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Philadelphia Injury and Malpractice Attorneys – The Beasley Firm

Court Removes Absurd Barrier To Missed Pap Smear / Cervical Cancer Case

By Max Kennerly, Esq. on April 1, 2014 - No comments

When it comes to medical malpractice lawsuits, the deck is often stacked against patients. That’s a hard concept for many people to accept after years of advertising and lobbying by insurance companies and health systems to mislead the public, but, truth is, studies even by medical professionals have shown that the malpractice system, if anything, is too protective of doctors, and too often lets them off the hook for deadly mistakes.

A malpractice case decided last week by the Court of Appeals of Georgia shows just how difficult these cases can be, and how it can take years, and numerous court rulings against the patient, just to get a case in front of a jury.

Cathleen Lavelle had a pap smear in April 2006, which was then sent along to the Laboratory Corporation of America (“LabCorp”) for review. Patients aren’t told this, but, when pap smear biopsies are sent off for review, they are often not reviewed by a doctor but by a “cytotechnologist” reviewing pathology slides from over 100 patients a day. The cytotec isn’t supposed to do the work of the medical pathologist, they’re just supposed to see if there’s anything at all abnormal about the cells on the slide, and, if so, then send the slide to a pathologist for a real review.

The slides from Cathleen’s Pap smear showed abnormalities, but the cytotec missed them and so her developing cervical cancer went undiagnosed. The whole point of a pap smear, of course, is to catch these abnormalities early on and to treat the abnormality before it becomes cancerous, as more than 90% of these cases can be successfully treated if caught early on. If not caught early, however, it can be deadly. Cathleen’s opportunity was lost and her cancer spread. The cancer was eventually diagnosed, but by that point it was too late, it metastasized, and it took her life.

Her husband brought a malpractice lawsuit against her gynecologist and against LabCorp, alleging that they had failed to timely diagnose her abnormalities and then treat her, thereby preventing the development and spread of her cervical cancer. His lawyers then did what good lawyers do: they asked a Professor of Pathology, Oncology, and Gynecology and Obstetrics at Johns Hopkins with experience in cytotechnology and interpreting pap smear slides and who has been publishing about these issues in peer-reviewed journals for years to review the case, to see if those original slides showed signs of cellular abnormalities, and to give her opinion about whether or not the doctor and lab court were negligent.

The medical professor said that the case was a “blatant miss,” that the cytotech should have noticed the abnormalities on the cells, and that a pathologist would have agreed the abnormalities warranted specific follow-up by any gynecologist or family medicine doctor. The medical professor then also said that, even beyond her own “focused review” on the slide itself, two “blinded reviews” were done, in which a cytotech or pathologist looked at the same slides without knowing where they came from and found cell abnormalities.

Sounds reasonable enough, doesn’t it? What more could possibly be asked of a plaintiff in a malpractice lawsuit than to hire one of the top experts in the country to explain, in detail, what went wrong, what should have happened, and how her outcome would have been different if the right thing had been done?

LabCorp, however, challenged the sufficiency of the expert’s testimony, and – incredibly – convinced the trial court to throw out the case against it, without even a jury trial. In short, the court held that the professor of pathology oncology couldn’t be trusted to do a focused review at all (due to ‘hindsight bias’), and that the blinded reviews were done improperly. The judge, of course, had no medical training, experience, or education, at all, and then they’re just supposed to apply the law, and not think they know the medicine.  Nonetheless, the Court felt its interpretation of guidelines provided by the College of American Pathologists and the American Society of Cytopathology was good enough that it could tell a Johns Hopkins professor that her opinion was “unreliable” and that she isn’t even allowed to testify before a jury.

If this sounds, well, crazy, it’s because it is crazy, and yet it happens all the time. Courts are supposed to be mindful of the potential for “junk science” to make its way into the courtroom (as I’ve written before, most of this junk science comes from big corporations or from malpractice insurers trying to avoid paying legitimate claims), but many courts take that “gatekeeper” function way too far, and presume it’s up to them — rather than the experts and a jury — to decide what the science and medicine really show.

Thankfully, last week, the Court of Appeals of Georgia reversed the trial judge’s ruling and sent the case back down, with the expert’s opinion back in evidence. I would say “all’s well that ends well,” but three points need to be made:

  • First, it has been several years since this lawsuit was filed, and the surviving spouse has still not been given their chance to present their case to a jury, and, even now, it will be at least several months before they get the opportunity to do so, so there’s more than a little bit of “justice delayed, is justice denied.”
  • Second, in the Georgia Court of Appeals, four judges agreed to reverse the case, but two judges felt the trial court was right! This shouldn’t be a close question.
  • Third, following up on that last point, this case is just one of many. Throughout the country, everyday malpractice plaintiffs have parts of their cases dismissed, and sometimes the whole case dismissed, because a judge ruled that they knew the science and medicine better than the expert witness asked by the plaintiff to testify in the case.

I hope this ruling is part of a trend, with courts being a little more respective of the role of experts and the jury in our system, but I fear that this is more likely just a successful battle in the middle of a long and difficult war. Congratulations to Frank Ilardi in Atlanta for his hard-won victory, and I wish him and his client the best on their continued pursuit for justice.

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Scott Bennett Elected to the PBA’s House of Delegates

By The Beasley Firm on April 1, 2014 - No comments

Scott-BennettThe Beasley Firm is proud to announce that attorney Scott Bennett has been elected to the PBA’s House of Delegates. Mr. Bennett will represent Philadelphia beginning at the adjournment of the 2014 Annual Meeting in Hershey, PA.

The Pennsylvania Bar Association is a non-profit organization incorporated in 1895, whose missions statement reads:

“to advance the science of jurisprudence; to promote the administration of justice; to see that no one, on account of poverty, is denied his or her legal rights; to secure proper legislation; to encourage a thorough legal education; to uphold the honor and dignity of the Bar; to promote diversity throughout the profession; to cultivate cordial relations among the lawyers of Pennsylvania; and to perpetuate the history of the profession and the memory of its members.”

The House of Delegates is charged with establishing the Association’s policies. The House is divided into 12 zones, comprising different districts in PA. Additional responsibilities include supervising the Board of Governors, Sections and Committees, and any employee or agent of the PBA.

Since 1977, Scott Bennett has been the firm’s go-to lawyer in litigation regarding automobile claims and insurance, and has won many substantial judgements. He has years of experiencing handling auto accident cases involving roadway defects. He has also posted impressive awards for clients in cases involving medical malpractice, product liability, civil rights, and premises liability.

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Can We Prove In Court That Testosterone Gel Causes Heart Attacks and Strokes?

By Max Kennerly, Esq. on February 23, 2014 - No comments

In early February, the media exploded with reports that the FDA was investigating(1) whether low-testosterone therapies like Axiron, Androgel, Testim, and Fortesta might be tied with an increased risk of heart attacks and strokes. Yet, as the FDA said in its safety announcement, “At this time, FDA has not concluded that FDA-approved testosterone treatment increases the risk of stroke, heart attack, or death.” A plaintiff bringing a lawsuit thus can’t run to court and point to the FDA announcement as definitive proof that testosterone therapy caused their (or their husband’s) heart attack or stroke. So evidence can they use to prove or disprove such a causal link? It’s a question I’ve been getting a lot lately, so I thought I’d discuss it here.

The FDA’s investigation is based upon a November 2013 study in the Journal of the American Medical Association(2) and a January 2014 study posted on PLOS ONE(3). The JAMA study found “Among a cohort of men in the VA health care system who underwent coronary angiography and had a low serum testosterone level, the use of testosterone therapy was associated with increased risk of adverse outcomes” like death, myocardial infarction, or stroke, and the PLOS ONE study found “In older men, and in younger men with pre-existing diagnosed heart disease, the risk of [myocardial infarction] following initiation of [testosterone therapy] prescription is substantially increased.”

These results didn’t come entirely out of the blue — for example, a study in 2010 that was supposed to look at the effects of testosterone had to be discontinued when the participants suffered an unusual number of cardiovascular events(4) — but the latest two studies together form the strongest evidence showing a connection between testosterone therapy and cardiovascular events like heart attack and stroke. The situation is not altogether different from Vioxx, the litigation over which also began with a study showing a connection between Vioxx and cardiovascular events. The questions are if, like with Vioxx, future studies will demonstrate that “Low T” therapy causes these conditions and, perhaps, that the drug manufacturer concealed evidence that would have revealed this link sooner.

Let’s back up for a moment. The FDA has approved testosterone therapy to treat a single condition: hypogonadism. The FDA-approved prescribing information describes this as occurring as a result of “testicular failure due to conditions such as cryptorchidism, bilateral torsion, orchitis, vanishing testis syndrome, orchiectomy, Klinefelter’s syndrome, chemotherapy, or toxic damage from alcohol or heavy metals,” or “idiopathic gonadotropin or luteinizing hormone-releasing hormone (LHRH) deficiency or pituitary-hypothalamic injury from tumors, trauma, or radiation.” The FDA did not approve the use of testosterone therapy to treat fatigue, or muscle weakness, or depression, or low libido, or erectile dysfunction, or for “anti-aging” purposes — yet most testosterone therapy prescriptions today are for those conditions, which for most purpose aren’t related to hypogonadism. Some of them are just part of aging.

After about 30 or so, men’s testosterone levels decline as they get older. (A study back in 2012 calculated that athletes’ “peak performance” generally occurred around 26 years old, and that the mean age of world record-setting athletes was 26.1 years.(5)) For some men, this shift can be sublime or even exciting*, but, for most of us, the shift comes too quickly or with severe side effects, and let’s face it: most of us would be more than happy to find the fountain of youth.

That’s where the drug companies saw a chance to make a buck. Although testosterone therapy is only approved to treat hypogonadism (or to be even more specific, hypoandrogenism), doctors are allowed to prescribe virtually any medication for virtually any purpose. There’s nothing wrong with that — doctors and patients need to have room to make their own medical decisions — but the drug companies routinely exploit that situation by engaging “off label” marketing, in which they try to convince doctors to prescribe patients medications for unapproved conditions, or to convince patients (by way of relentless television, Internet, and magazine advertisements) to lobby their doctors for the medication. Off label marketing is illegal, and pharmaceutical companies have paid the federal government billions in penalties for doing it, but they keep doing it anyway, concealing it when they can and then, if they’re caught, writing off the penalties as a cost of business. There’s too much money to be made.

The “Low T” companies have engaged in that sort of off-label marketing in spades, like the website “Is It Low T?”, for the purpose of encouraging men to wrongly believe that a variety of ailments are really the symptoms of low testosterone, and that the ordinary effects of aging can be safely treated with testosterone therapy. E.g., the website asks visitors if they are “sad” or “grumpy,” if they have “a lack of energy,” and if they aren’t as good at sports as they used to be — something that is to of course be expected as a person ages, particularly into their 60s and beyond.

All of that marketing (Abbott Laboratories spends over $80 million annually marketing AndroGel) worked: testosterone therapies are a $4 billion market, well over the size it should be based on the prevalence of the condition the medication was designed to treat. A review of prescribing information on low testosterone therapy found that one third of men on testosterone therapy were diagnosed with “fatigue,” and that one quarter of men on testosterone therapy did not even have their testosterone levels tested before they received a prescription(6).

Now, let’s move to the mixed question of science and law that I used for the title of this post: can we prove in court that testosterone gel causes heart attacks and strokes?

Ideally, we would prove (or disprove) such a causal link with a randomized controlled trial, putting one group of men on testosterone therapy and another on a placebo and then watching for heart attacks and strokes. But we need to be realistic: such a trial would be extraordinarily difficult to construct correctly given the huge number of factors at work, and it might even be dangerous to complete the trial. In many prior examples, like with Vioxx, clinical trials looking for potentially fatal conditions had to be stopped as soon as the initial evidence of a risk became apparent, because it would be unethical to knowingly expose patients to a risky medication.

So let’s start with what we already have. The JAMA study and the PLOS ONE studies are both observational studies, not randomized controlled trials. Medical researchers looked at a bunch of data they already had on patients, performed statistical analysis with the hope of removing any “confounding variables” — e.g., you have to make sure you’re not accidentally comparing heart attacks among obese smokers in their 80s and normal weight non-smokers in their 60s — and then saw the worrying conclusions that have prompted all this attention. These observational studies are a great way to learn about complex medical issues that defy easy analysis; a prominent, and perhaps foreshadowing, example was the Women’s Health Initiative, which identified the potentially fatal risk posed by women’s hormone therapy treatment, particularly as women got older.(7)

As the Executive Editor of Harvard Health notes, “neither was the type of study that can prove cause and effect. They can only show associations, or links. That means there’s no smoking gun here that testosterone therapy is harmful. But the studies do suggest caution.”(8) I disagree. Both as a matter of science and as a matter of law, although observational studies primarily show associations, observational studies can also be enough to show that a drug causes a particular disease — if they are done properly. As the Federal Judicial Center’s Reference Manual on Scientific Evidence says(9):

[O]bservational studies can be very useful. For example, there is strong observational evidence that smoking causes lung cancer. Generally, observational studies provide good evidence in the following circumstances:

• The association is seen in studies with different designs, on different kinds of subjects, and done by different research groups. That reduces the chance that the association is due to a defect in one type of study, a peculiarity in one group of subjects, or the idiosyncrasies of one research group.

• The association holds when effects of confounding variables are taken into account by appropriate methods, for example, comparing smaller groups that are relatively homogeneous with respect to the confounders.

• There is a plausible explanation for the effect of the independent variable; alternative explanations in terms of confounding should be less plausible than the proposed causal link.

In other words, well-done observational studies can be good enough, as long as they’ve approached the subject from different angles, have accounted for other possibilities, and have suggested “a plausible explanation” for the effect.

The JAMA and PLOS ONE studies have already been criticized, but, frankly, the criticisms I’ve seen are just plain wrong, to the point of being irresponsible. Over at Huffington Post, an OB/GYN who sells hormone therapy argues that the studies are “essentially meaningless,” because they didn’t assess testosterone levels “to tell if a patient is a proper candidate for therapy and if they are tolerating the therapy well.”(10) There’s no reason to believe those results would be different, but, the biggest issue is that she missed the point of the study: the point wasn’t to see if a narrow class of “proper” patients were at risk, but whether all patients on testosterone were at risk. Part of the problem with testosterone therapy is that it’s overprescribed, and artificially limiting a study of its risks would be tantamount to willful blindness to the real problem.

That said, the second factor — “effects of confounding variables” — is likely going to be the biggest issue in the testosterone therapy litigation. Heart attacks and strokes aren’t like, say, mesothelioma, which can only be caused by asbestos exposure. As they get older, men are at an increased risk of both, particularly after age 65. Observational studies have shown that there are nine major factors that increase the risk of heart attack in both men and women (11):

  • HDL to LDL cholesterol ratio;
  • current smoking;
  • former smoking;
  • hypertension;
  • diabetes;
  • abdominal obesity;
  • psychosocial (e.g., (depression, locus of control, global stress, financial stress, and life events including marital separation, job loss, family conflict);
  • physical inactivity;
  • very low alcohol intake;
  • high risk diet

If a man had any of those factors, then the drug companies will jump on it and claim that it’s impossible to prove the testosterone therapy increased his risk of suffering a heart attack or stroke.

To which I say: rubbish. We’ve seen those sorts of attacks before by drug companies as a way to avoid responsibility, but this isn’t the place to start explaining how we intend to do that in the litigation, beyond saying those issues are better left for cross-examination at trial. There’s no “smoking gun” here but there’s enough smoke to know there’s a fire, which is why we’re actively pursuing these cases. A company can’t just sit back and reap billions off a false wonder drug while being silent about its potential to kill its users.

 

 

REFERENCES:

(1) “FDA evaluating risk of stroke, heart attack and death with FDA-approved testosterone products,” an FDA Drug Safety Announcement.

(2) “Association of Testosterone Therapy With Mortality, Myocardial Infarction, and Stroke in Men With Low Testosterone Levels” at JAMA Network.

(3) “Increased Risk of Non-Fatal Myocardial Infarction Following Testosterone Therapy Prescription in Men” at PLOS ONE.

(4) “Adverse Events Associated with Testosterone Administration” available at PubMed.

(5) “Exponential growth combined with exponential decline explains lifetime performance evolution in individual and human species” at Springer.

(6) “Trends in Androgen Prescribing in the United States, 2001 to 2011” at JAMA Network.

(7) “The Last Word On Hormone Therapy From the Women’s Health Initiative” at NPR Health News.

(8) “New study adds caution to testosterone therapy for “low T”” at Harvard Health.

(9) Federal Judicial Center’s Reference Manual on Scientific Evidence, at fjc.gov.

(10) “Testosterone Therapy Does Not Cause Heart Attacks” at Huffington Post.

(11) “Risk factors for myocardial infarction in women and men: insights from the INTERHEART study” at European Heart Journal.

* Anyone despairing of getting older should read “My Dear Son” and “The Joy of Old Age.”

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Parr v. Ford And The Real Source Of Junk Science In Rollover Lawsuits

By Max Kennerly, Esq. on January 20, 2014 - No comments

Crashworthiness cases are among the riskiest and most challenging types of personal injury cases. They are time-intensive, enormously expensive (typically costing more than $250,000 in expert fees and other litigation costs), and difficult to win. The car companies have unlimited time and money to put up in their defense, and they ride in on a general wave of anti-plaintiff sentiment (encouraged by lobbying and public relations groups that they fund) and tricky legal doctrine. Like most product liability cases, the cases are not to be pursued lightly.

Last week, the Pennsylvania Superior Court released a new opinion in the case of Parr v. Ford, a case against Ford alleging that the 2001 Excursion was defectively designed. Here’s the opinion, and here’s the dissent. There are procedural problems with the opinion itself that make me wonder if the court might withdraw it (or the Supreme Court might reverse it solely on procedural issues), but let us look at the details of the opinion itself, because they tell us a lot about how automobile defect cases can go wrong.

The Parr family, all of whom wore seatbelts, were driving safely in their 2001 Excursion when a van ran through a stop sign and hit the Parrs’ SUV, causing it to spin around, hit a guardrail, and then roll down a 19 foot embankment. When the Excursion rolled over, the roof collapsed on the passenger’s side. The two children on the driver’s side sustained minor injuries, while the two children on the passenger’s side sustained extraordinary injuries: one had “a fractured skull, broken collarbone, fractured eye orbital, a lacerated liver, and facial lacerations,” and the other suffered a catastrophic spinal cord injury, rendering them a quadriplegic.

This a common rollover and “roof crush” case, the type of preventable harm that plaintiffs’ lawyers like me have been shouting about for decades, ever since the Ford Explorer was first sold in the 1990s. SUVs need extra measures taken to reduce the risk of rollover and to protect passengers in a rollover. You do not have to take my word for it, just read the first page on the Insurance Institute for Highway Safety’s website about rollovers:

Electronic stability control makes a vehicle less likely to roll over. ESC helps prevent the sideways skidding and loss of control that can lead to rollovers. It reduces the risk of fatal single-vehicle rollovers by more than 70 percent. As of the 2012 model year, all passenger vehicles must have the technology.

Strong roofs protect occupants in a rollover crash. Stronger roofs reduce the risk of a fatal or incapacitating injury when a vehicle rolls over, in part because stronger roofs reduce the chance of being ejected from a rolling vehicle. Even with standard ESC on all new vehicles, some rollovers will still occur, so it’s important to have a strong roof.

Indeed. As an IIHS study in 2005 noted, “The Ford Excursion is a very large SUV with a high rollover death rate. This is at least in part because its occupancy rate tends to be high, which raises its center of gravity even higher.” The Excursion has a curb weight of over 7,200 lbs. It needs roof support.

In my humble opinion, there is no question that the 2001 Ford Excursion (like a lot of a sport utility vehicles from that era) could have been, and should have been, built much better. Ford and its lawyers recognize that juries will understand the inherent problems with the vehicle, and so Ford tends to defend these cases by focusing all their efforts on the claim that, even if the roof had been reinforced, the passengers would have been injured just the same.

This theory, sometimes called “diving” or “torso augmentation,” is pure rubbish. The claim is that, in a rollover accident, the occupants’ necks and spines are broken by their own body weight, rather than by the several ton vehicle that crumples around them, with the roof crushing them into their seat.

In theory, it’s possible for people to break their neck in a fall, like Christopher Reeve did — but a fall off a horse has nothing to do with the biomechanics of a rollover. There is no point at which an occupant in a rollover could fall at the speed and angle necessary to break their neck, and, if they are wearing a seatbelt, then there is no chance at all for them to fall like that. A spinal cord injury injury in a rollover has to result from the roof crushing in, pinning their head, neck, and torso into a certain positions and then applying a strong force to it.

The National Highway Traffic Safety Administration spent years looking at this exact issue. Despite intense lobbying by car manufacturers (who made the disingenuous claim that roof crush has nothing whatsoever to do with rollover injuries), NHTSA eventually concluded in 2009 “there are logical reasons to believe that a collapsing roof that strikes an occupant’s head at the nearly instantaneous impact velocity experienced when structures deform might cause serious injury,” and that rollover statistics showed a close relationship between the degree of roof deformation/intrusion and the severity of injury (or the likelihood of a fatality). NHTSA thus rejected the “diving” theory when it came to establishing federal standards for roof reinforcement.

Now, let’s talk about the Parr case. There’s a lot in the case, too much for one blog post, but I want to talk about it in a more general sense first. Much is made of trial judges being the “gatekeeper” for what a jury may see. There are plenty of things a jury should not see, like settlement offers among the parties, but, by and large, it is the jury’s role to determine the facts, and so they should see everything that’s relevant to the case. Critically, they should see all the science and engineering. Most objections made about the admissibility of scientific evidence (under either Daubert or Frye) are usually just complaints about the weight that the jury should give it; those are thus issues for the jury, not the judge.

For all the complaints about “junk science” made by companies like Ford, and by organizations that Ford supports, there is no disputing that Ford was the one trying to bring “junk science” into the courtroom. As far as I can tell, the “diving” theory of neck injuries in rollovers is not believed by anyone who isn’t paid by the car companies.

The plaintiffs moved to keep that theory out of the case completely, but I must say that I see the trial court’s point on that: the theory, while dubious and largely not accepted in the engineering community, isn’t wholly frivolous, and arguably qualified experts are making the argument. So I say let them make it, and the jury will see it for what it is.

Yet, the problem with the Parr case is that the door didn’t swing both ways. Although Ford was allowed to present this dubious theory, the trial court precluded the plaintiffs from showing the jury the extensive documentation and studies from NHTSA refuting the “diving” theory. Ford got to have its cake and eat it too: it was allowed to present a bad theory in its defense while also being allowed to keep out much of the evidence refuting that theory. The jury should have been allowed to hear just how dubious this theory was, and in what low regard it was held in the automotive engineering community and by NHTSA.

Similarly, remember that IIHS study I referenced? That data, and data from National Center for Statistics and Analysis, Fatality Analysis Reporting System (“FARS”), and the National Automotive Sampling System (“NASS”) concerning rollover fatalities involving Ford Excursions and other “comparable” vehicles show that the Ford Excursions had rollover driver and occupant death rates higher than comparable “large” and “extra-large” sport utility vehicles. The jury heard none of that.

I don’t know what will happen with the Parr opinion; it seems likely to be reversed for one reason or another. But it is a stark reminder of how difficult crashworthiness cases are, and of how difficult it is to take on a large corporation. It’s also a reminder of the extraordinary challenges facing a plaintiff trying to get into the courtroom good scientific evidence, even in a venue like Philadelphia County — which Ford and its lobbying organizations have claimed for years is unfair to them.

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Darrin Manning And The Kinder, Gentler Philadelphia Police Department

By Max Kennerly, Esq. on January 16, 2014 - No comments

Philadelphia’s Police Department has come a long way since the days of Frank Rizzo or and the MOVE fire bombing, but perhaps not far enough. As The Inquirer reports:

Darrin Manning, 16, says his mind was on the game when he got off the subway at the corner of Broad Street and Girard Avenue with a dozen teammates in uniform and suddenly found himself in handcuffs.

Manning admits that one of his teammates may have said something smart to the cop they had noticed staring them down. So when the cop approached, they ran. Scared, Manning ran a little, too. But then he stopped.

Manning says he was roughed up, placed in handcuffs that the officer hit him with and that during a pat-down, a female officer pulled his genitals so hard one of his testicles ruptured.

Unsurprisingly, the police report claims the straight-A student with no disciplinary history was wearing a ski mask and that he hit the police three times before he was subdued, although the report also says “No injuries sustained to police.” Funny how that works: the suspect starts the fight and lands all the punches, but he ends up in emergency surgery and the police officer doesn’t have any injuries at all. The old “he fell” excuse for a black eye story comes to mind — I saw that in a police report (from another state) just yesterday, only the individual didn’t have a black eye, he lost it entirely.

This wasn’t how 2014 was supposed to start for the Philadelphia Police Department. On January 1, the Department adopted sweeping reforms for interrogations, including the mandatory videotaping of interrogations by the Homicide Unit, something that has been standard across the country for years. To their credit, the Department worked with the American Civil Liberties Union and the Pennsylvania Innocence Project to develop real, genuine policies that would prevent concerns (and abuses) that arose in the past. (Side note: if you’re looking for a charity to give to this year, why not the Pennsylvania Innocence Project? I know their director well, she’s phenomenal, and just last year they brought an innocent man home after 15 years in prison.)

But the Manning incident puts the harsh reality of police interactions in Philadelphia back into the spotlight. It’s easy for people who spend all their time in the suburbs and never go near Broad Street and Girard Avenue (I drive by there often; come April, there will be a man in a Statue of Liberty costume trying to get people to do their taxes at a local accounting office) to ask why a 16 year was running from the police, but two truths are undeniable: (1) he’s 16, and 16 year olds are famously non-compliant and (2) he didn’t do anything wrong.

We’ve come so far in accepting a de facto police state, in which cops can stop you and search you for any reason and the government can read all of your email without a warrant, that we often don’t stop to what we expect out of our Constitution anyway. Darrin had every right to be where he was and, yes, every right to run away — the officer had no reason to believe he was committing a crime, not even if he was wearing a ski mask while running (something all runners do when it gets cold enough — and it was a low of 4 °F that day, setting a new record), and no reason to stop him, and certainly no reason to search them. “Probable cause” means you can’t be violently searched and hurt without an officer at least having some reason to believe you committed a crime, and some reason to use the force to restrain you.

I’d blame the Philadelphia Police Department, but I think that would leave one of the responsible parties off the hook: the United States Supreme Court. There are plenty of good officers on the force who always try to do right, and some bad officers who don’t care, but in the end, good or bad, of them are given their limitations by the Supreme Court. Unfortunately, the Supreme Court has, over the past generation, taken such a dismal view of civil rights that it’s little wonder police officers don’t take them seriously.

For example, if a prosecutor hides exculpatory evidence and leaves a man wrongfully in jail for 18 years, that’s okay. Each and every day, federal courts across the country apply Supreme Court precedent to dismiss civil rights lawsuits, and even more so since the Iqbal decision in 2009. I’m a member of the National Police Accountability Project, and we have an internal email listserv, and it can be at times downright depressing to see the types of situations that members talk about, and the way courts sometimes handle them. We can and should do better.

Darrin Manning deserved better, he deserved to have his constitutional rights respected. While we should certainly criticize the Philadelphia police for violating those rights, and for the excessive force used in violating those rights, let’s not forget why they feel like they have so much leeway in the first place.

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Do Some Diabetes Drugs Shorten, Rather Than Extend, Lives?

By Max Kennerly, Esq. on December 27, 2013 - No comments

As part of the pancreatic cancer litigation that has been taking up a lot of my time, I’ve spent a lot of my time lately thinking about diabetes in general. Diabetics know all too well the merry-go-round they can end up on as doctors switch them from one medication to another in search of perfect control of their blood sugar levels.

That’s the only reason any of my clients ended up on Januvia, Victoza, Byetta or the like. No one truly needed one of those three drugs in the same way that, say, a person having a stroke needs a blood clot buster or a person at risk for heart attacks needs aspirin. Rather, those drugs just seemed to be the best fit for the patient; our concern in the litigation is that the drug manufacturers never warned patients about the true risk of the drugs, i.e., the increased risk of pancreatic cancer.

But maybe we’ve all been thinking about diabetes itself in the wrong way. A new study in the British Medical Journal, “Comparative effectiveness of exercise and drug interventions on mortality outcomes: metaepidemiological study,” reported widely (including by Philadelphia Magazine) found that, in patients with heart disease and diabetes, exercise did just as well as medication in extending patients’ lives. Similarly, despite all kinds of hype, it remains unproven that moderate fluctuations in glucose / blood sugar levels — or even sustained moderate elevations — cause much long-term damage in the end.

In short, there’s no magical number that patients need to reach to avoid long-term harm, even death. Outside of severe cases, diabetes management is more about a happy, productive lifestyle than it is about extending life or preventing diseases.

Which brings into sharp focus the true horror of the pancreatic litigation: most people really, truly don’t need these drugs to be healthy. They need better support for diet and exercise routines, and the use of these drugs on the whole shortens their lives, rather than extending them.

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Why You Shouldn’t Hire A “Cheaper” Lawyer For The DePuy Settlement

By The Beasley Firm on November 28, 2013 - No comments

Two weeks ago, a tentative settlement agreement was announced in the litigation over the defective DePuy ASR hip implants. The official website is here.

It’s a claims process (like what was used to resolve the Vioxx and BP Oil Spill cases). The terms are rather convoluted — for the full details, read this PDF of the formal agreement itself and start at page 34 — but the end result is that most patients who had an ASR hip implant which was then replaced anywhere between 180 days and 5 years after implantation will start with a “base award” of $250,000, which will then be adjusted upwards or downwards based on a variety of individual factors.

I’d go into more details in this post but, really, you shouldn’t be looking around online for this information, you should be talking to your lawyer about it. And that’s where I want to focus this post: on the relationship between ASR claimants and their lawyer.

As The New York Times reported, not everyone is happy with the settlement:

Patients injured by a flawed hip implant sold by Johnson & Johnson have directed their anger at myriad places over the years. The regulatory system that allowed the product’s sale. The company that repeatedly denied problems with the device. Even the doctors who implanted the hips. Now, some patients have found a new target for their ire: the legal system and the lawyers they hired to sue Johnson & Johnson.

Some patients like Van Fleming, a retired mortgage loan officer, wonder why they bothered to hire a lawyer. After published reports of A.S.R.-related problems began to appear several years ago, lawyers flooded television stations and the Internet with solicitations seeking clients.

Mr. Fleming, 66, said he believed his lawyer spent about $400 on filing fees and from $2,000 to $3,000 to get copies of his medical records. Lawyers like Mr. Fleming’s who were not involved in settlement talks could walk away with $90,000 a case, and some firms, by advertising aggressively, gathered hundreds of claims.

“I don’t think it is fair at all,” said Mr. Fleming, who lives in Greenville, N.C., referring to the terms of the deal.

I get where he’s coming from. The settlement strikes me personally as too low, given what I’ve seen my clients go through. But we need to be realistic here: the alternative to this settlement isn’t the same claims process with bigger numbers, it’s years of continued litigation and uncertainty before a trial is even scheduled. A bird in the hand is better than two in the bush.

Mass torts cases have sometimes been described as “Goliath vs. Goliath,” given the considerable investments of time and resources that plaintiff’s lawyers invest in them. But that’s a misleading description: truth is, mass torts cases like the defective hip recalls only end when the defendant corporation gets tired of them and wants to pay to end it. If Johnson & Johnson wanted to keep fighting these cases for the next couple decades, they could. That’s what has happened in asbestos since the 1980s. That’s what Roche Pharmaceuticals has done with the Accutane cases. That’s what the transvaginal mesh companies are doing. It’s not like the plaintiff’s lawyers are cutting and running; the plaintiff’s lawyers have negotiated the best they can get out of Johnson & Johnson and DePuy at this point, and have taken it to the clients for their approval.

To the claim that only lawyers “involved in the settlement talks” should be able to recover anything, I say this: Johnson & Johnson wouldn’t have even sat down at the table if it wasn’t for the hundreds of firms across the country putting their time and money on the line to review, prepare, file, and pursue these cases. There is strength in numbers; this settlement is only here at all because all these cases were filed and properly put together by the firms that weren’t involved in the settlement talks.

But the real purpose of this post is to address a disturbing trend has emerged since the settlement was announced: some law firms have tried to swoop in and pick up other law firm’s clients by offering them a “deal” with a lower contingent fee. Let me tell you in no uncertain terms: that is unethical for the “new” firm to offer, and it’s not going to work for the client or the new law firm.

As a general matter, lawyers are entitled to quantum meruit — latin for “the amount they are owed” — for the work they do on a case. If a lawyer represents an injured client for 5 years, invests tens of thousands of dollars in the case, negotiates a settlement offer, and then the client fires them and takes the offer, the lawyer is still entitled to be paid for all the work they did.

The same principle applies here: firing the lawyer you’ve had for years to bring on a “cheaper” one isn’t going to mean you owe the original lawyer less, it just means you’ll also owe the new lawyer something, and the original lawyer will send a “lien” to DePuy to make them escrow the amount due as their fee until a court decides it. (Additional, the ASR settlement agreement itself, consistent with quantum meruit, deems claimants who had a lawyer and then fired it for the settlement to be “unrepresented,” which means they won’t be entitled to as much in the settlement.)

Short story is: you can always fire your lawyer for any reason or no reason at all, but you’ll have to pay them for what they did. Don’t try to score a deal here by going for a “cheaper” lawyer — in the end, you’ll still owe your prior lawyer, but you’ll also owe the new lawyer.

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The Appalling State Of Inadequate Prison Medical Care in America

By Max Kennerly, Esq. on October 14, 2013 - No comments

The Russian novelist Fyodor Dostoevsky wrote, “You can judge a society by how well it treats its prisoners.” We are not doing well by that measure, given the way in which we treat prisoners and detainees with serious medical conditions.

 

Like many prominent trial law firms, we received enough calls from people that we can sometimes detect trends in certain types of injuries in the population. Over the past year or so, we have noticed a disturbing rise in the number of calls we get relating to the denial of medical care while a person is in a correctional facility. These sorts of claims are nothing new — the chief Supreme Court case, Estelle v. Gamble, dates back to 1976 — but over the past year the problem seems to have gotten much worse. The conditions ignored by the prison officials, including licensed nurses and doctors who should know better, have become much more severe, and the delay prior to treatment have become much longer.

 

The calls to us used to revolve around prison nurses not following up on chronic conditions as frequently as they should, but now we see nurses and doctors deliberately ignoring signs and symptoms of heart attack, stroke, detached retinas, appendicitis, melanoma, and other conditions that can swiftly cause permanent injuries like blindness, organ failure, and even death. Prison officials always have an easy “out” when they fail to address a pre-trial detainee’s or prisoner’s complaints of severe pain —the prison officials will always say they thought the prisoner was just seeking pain medications — but the same isn’t true when a prisoner has high fever, discolored vomit, and other signs and symptoms that simply cannot be faked or which wouldn’t even be treated with opioid pain medication.

 

A recent article and video series put together by The Nation magazine reveals that this is a problem across the country. Their series goes a bit broader than medical care in correctional facilities, extending all the way to the various for-profit entities that not only make billions off of their government contracts (often by ripping off prisoners and their families), but which then turn around and lobby for increasingly Draconian criminal and penal laws that will grow their “customer” base.

 

One part of their series, however, jumped out at me in particular:

 

The human cost of prison profiteering is especially pronounced and disturbing in the video about Corizon, the largest prison healthcare company in the country. … Medical neglect runs rampant in prisons across the country, a largely invisible problem that has few in positions of power scrambling for a meaningful solution. The problem is not unique to states that have outsourced their prison healthcare: In California, the crisis of overcrowding in state facilities, merged with catastrophically inadequate state-provided care, was the basis for a 2011 Supreme Court decision ordering the state to release tens of thousands of prisoners. In September, the state paid $585,000 to a man who lost an eye while locked up on a parole violation in 2008. He had repeatedly requested medication for his glaucoma, but was ignored. Eventually, his cornea burst.

But in those states that have turned to private companies to provide medical care to prisoners, stories of neglect and abuse also abound. In 2005, The New York Times published a shocking investigation into Prison Health Services, a company responsible for two prisoner deaths in separate jails in upstate New York within two months of one another. In both cases, the inmates had been repeatedly denied medication and accused of faking their distress. The Times also told the story of 46-year-old Diane Nelson, who died of a heart attack in a Florida jail. “Stop the theatrics,” a Prison Health nurse snapped at her as she collapsed. “That same nurse, in a deposition, also admitted that she had joked to the jail staff, ‘We save money because we skip the ambulance and bring them right to the morgue.’”

 

This is the same problem we see in nursing homes. When you put a for-profit company in charge of other people’s medical care, rather than a non-profit hospital with a long-standing tradition of adhering to medical ethics, and then you pay them on a per-patient basis, you give them an incentive to take on as many patients as possible, and then provide as little care as it can get away with. That’s exactly what we’re seeing in both nursing homes and now, increasingly, persons, with for-profit companies and sometimes local county agencies ignoring obvious signs and symptoms of severe, life-threatening medical conditions because they don’t want to hurt their bottom line by actually providing medical treatment.

 

Pre-trial detainees and prisoners don’t have a right to quality medical care, but they do have a right to be free from cruel and unusual punishment, and the federal courts have held that “deliberate indifference” to a medical condition is a form of cruel and unusual punishment. As one Court here in the Eastern District of Pennsylvania recently described:

 

Although mere “inadequacy or impropriety of the care . . . will not support an Eighth Amendment claim,” id. (quoting Roach v. Kligman, 412 F. Supp. 521, 525 (E.D. Pa. 1976)), “[p]rison officials may not entirely insulate themselves from liability under § 1983 simply by providing some measure of treatment,” Jones v. Muskegon Cnty., 625 F.3d 935, 944-45 (6th Cir. 2010) (quoting McCarthy v. Place, 313 Fed. App’x 810, 814 (6th Cir. 2008)). Gross negligence will support a deliberate-indifference claim, even without a showing of purpose or knowledge. See Reed v. Cameron, 380 F. App’x 160, 162 (3d Cir. 2010) (“Grossly negligent behavior can also constitute deliberate indifference, as can a doctor’s choice to take an ‘easier and less efficacious course of treatment’ in response to a serious medical need.” (quoting Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987))).

 

In other words, a prison can’t pretend to provide medical care and thereby avoid a civil rights lawsuit over the consequences. Turning a blind eye is still turning a blind eye.

 

Like I wrote above, the situation can only be described as a disgrace, and the continuation of it is inexcusable. But I must admit I don’t see any viable solution at the moment. Relief has to come from the federal level, given the enormous lobbying power of these for-profit prison-industrial complex companies and the strong financial incentives budget-strapped counties and municipalities have to withhold medical care, but our Congress can’t even get its act together enough to pay for emergency weather meteorologists and food safety inspectors.

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All About Side Impact Lawsuits: From Airbag Non-Deployment To Crashworthiness

By Max Kennerly, Esq. on August 11, 2013 - No comments

I always have a mixture of cases going on at the time, and lately I’ve been spending a lot of time on automobile crashworthiness cases, including both structural integrity cases and airbag cases. The work reminded me to get back to a subject I’ve been meaning to write about for a while: the ins-and-outs of side-impact lawsuits against car manufacturers.

About one-third of occupant deaths occur in side impacts. These days, most cars have decent anti-intrusion measures (more on that in a minute), so much of this litigation now focuses on failures of side-impact airbags, and I’ll spend most time on those. They’ve been standard in the automotive industry since the early 2000s, and they go a long way towards reducing those deaths and serious injuries, particularly brain injuries, by protecting occupants’ heads from striking the windows or the pillars — so long as they actually work when needed.

 

The Basics of Crashworthiness, Intrusions, And “The Second And Third Collision”

To understand these side impact cases, we first need to cover some essentials. “Crashworthiness” refers to the ability of a vehicle to protect its occupants in the event of a crash. The NHTSA has a whole section of its website devoted to the issue.

Car manufacturers can be held liable where they used an inferior design despite the availability of safer, practical alternatives that would have better protected the injured person. Perhaps the most well-known crashworthiness lawsuits relate to SUV rollovers: those cases aren’t just a matter of the SUVs being unreasonably prone to rolling over, they also implicate the failure of the SUV to withstand the forces at work in a rollover. The technical term is “roof crush,” which is what happens if the pillars (the parts that hold up the roof, often called the A, B, and C pillars) and the window glass (which itself helps support the roof) aren’t strong enough to hold up the roof when the car is rolling or upside down. (See this report from Public Citizen for more on roof crush.)

You can see the benefits of 50 years of crashworthiness improvements — like airbags, 3-point seatbelts, and better structural integrity for the passenger compartment — in this amazing video produced for the 50-year anniversary of the Insurance Institute for Highway Safety, in which they crashed a 1959 Chevrolet Bel Air into a 2009 Chevrolet Malibu:

That particular crash is called a “moderate overlap frontal test,” which is specific to the IIHS, but not yet required under the federal NHTSA standards.

We’re off-topic here — this post is about side-impacts, and the video is a frontal impact — but it’s important to know all of that background to understand what else is going on in a car during an accident, and thus to understand what improvements like side airbags do in addition, and thus why they’re important.

In the video above, notice a critical difference between the 1959 Chevy and the 2009 Chevy: the 2009 model crumples around the occupant space, whereas the 1959 crumples into the occupant space. That’s referred to as “intrusion.” Anti-intrusion measures, like door bars and safety cages and other innovations developed first in racing, are the most important difference between modern cars and classic cars. All the seat belts and airbags in the world aren’t going to go a thing for people if there’s a serious “intrusion” into the passenger compartment.

As you can tell from that video, there was a time when even big, hulking vehicles like a Bel Air would allow significant intrusion in an accident. These days, you would reasonably expect any car made since the mid-1990s — when the bulk of the NHTSA standards were significantly improved — to withstand intrusion in the bulk of automobile accidents at or below a 40 miles-per-hour speed differential.

Assuming intrusion has been limited, the next issue relates to the forces experienced by the passenger, i.e. the acceleration and deceleration they experience, and the objects inside the car they might strike — like, for example, how a driver will impact the steering wheel in a frontal impact.

That impact — when an occupant, still moving with inertia at the speed the car was traveling, hits something in the car — is often called “the second collision.” There’s a “third collision,” too, when a person’s internal organs, particularly their brain, liver, spleen, and heart, keep moving due to their inertia. We’ll come back to those terms; you can read more about them here.

 

How Do We Tell If A Car Is “Unreasonably” Unsafe In A Side Impact Collision?

Car companies are held liable for selling cars that are unreasonably unsafe. But how do we say whether a car is “unreasonably” safe or not?

First, think of how you test a car’s safety in a crash. Over the past few decades, the National Highway Traffic Safety Administration (“NHTSA”) has issued, and improved over time, a variety of Federal Motor Vehicle Safety Standards and Regulations, known as the “FMVSS.” FMVSS 214, found in 49 C.F.R. § 571.214, has for nearly twenty years required car manufacturers simulate side-impact crashes on a particular car model by way of a test dummy seated in a car that is then hit by a “deformable movable barrier” which is supposed to simulate the front end/bumper of the oncoming car. There’s also another test involving a static barrier, and a new test as of 2009 involving a simulation of a car sliding into a pole.

The FMVSS 214 has requirements car manufacturers must meet — i.e., maximum levels of force allowed in certain accidents at a certain speed — but those standards are merely the minimum that a car manufacturer must do to sell the car in the United States. A car manufacturer can’t just barely meet the FMVSS 214 standards and avoid responsibility for preventable injuries, they’re required to use the reasonable design and manufacturing improvements of the day. Not necessarily “state of the art,” a loaded and ambiguous term, but rather the improvements that are reasonable and practical under the circumstances. The FMVSS 214 standards are just one of the ways that we measure how one car stacks up versus another.

The IIHS has its own side impact testing, which you can learn about here:

 

The FMVSS 214 moving barrier test, and the IIHS versions, produce a whole bunch of data about the forces in the crash, with measurements at the ribs, spine, and pelvis, that together form a composite number called the Thoracic Trauma Index (“TTI”). The FMVSS 214 test is phasing in — and the IIHS and car companies have used for years —another set of data for the head specifically that is compiled into the Head Injury Criteria (“HIC”). Together, the data helps us predict the injuries a real person would suffer in the accident; the TTI and HIC numbers are particularly important in figuring out the damage of the “second collision” and “third collision” we discussed above.

 

Mitigating Side Impact Traumatic Brain Injuries, Spinal Cord Injuries, And Deaths With Anti-Intrusion Measures

As I mentioned above, the biggest difference between cars today and cars from fifty years ago in side-impacts are the 3-point seatbelt and the anti-intrusion measures. When we look at a potential side-impact crashworthiness case, the first thing we do is examine the intrusion into the occupant space. There are a whole bunch of engineering improvements that can be used to reduce intrusion, such as:

  • Strengthening the rocker and the floor pan with high-strength steel, rigid-foam, and other improvements to reduce bending and compression
  • Install cross members in the floor pan and roof to add support, like how door bars work with pillars
  • Ensure doors overlap with other structural components, to keep them from intruding inward
  • Use laminated side-window glass, instead of tempered glass, because it can withstand greater forces
  • Use wraparound seats with belts and pre-tensioners on them, to prevent passenger movement in an accident
  • Add energy-absorbing foam in the interior

You can read about some more details here. All of those will help prevent the “first collision” from touching the passenger at all, reduce the forces at work in the “second collision,” and thereby also reduce the forces in the “third collision.”

 

The Types And Purposes Of Side Impact Airbags

Airbags are, of course, one of the great automotive safety innovations of the past fifty years. (Read about their history here.) “Frontal” airbags — the ones that deploy out of the steering wheel to protect the driver or out of the console to protect the front-seat passenger — dramatically reduce the injuries suffered by unbelted persons in a frontal impact, and significantly reduce the injuries suffered by many belted passengers. There’s a whole world of frontal airbag defect cases out there, but let’s put those aside for a separate post and move on to side impact airbags.

Assume a lower-speed case (say, under 50 miles-per-hour speed differential) without too much intrusion into the passenger cabin, one of the core issues becomes the injuries caused by the second collision — and if a side airbag would have reduced them. There are two main types of side airbags: the side torso airbag and the side curtain airbag.

The side torso airbag is very similar to the frontal airbag, with a round or rectangular shape. It inflates right next to your body to prevent you from impacting the door (or the door impacting you) with as much force, and thus it reduces the acceleration / deceleration in the accident, which is what typically causes the injuries.

The side curtain airbag fills up the space between the occupant’s head and the window. That provides two types of benefits: it prevents the occupant’s head from hitting the window (the causes of thousands of traumatic brain injuries every year), and it prevents the occupant from being ejected during an accident, which is common in rollovers, even if the passenger is belted (because the seat belt can fail or the passenger can be twisted out of it by the rolling).

Based on the available research, the side curtain seems to be the more important one by the numbers. Last year, a group of researchers combed through two crash injury databases and found that “occupants in vehicles with a deployed [side-impact airbag] designed to protect the head had a 30% lower risk of head injuries with an Abbreviated Injury Scale score of 2+.” The side torso airbags didn’t seem to help much. The IIHS has reached similar conclusions.

There are two main types of side airbag lawsuits: design defect cases, where the car could have had a side airbag but didn’t, and non-deployment cases, where the airbag failed to go off in a serious accident.

 

The First Theory Of Side Impact Airbag Lawsuits: The Lack Of A Side-Impact Airbag

Side-impact airbags are fairly new, compared to other crashworthiness technologies. The side torso airbags began with Volvo in the mid-1990s, and the side curtain airbags began with BMW (as the “Head Protection System”) in the late 1990s. In 1998, the NHTSA changed one of its safety standard (FMVSS 201, if you’re curious) to properly measure the benefit of side curtain airbags, and after that all the other manufacturers joined in, like Toyota, Honda, Ford, GM, Chrysler, and so on.

As the IIHS’s website shows, by 2001, just under a third of cars, trucks, and SUVs had as standard or optional equipment side-impact airbags that would protect the head. The design was thus clearly feasible, practical, and economically sensible — indeed, by 2004, more than half of all cars had head-only or head-and-torso side-impact airbags standard or available as an option.

Once you reach that point of widespread adoption, it’s hard for car companies to avoid crashworthiness claims, because there’s no good reason to avoid putting them on the car other than to save a couple bucks. Consumers want and expect each car to be similar in crashworthiness as the comparable cars of that price range and function. Indeed, the NHTSA reported in a study that “[Thoracic Trauma Index] improvements, torso bags and head-curtain air bags could have saved an estimated 2,934 lives in calendar year 2003 if every car and LTV [i.e., larger, heavier, taller vehicles] on the road had been equipped with them.”

One such example involves the 2003 Mitsubishi Eclipse. As a federal court recounted, “[w]ithout a [side torso] airbag, the 2003 Eclipse performed worse than its 2003 Chevy and Dodge sister platforms and worse than previous Eclipse models. Only with an airbag did the 2003 Eclipse show safety results closer to that of its sister platforms and its previous Eclipse models.” Aguirre v. Mitsubishi Motors N. Am., Inc., No. 3:11-cv-00225, 2012 U.S. Dist. LEXIS 140834, at *18 (M.D. Tenn. Sept. 28, 2012). In other words, due to the design of the 2003 Eclipse, it somehow did worse than other cars built on the same platform — a defect that could only be remedied by the inclusion of a side-impact airbag, but Mitsubishi only made the side-impact airbag optional, rather than standard.

Make no mistake, though: these “lack of a side-impact airbag” cases are very difficult, given difficulties in proving that the absence of the airbag made the car defective as compared to merely less safe.

 

The Second Theory Of Side Impact Airbag Lawsuits: The Failure Of An Airbag To Deploy

These are the most common cases. In these cases, the car was equipped with a side-impact airbag, but it failed to deploy, typically for one of three main reasons.

First, it could be a simple electrical wiring failure. Most of these failures aren’t like the wire faults you see in homes. Rather, they’re design errors. For example, in many cars, the wiring for the airbag is configured in a way that the wire can be severed before the airbag sensors detect the rapid change in movement, preventing the airbag from ever being trigger. Other times, specialized pieces like the “clock spring,” which is the device that allows the wheel to turn while still maintaining an electrical current, are broken, and there’s no way to tell until an accident occurs. Every couple of months there’s another major manufacturer recalling cars for some sort of wiring problem, often one relating to the wiring in the seat or the door (because those parts move).

Second, it could be an airbag sensor failure. Sometimes, the airbag sensors themselves, which are supposed to detect rapid acceleration or deceleration, are broken. Other times, the sensors work, but the computer programming is defective; e.g., sometimes the airbag control module simply fails to process the data correctly, and sometimes the airbag is set at too high a threshold before deploying. Finally, in many cars, the manufacturer has skimped on costs by not installing enough sensors, so that none of the sensors is able to detect how severe the accident truly is.

Third, sometimes the airbag fails. In these cases, the sensors detected the crash, the control module commanded the airbag to deploy, but the airbag didn’t deploy. These problems are typically caused by some sort of quality control problem at the manufacturer — e.g., something’s wrong with the sodium azide (NaN3) or potassium nitrate (KNO3) in the airbag itself. In 2012, for example, Honda and Acura recalled a variety of models because “An incorrect propellant mixture was prepared when manufacturing the initiator component of the side-curtain airbag inflator.”

 

Summing Up Side-Impact Crashworthiness Lawsuits

All of the above is, of course, a simple overview — the cases themselves are far more complicated. The car companies set aside millions of dollars to defend these cases, coordinate with one another and exchange information, and have hundreds of engineers on speed-dial ready and willing to say anything to help them.

These cases are also enormously expensive. I’ve never seen a crashworthiness case pursued where the plaintiff’s lawyer spent less than $150,000. Usually, it’s more like $250,000 or more — and you might end up losing before trial, at trial, or on appeal, after investing all that money and thousands of hours of attorney time. As a consequence, these cases typically aren’t worth pursuing unless the plaintiff suffered severe, permanent injuries or death. Anything less than a traumatic brain injury or spinal cord injury is unlikely to produce the sort of settlement or damages award that will make the case worth the injured person’s time and the lawyer’s investment.

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Dion Rassias Wins 1.2 Million Verdict in Automobile Accident Case

By The Beasley Firm on July 23, 2013 - No comments

Beasley Firm partner Dion Rassias obtained a $1.2 million verdict from a unanimous 12-member jury in Delaware last week as a result of an automobile accident that occurred in Sussex County, Delaware.  What makes the verdict so unique is that there were no boardable specials for any past or future wage loss and no past or future boardable specials related to medical treatment.

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