend driving the car of a person with PIP.

Does PIP pay for lost wages if I am in an accident?
Yes, Personal Injury Protection (PIP) Insurance pays 60% of lost wages. Typically the insurance companies will see what your current job at the time of the automobile accident was and they will pay 60% of those current wages.

Does PIP cover death benefits?
Yes, this was just enacted through the Florida Legislature as a part of the PIP benefits. If someone dies as a result of an automobile accident, PIP will pay $5,000 of death benefits. This was legislated when the PIP statute was put into effect.

When is PIP required in Florida?
The law in Florida says that if you have a vehicle in Florida for more than 90 days, you must have the vehicle registered and you have to comply with the law of the State of Florida.

How is PIP different from Property Damage Insurance?
PIP is Personal Injury Protection, it pays for personal injuries. Property Damage Insurance pays for property damage. When you have PIP (Personal Injury Protection) Insurance, this pays for your medical bills, regardless of who is at fault in the accident. Property Damage Insurance, pays for the other person's vehicle, if you damage the other person's vehicle. An example of this is if I get into an auto accident with you, regardless of who is at fault, PIP pays for my medical expenses and your PIP pays for your medical expenses. If the accident, was my my fault, my Property Damage Insurance, is what you would use to pay for the repairs on your vehicle.

I hope that I have given our readers the fundamentals of the ABC's of PIP. If you have any questions, please drop me line and let me know.

Carl J. Wald, Esq.

Join LaBovick & LaBovick helping the uninsured at a Back to School Florida KidCare enrollment fair

juliet@labovick.com (Juliet Sallette) — Sat, 02 Aug 2008 07:18:44 -0500

LaBovick & LaBovick, PA invites you to attend the Back to School Florida Kidcare enrollment Fair in West Palm Beach on August 3, 2008 from 12 noon - 3pm. The location is 2601 Military Trail (Corner of Crest Haven Blvd & Military Trail) West Palm Beach, at the Shoppes of Cresthaven.

This event is being put on through the efforts of Palm Beach County Coalition members: Kid Finders Network, Childrens Services Council of Palm Beach, Health Care District of Palm Beach County, Stay Well, Florida Department of Children and Family, Healthy Mothers and Healthy Babies, Procer Cultural Organization, Florida Covering Kids & Families, LaBovick & LaBovick, PA and many others.

The Health Care crisis in Florida is serious with over 700,000 children without Healthcare coverage, yet many are eligible to receive Florida KidCare insurance, either by a low cost or free option.

"The purpose of the Back to School Florida KidCare Enrollment Fair is to bring awareness of the healthcare coverage available to kids in Florida without health insurance coverage", stated, Attorney Esther Uria LaBovick, Partner, LaBovick & LaBovick, PA.

Coalition Member, Kid Finders Network will provide digital fingerprints to kids enrolling in Florida KidCare. KidFinders Network will also be give out professional Kits for Child ID cards at the Florida KidCare Back to School Enrollment Fair.

The main thing is that Free School Supplies will be given to Kids attending the event. There will be food, Entertainment and fun giveaways for families and kids attending the Back to School Enrollment Fair.

Please Share this information with any family that has children and cannot afford to provide healthcare coverage for their kids.

Palm Beach County Florida KidCare - Back to School - Enrollment Fair Sunday, August 3, 2008 -

12 noon - 3pm - Admission is Free

How Florida Attorney contingency fee structures affect Consumers

whistleblower@labovick.com (Brian F. LaBovick, Esq.) — Thu, 24 Jul 2008 08:02:35 -0500

Recently, we received the following question from a reader of our Whistleblower Law Blog in response to a post on Shedding the Light on Attorney Contingency Fees.

“What limit do you suggest on contingency fees - versus none? Unfortunately, except in certain prof liab and other law, we are hearing of contingencies of up to 65% and 70% in certain jurisdictions.”

First, I must say, this was a thoughtful question. Here is my belief on the appropriate cap on attorney fees. I am writing my response on our LaBovick Injury Law Blog, because I believe this will interest our readers.

In Florida, contingency injury cases are capped by the Florida Bar. To exceed the cap the attorney must obtain special permission from the judge assigned to the case. It is my inherent belief that market forces do a better job lowering injury case contingency fees then a Florida Bar fee cap. (I must add that I am a Republican.) There are a huge number of personal injury lawyers in every community in the country. Under typical market circumstances, the sheer number of attorneys competing for injury cases would drive fees down. The Florida Bar instituting a fee cap effectively created an informal "State Assigned" minimum fee. This is a good marketing trick for injury lawyers because the consumer believes the Florida Bar has regulated the minimum fee for injury cases. There are so few lawyers who advertise lower contingency fees then the Florida Bar contract that they are irrelevant. However, both attorneys and consumers perceive lower fees from the small number of practitioners as low quality legal work. In reality the Florida Bar, fee cap has created a situation where the cap is actually a minimum fee and some attorneys actually go to court and ask the Judge for permission to charge more, not less.

If there was no Florida Bar fee the market would, over time, take effect. Better lawyers would charge more and less qualified or less experienced or "mill" business models would charge less. The consumer could investigate and choose the attorney they wanted. The consumer's investigation into fees vs. reputation would create competition between attorneys, even those with good reputations, and would force them to charged less to compete in the market. That was the long answer to your question: I do not believe there should be any "cap" on fees because it creates an artificially high fee for the consumer.

Brian

How Florida Attorney contingency fee structures affect Consumers

whistleblower@labovick.com (Brian F. LaBovick, Esq.) — Thu, 24 Jul 2008 08:02:35 -0500

Recently, we received the following question from a reader of our Whistleblower Law Blog in response to a post on Shedding the Light on Attorney Contingency Fees.

Brian

Deny, Delay, Defend - How Insurance Companies handle claims

whistleblower@labovick.com (Brian F. LaBovick, Esq.) — Wed, 09 Jul 2008 17:43:58 -0500

Have you paid your Insurance premium lately? If so, your premiums are helping the Insurance Industry account for over $1 trillion in annual premiums and amass over $3.8 trillion in assets, which happens to be more than the GDPs of all but two countries in the world, the United States and Japan. Despite this overwhelming success, the Insurance still try and do anything to avoid paying claims for their clients.

The consumer rights organization, American Association of Justice, released the comprehensive report, The Ten Worst Insurance Companies in America: How They Raise Premiums, Deny Claims, and Refuse Insurance to Those Who Need It Most." This report highlights 10 of the worst insurance companies for consumers based criteria such as, SEC and FBI records, testimony from former insurance agents and adjusters, court documents and more.

The report ends with making a call for "Pro-Consumer Insurance Reforms" and making a suggestion for the following three points:

1. Require Insurers to Work in Good Faith

2. Require Prior Approval of Rate Increases

3. Establish an Insurance Consumer Advocate

The remainder of the top 10 list of worst insurance companies for consumers is rounded out by the following:

UNUM, - Disability Insurance, Life insurance, supplemental and accident insurance
AIG, - Auto insurance, life insurance, accident and health insurance, property and casualty
State Farm, - Auto, life, health, home owners insurance and health insurance
Conseco, - Health Insurance, Life Insurance and Annuities
WellPoint, - Health benefits Company
Farmers Insurance - Auto, Life and Homeowners Insurance
UnitedHealth, - Health care Insurance
Torchmark, - Holding Company offering life and supplemental health insurance
Liberty Mutual - Auto, Life, Homeowners and Commercial Insurance.

Over the past 16 years, I have handled thousands of Personal Injury cases against several of the companies on this list and a host of others. I can attest firsthand that some companies are better than others at handling claims for their Insured and helping the needs of the injured.

I find it no surprise that Allstate made the top of the list, nor am I not surprised by the findings of the report: The Ten Worst Insurance Companies in America". I do find it strange however, that the insurance companies are so quick to harm and work against the interest of their own insured clients.

A few comments from bloggers around the country on this AAJ report include:

Randy David, blogger for Gotcha Covered, wrote the post Is Allstate the Worst Insurer in America? He added to the discussion that "the designation is not surprising, given the ongoing war between the insurer and trial lawyers over auto insurance accident claims."

David Gottlieb, blogger for No Fault Paradise, wrote the post, Top Ten Insurance worst Insurance Companies for Consumers. He has some pretty interesting comments on his blog regarding the post. Great discussions on the subject of the insurance industry and how premiums are increasing at an alarming rate faster than the incurred losses for the Insurance carriers.

John Day, blogger for Day on Torts, wrote the post, Ten Worst Insurance Companies in America and listed the top 10 Insurance companies that were in the AAJ report.

I look forward to see how the Insurance Companies and the public respond to this AAJ report on their industry that outlines how consistently they put profits over their policyholders.

After reading the AAJ report, I would love to hear from consumers on how they feel their insurance company is treating them. Has the report made you think differently about your provider?

I welcome comments...