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Philadelphia Injury and Malpractice Attorneys – The Beasley Firm

Heidi Villari Wins $8M Award for Helicopter Crash Victim

By The Beasley Firm on August 15, 2014 - No comments

A Luzerne County Judge awarded $8 Million+ costs for the victim of a helicopter crash caused by a distracted driver in a damages hearing handled by attorney Heidi Villari of The Beasley Firm. The helicopter had been operated for a charity golf event for crippled children. Unfortunately, the helicopter pilot was operating the helicopter 200 ft. above ground at an unsafe speed, and nose-dived simultaneously. This caused a crash to the ground and  plaintiff was partially ejected out of the seat.  He never lost consciousness, and recounted the accident, multiple surgeries and lengthy stays in rehabilitation to the Court.

Joseph Matteo the plaintiff, age 69 at the time of the crash, who was solicited to drop golf balls onto a golf course as a belted passenger suffered from incomplete paraplegia, neurogenic bladder and bowel, nerve pain as a result of the accident. While he could move his legs, stand and walk with a walker, he is not able to walk about freely. Mr. Matteo, who lives alone, testified that his life had become “a living hell” not only because he had become wheelchair-bound but because of the unbearable pain he endures from nerve damage.

Since 1958, The Beasley Firm has fought for the rights of victims of aviation accidents across the country. To date, we have obtained over $2 billion in awards for our clients. If you or a loved one has been injured or suffers from nerve damage and/or spinal injury as as result of an accident, contact us for a free consultation by filling out our online contact form or by phone at (888) 823-5291.

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Another Myth About Premature Labor and Delivery Malpractice

By Max Kennerly, Esq. on July 12, 2014 - 1 comment

I read a lot of medical blogs, including the blog at Emergency Physicians Monthly authored by a pseudonymous ER doctor who goes by the name “WhiteCoat.” WhiteCoat recently complained about a $14.5 million malpractice verdict in favor of a baby born at 24 weeks with severe disabilities. WhiteCoat thinks the case was a “no win” situation in which the doctor would have been blamed either way.

Preterm labor is an issue near and dear to my heart: I’ve represented birth injury victims for years, and my twins were born extremely premature (26 weeks). From what we can tell about the case from the newspaper article, it’s simply malpractice.

The case arises from a birth back in 2003. According to an article at Cleveland.com, the mother went into labor three times during the 22nd and 23rd weeks of her pregnancy, and each time it was stopped with medication* and bedrest, and she was discharged. According to the article:

On April 10, Stewart’s water broke and she was admitted to the hospital at 12:30 p.m. She and her doctor had discussed that she should get another caesarian section [like with her last child].

Although she asked to deliver her baby soon after she was admitted, the nurse and residents on call did not agree, Pantages said.

When Weight, the attending obstetrician,  arrived at 5:30 p.m., she asked to have the baby delivered, but he said monitors showed the baby was healthy.

The baby later showed signs of distress and Stewart had an emergency caesarian section at 9 p.m. Alijah had a massive brain hemorrhage, and evidence showed it occurred after 5:30 p.m., Pantages said.

The child, now 11 years old, still suffers from “cerebral palsy, cognitive delays, visual impairments and other issues that will require lifelong care.”

From those facts alone, I can see three potential avenues for a malpractice case:

  1. The doctors wrongly discharged her previously, and should have kept her in the hospital to monitor the baby’s health and attempt to prevent preterm labor or premature rupture of members (like with the medications above, or with a cerclage, if she was showing signs of cervical insufficiency or cervical funneling).
  2. The doctors failed to timely diagnose the potential for preterm labor and failed to administer steroids (i.e., “antenatal corticosteroids” like betamethasone), which have been produce to reduce the likelihood of premature birth complications.
  3. The doctors failed to recognize fetal distress prior to 9pm, and thus failed to perform an emergency c-section as soon as they should have.

Based on the article, it seems the case focused on #1 and #3, because #2 wasn’t mentioned. Maybe it came up at the trial.

WhiteCoat complains most about the mother’s request for a c-section, arguing that she’s not a doctor, and so her views are irrelevant. Indeed, she’s not a doctor, and thus not the expert on the standard of care. Her lawyers would have their own expert witness to testify about that. But that’s beside the point: the reason that evidence came into the case was to show the jury the whole context, and to respond to the hospital’s arguments about what she would have done if they had offered her a c-section.

Moreover, the bigger picture of the case isn’t about what the mother did, or did not, say. It’s about whether the baby showed signs of fetal distress and the doctors missed it. If so, then a 24 weeker spent up to 9 hours in distress before the c-section was performed, time in which they would have suffered profound — and preventable — injuries.

WhiteCoat is correct that extremely premature babies are at a high risk of numerous disabilities, including cerebral palsy, intraventricular hemorrhage, periventricular leukomalacia, and many of the other complications experienced by the child, but those complications by no means guaranteed. There are plenty of perfectly healthy former 24-week-preemies living full, productive, active, healthy lives, no different from anyone else. Then there are a tragic number of babies born at much later gestations that suffered complications which could have been prevented by better management of the pregnancy (such as to discover low amniotic fluid levels, or growth restriction, or the like), by the administration of steroids, or by an emergent c-section rather than a prolonged delivery.

The question is what those fetal strips showed. If they showed distress, then it was negligent to not perform an emergency c-section. Period. In short, it’s not a “no-win” case for the doctor. If they had properly diagnosed the distress and performed a c-section, the kid would be better off and no one would be liable for anything.

 

* I assume the medication was terbutaline, which was commonly used back then in an effort to stop preterm labor. In 2011, the FDA put out an alert recommending against its use.

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Jim Beasley, Jr. Hired to Investigate Selinsgrove Plane Crash

By The Beasley Firm on June 27, 2014 - No comments

Two Union County men who were injured in an October 4th, 2013 plane crash have hired aviation accident attorney Jim Beasley, Jr. to investigate the incident. Doug Cromley, of Lewisburg, and his uncle Todd Cromley, of Windsor, sustained serious injuries after crashing their single engine Piper-Pacer on takeoff at Penn Valley Airport.

An eyewitness reported seeing the plane’s nose drop when it reached about 125 feet before crashing back on the runway, damaging the wings and fuselage.

A preliminary report released a month after the accident by the NTSB stated that the plane was taking off for the first time since receiving maintenance from Heritage Aviation, who operate at Penn Valley Airport. The full report by the NTSB is expected within the year.

The Beasley Firm has over 50 years of experience investigating and litigating on behalf of pilots or passengers who have been catastrophically injured or killed in aviation accidents. Jim Beasley, the founder of this firm, was also an experienced pilot, who obtained a twenty-nine million dollar verdict against an airplane manufacturer after he proved that a defective airplane part was the cause of a fatal crash. His passion for aeronautics lives on with his son, Jim Beasley, Jr., who flies vintage planes in air shows around the world. Beasley and his team know the inner workings of an airplane and what can go wrong, and have obtained millions of dollars in compensation for their clients.

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The Tracy Morgan Truck Accident Might End Up Saving Lives

By Max Kennerly, Esq. on June 8, 2014 - No comments

Update: Mr. Morgan and two of his traveling companions have filed a complaint against Walmart. Here’s the most important parts:

68. Wal-Mart knew, or should have known, that Mr. Roper was awake for more than 24 consecutive hours immediately before the subject accident on June 7, 2014.

69. Wal-Mart knew or should have known that it was unreasonable for Mr. Roper to commute more than 700 miles from his home in Jonesboro, Georgia to work at a Wal-Mart facility in Smyrna, Delaware, especially immediately before he was to commence a long shift operating a truck that weighed approximately 30–40 tons. Additionally, there were many Wal-Mart distribution facilities closer to Mr. Roper’s home — including at least nine in Georgia alone—which would have significantly reduced Mr. Roper’s commute to work.

70. As a result of Mr. Roper’s fatigue, he fell asleep behind the wheel of his truck while he was driving, failed to slow down for traffic ahead, and resultantly collided with the Limo directly in front of him in which Plaintiffs were passengers.

That’s consistent with what I wrote right after the accident: many of these truck accidents are caused by the company compelling drivers to keep driving even when they haven’t slept enough. These allegations are interesting as well:

71. Further, the Truck being operated by Mr. Roper was state-of-the-art, and equipped with sophisticated collision-avoidance systems all designed to begin automatically braking the truck when it senses slowing down traffic.

72. However, the Truck did not automatically brake before the accident, and thus, Wal-Mart knew or should have known that one of the truck’s most important safety features was compromised.

The truck’s “black box” data recorder should be able to tell us a lot about what really happened in terms of the automatic braking, but I doubt anyone would have access to it yet other than the NTSB, which typically retains it until they have completed their investigation.

Walmart has responded with typical corporate doublespeak, promising to do “the right thing,” at least to the extent the law forces them to do so.

 

Here’s my original post:

 

Yesterday, comedian Tracy Morgan was involved in a horrible accident on the New Jersey Turnpike near Cranbury Township that killed one member of his group, seriously injured another two members, and left Morgan in the ICU.

It seems the group was riding back to New Jersey from Delaware in a passenger bus when traffic slowed — a common occurrence on the turnpike, even at 1am — and a Wal-Mart tractor-trailer failed to notice the slowed traffic, then, at the last second, swerved, but still ended up hitting Morgan’s bus from behind. That sent the bus into other vehicles, and it ended up on its side. (I’ve seen a lot of reports calling it a “limousine” bus, which may be technically true, but it doesn’t seem the vehicle was modified, it was just a normal Mercedes-Benz “Sprinter” passenger van.)

The circumstances of the accident are depressingly commonplace.

Let’s start with the time of the accident: 1am. According to the Insurance Institute for Highway Safety, although the evening rush hours (5pm to 7pm) has the highest total number of fatalities, the hours from midnight to 3am actually have the highest fatal accident rate per number of people on the road.

There are a couple reasons why. First, it’s dark — even with streetlights, it’s darker than in the earlier hours in the night, because businesses tend to be closed and, with fewer cars, there are fewer headlights. I’ve driven that stretch of the NJ Turnpike innumerable times late at night, and it can get really dark, more like a rural highway than the type of driving you would expect between New York City and Philadelphia. The absence of scenery can cause drivers to acclimate to the speed, lulling them into complacency. 70 mph doesn’t feel that fast when all you can see are the road signs ‘slowly’ rolling by.

Second, late into the night, more people are intoxicated, and more people are very intoxicated.

Third, people are just plain tired at that time of day, which causes “drowsy driving” and bursts of “microsleep.” Other than the obvious problems — a drowsy driver is less likely to perceive problems, to react in time, to make the right choice under pressure — there’s also the more subtle problem of how even people who are not at fault in the accident make mistakes. People are are less likely to wear their seatbelt at night, in part because they’re more likely to forget it. (This is part of why it’s good to teach children to put on belts habitually, and to do the same yourself, even just to drive across a parking lot, so that it feels abnormal to be in a car without a belt.)

Then there’s the involvement of the tractor-trailer. A couple years back, the Federal Motor Carrier Safety Administration (FMCSA) and the National Highway Traffic Safety Administration (NHTSA) conducted the Large Truck Crash Causation Study (LTCCS), a collection of data on 1,000 large truck crashes, along with a thorough view of the data for each. Their findings showed that “one-half of the LTCCS crashes involved collisions between a large truck and a passenger vehicle (car, pickup truck, van, or sport utility vehicle),” and, of those crashes, the ten most common associated factors were:

  • Interruption of the traffic flow
  • Unfamiliarity with roadway
  • Inadequate surveillance
  • Driving too fast for conditions
  • Illegal maneuver
  • Inattention
  • Fatigue
  • Illness
  • False assumption of other road user’s actions
  • Distraction by object or person inside the vehicle.

Most of these issues are caused, at bottom, by bad policies in place at trucking companies. Policies that put speed over safety. Policies that encourage — or require — driving more hours than allowed by law, thereby forcing drivers on the road even when they’re fatigued. Policies that put unqualified, incompetent, or untrustworthy drivers behind the wheels of >80,000 lbs vehicles.

All those issues were part of why, last year, the Department of Transportation finally amended the FMCSA had amended the ‘hours of service’ rules to force drivers to get more sleep. (As I wrote about here almost exactly two years ago, given that the hour of service logbooks were already ripe with fraudulent entries, i.e., lying about the number of hours on the road, we desperately needed regulations forcing better compliance, like GPS and satellite tracking.)

In an amazing coincidence, just before the accident,the Senate had discussed rescinding those new rules and forcing the FMCSA to use the old rules. The claim is that the new rules cause congestion during the day; the reality is that manufacturers and retailers have a ton of clout on Capitol Hill, far more clout than safety advocates do.

It is cold-comfort for the victims of any accident to think there is a silver lining to their pain. But here there might really be one. If this accident prevents Congress from taking us back to the old, less safe driving rules of the past, then it will save numerous lives in the future.

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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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