More than 8,000 smokers and their loved ones have been waiting for nearly two decades for their opportunity for justice. These smokers were part of the Engle class action that was decertified several years ago.  The Florida Supreme Court upheld a number of findings made by the Engle jury after they heard evidence for nearly a year; which will now apply in individual trials being held across the state for smokers and their surviving family members.  Most of the upcoming trials involve the surviving spouses and children of smokers who died long ago due to lung cancer or chronic obstructive pulmonary disease (COPD).

Below is a summary of upcoming tobacco trials:

In addition to the above trial settings, additional trials should be scheduled during the same time period in Broward, Hillsborough, Lee, Escambia, Duval, Volusia, Alachua, and Levy Counties.  Several judges have indicated a willingness to consider conducting multi-plaintiff or consolidated trials, over the strenuous objection of the tobacco defense lawyers, in hopes of giving every former member of the Engle class action the right to a jury trial during their lifetime.

On September 24, 2009, a hearing was held in Richmond, Virginia before the National Panel on Multi-District Litigation with regard the lawsuits that have been filed against the manufacturers of YAZ, Yasmin and Ocella.  This Panel of federal judges who oversee the establishment and coordination of mass torts litigation within the federal court system will decide shortly whether to assign all of the lawsuits pending in the federal courts to a single judge for the purposes of managing the litigation and overseeing discovery and early trials of these claims.   A decision from the Panel on the need for national coordination is anticipated within the next several weeks.   Individual lawsuits are also being coordinated in state court in Philadelphia before Judge Sandra Moss.

It is anticipated that thousands of individual lawsuits will shortly be filed by girls and women who suffered serious personal injuries or died as a result of their ingestion of these popular birth control pills.  These lawsuits include claims that the drugs are defective, the warnings given with the drugs were inaccurate or insufficient, and that the manufacturer’s marketing of the drugs was improper. Yaz, Yasmin, and Ocella (and its European counterpart Yasminelle) are considered fourth generation oral contraceptives and all contain a unique progestin component – drospirenone in addition to varying doses of ethinyl estradiol.  These birth control pills have been linked to a number of serious injuries including deep vein thrombosis (DVT), pulmonary emboli (PE), heart attacks, strokes, and gallbladder disease.  Further information about these drugs and our firm’s involvement in the YAZ/Yasmin/Ocella litigation is available at our firm’s website.

Recently, a woman was impregnated at a fertility clinic with another woman’s embryo.  The woman has decided to give birth and give the baby to the biological mother.  This preventable and heart breaking mistake should not have happened.

There have also been mistakes in which parents have had their eggs tested for genetic defects only to have the genetically damaged egg implanted rather than the genetically sound egg.  It is a very costly investment both emotionally and financially.

A California couple discovered that the Laurel Fertility Care Clinic destroyed 7 of 13 viable embryos because they were mistakenly inseminated with the wrong sperm.  In this case the couple had a contract that provided no embryos were to be destroyed and the decision by the clinic prevented the couple from the opportunity to make their own decisions.

What is the cause of this problem? At least in part it is likely connected to the burgeoning demand for fertility treatment in the last several years. A report from Mail OnLine sets forth that the number, in Great Britain, of women going through in vitro fertilization has increased from 23,000 in 1995 to 35,000 in 2009. Yet, the number of facilities who handle in vitro fertilization there has not increased with the numbers of women seeking this treatment.

Last Thursday, Carolyn Savage gave birth to a child belonging to another couple. The embryo was mistakenly implanted in Ms. Savage, but actually belonged to Shannon Morrell. Both Ms. Savage and Ms. Morrell were hoping for a child; because of Ms. Savage’s unselfish act, she will be denied her child, but she will provide another family with their child.

The American Fertility Association issued the following press release:

The American Fertility Association Responds to Alleged Embryo Mix-Up Case in Ohio
September 24, 2009 – An Ohio woman, 40 year old Carolyn Savage, claims a fertility clinic implanted the wrong embryo and that the baby she’s due to deliver the first week in October is not hers.  Several media reports state Savage and her husband plan to give the baby boy to his biological parents.  The name of the clinic is not being released in this very rare alleged case.
The AFA is issuing the following statements regarding the matter:
Medical:
“If the facts in the Ohio case are concordant with media reports, it’s a very unfortunate circumstance for all concerned, a result not to be minimized or trivialized. The story is newsworthy, however, because it is an extremely rare event.
In 2007, there were 132,262 IVF cycles performed in the United States (Fresh, Frozen and Donor Egg, per the CDC) in which more than 300,000 embryos were placed into the intended recipients. Embryology laboratories have extremely rigorous procedures to maximally ensure public safety and the health of our patients and their children born of IVF.
The Ohio case is rarer than 1 in a million and I speculate that human error, not malintent, will prove to be the root cause. I have every confidence that each IVF program in the country will review their procedures and discuss this case to reinforce what we already know, that the work we do each and every day is very special and that the hundreds of thousands of patients we help each year are counting on us to do our best every day.”
-Alan Penzias, MD, Member, AFA Board of Directors
Legal:
“Unfortunately, due to the acknowledged negligence of the IVF Physician and clinic, this Ohio couple, by choosing to proceed with the pregnancy, is obligated to afford the other couple the legal rights to this little boy.  Any case, such as this that would go before a court of law, would likely grant full legal and physical custody to the other couple without any visitation to the Ohio couple.  They appear to be aware of this – such an unfortunate event for all parties involved.”
-Theresa Erickson, Esq., Member, AFA Board of Directors; Member, AFA Legal Advisory Council
Mental:
“As a psychotherapist and co-chair of The American Fertility Association, patients receiving treatments live in fear of this happening to them.  The AFA continues to encourage patients to become educated consumers and ask their treatment providers about their procedures for safeguarding their genetic materials. Programs are required to have in place strict guidelines that are overseen by numerous state and federal agencies requiring very specific procedures to be practiced and in place by each reproductive center.
These incidents are rare and patients should feel assured that the majority of centers follow these rigorous guidelines.  When these rare accidents do occur, it can be not only psychologically devastating to the couples involved in this mix-up but emotional damaging to the thousands of patients who are currently receiving or starting fertility treatments. We at the AFA hope that the media will allow these couples, the children involved, and the baby yet to be born to privately get the support that they need to cope with this emotionally difficult experience.”

This type of error can certainly be characterized by the national association as a “rare” error, but I am sure that neither Carolyn Savage nor Shannon Morrell can find much solace in this representation. Carolyn Savage will undoubtedly always wonder about the baby she brought into this world.

Making the decision to go to a fertility clinic in the hope of trying to conceive a child and/or have eggs tested for genetic factors must be a very difficult decision. All clinics and laboratories should have protocols in place to prevent these devastating errors from happening; causing devastating consequences to the parties involved. This is really a zero error tolerance business engaged in by fertility clinics. Providing an explanation such as that offered by the American Fertility Association is simply insufficient and lacks the very personal consideration due to these victims.

Become an educated consumer. Read, ask questions, be a persistent presence in the process of any medical procedure you undergo.

We have all been there. When you begin to pass a tractor trailer on the highway, you speed up just a little bit in an effort to get quickly clear or you slow down and simply refuse to take the chance. If passing, you are all the while holding your breath and engaging in an internal monologue that involves begging the particular truck not to drift into your lane.  Or that when seeing such a truck up ahead, I have unsettling visions similar to that portrayed in this video:

[youtube]http://www.youtube.com/watch?v=YLHCsjtPppw[/youtube]

If I am alone in this regard, then I have just outed myself as an anxious, neurotic, pessimist.  However, when I see a story like this one reported on WLTX in Columbia, SC, I am reminded that accidents like these do not always happen to the “other guy” because one of us is always going to be that “other guy”. They are a tragic reality on the asphalt arteries dominated by tractor trailers whose bodies are unwieldy, loads can be dangerous and drivers are sometimes fatigued.  Such a combination poses a constant threat to other vehicles and often yields devastating consequences.

On October 5, 2005, a University of Washington professor was killed when an overloaded logging truck lost its load.  This preventable death was one of over 5,000 attributable to tractor trailers in that year alone, not to mention over 100,000 injuries attributable to same.

Federal laws regulating commercial vehicles exist.  For example, there are length and width limitations, all commercial vehicles are required to pass annual safety inspections, and all owners and operators are subject to fitness tests, to name a few.
Compartmental regulations are all well and good, but the one thing that is beyond regulation is the final product.  For example, one knows the makeup and ingredients of a single shot of Patron gold tequila, and likewise any other individual liquors; such can be measured, quantified, inspected.  But when that tequila is mixed with other known quantities of vodka, gin, rum and triple sec, the result is a drastically different mixture whose effect on the imbiber is far more potent and dangerous than that of a single shot of any of the above-named.  The combination and the effect cannot be measured, anticipated, quantified, regulated.  And like the morning-after effects of Long Island Iced Tea, the loaded to maximum capacity, maximum length, maximum width commercial vehicle, that sets out on the road in the early pre-dawn hours, with an operator who has not slept in 48 hours is a potentially lethal, unable to be regulated until it is to late menace to our highways with every RPM.

As it currently stands, the maximum weight of a commercial vehicle is 80,000 pounds.  At an average highway speed of 60 mph (I am, at 70 plus mph on the interstate, routinely passed), it neither takes an expert in physics to understand the damage this could, and does, cause, nor to envision how difficult it would be for an operator (even a well-rested, fresh operator) to stay in control of such a beast.  However, knowing this is the case, there are efforts underway to convince federal lawmakers to increase the maximum weight to 97,000 pounds. Can you imagine any scenario in which a nearly 50 ton vehicle going 70 plus mph would not be a juggernaut of destruction?

When will senseless and preventable deaths at the hands of overloaded tractor trailers dwindle … when companies put public safety before private gain.

This is a problem, but there are solutions!  Visit such websites as www.roadsafeamerica.org or stopbigtrucks.org to learn more.

A report from California recently set forth that 1 in every 5, a whopping 20%, of all medical claims in California are routinely denied by health insurance companies. This is the case even when the patient’s physician has recommended the requested care.

A collaboration between the California Nurses Association and the National Nurses Organizing Committee studied the performance of health insurers in California between 2002 and June of 2009. Their findings are shocking and the examples of denied care are frightening:

• Bob Scott of Sacramento needed radiation and chemotherapy for a brain tumor in 2005. Kaiser denied the treatment, saying the 57-year-old was too old. He died six months later.
• Nick Colombo, a 17-year-old from Placentia, needed a special procedure for bone cancer. PacifiCare denied the treatment. After numerous protests, the insurer reversed the decision. But it was too late and Colombo died.
• Kim Kutcher of Dana Point was scheduled to have back surgery when California Blues denied authorization six days before the planned operation. She ended up having to pay $60,000 out of pocket and is still fighting to get reimbursed.

I had been in the insurance industry for several decades before joining my current employer “in the light” and the insurance industry never ceases to amaze me.

I am one of those people horribly addicted to smoking and I am desperate to quit this dangerous habit. My physician recommended I start taking one of the drugs shown successful for aiding in kicking the habit. So, I went to purchase this smoking cessation aid only to be shocked to find out that my health insurance plan, which covers all prescription drugs, will not cover the $130 initial one month supply of this drug. I can afford it, but many people cannot.

It amazes me; the Carrier will pay $ 250,000 to remove my lung, provide radiation and chemo, in the event I develop lung cancer from smoking, but they will not help me avoid the agony and the significant exposure to them by covering this piddling sum to possibly prevent the catastrophic event.

It has been proven, scientifically, that acupuncture will relieve pain; yet unless acupuncture is performed by a medical doctor for surgical anesthetic purposes, the Carrier will not pay. Inexplicably, they will pay for a variety of Orthopedic, Neurologic, or Anesthetic provided procedures without question, but Certified trained Acupuncturists, not MD’s or DO’s do not qualify. Pay the Chiropractor, that’s OK.

We are all very aware of the dangers involved with driving while intoxicated; the serious and often deadly results.  There is another equally deadly combination on our roadways – driving and fatigue!

Most drivers do not realize the risks of driving while fatigued and have poor knowledge about the speed of onset of fatigue.  They may feel tired but think they can keep going in order to reach their intended destination without stopping.  What warning signs should we watch for to identify dangerously fatigued drivers?

• daydreaming while on the road
• driving over the center line
• excessive yawning
• feeling impatient
• feeling stiff
• heavy eyes
• reacting slowly

When a driver feels tired the reaction is often to drink coffee, open a car window, turn on the radio and take other steps to try and restore alertness. The problem with these solutions is that fatigue also impairs the driver’s cognitive functions and taking steps to keep awake while driving is a bad idea that can lead to a serious accident.

In order to avoid injury to the your passengers, and other drivers, pull over and stop driving when you feel the signs of fatigue overtaking you. If possible, have another occupant in the vehicle drive.  If no one is with you, call someone or pull off the roadway in a safe location and rest.

It has been shown that driver fatigue occurs in two distinct ways – as a state prior to getting into the car (prior sleep deprivation) and as a state immediately prior to falling asleep at the wheel.  Both are significant because chronically fatigued and/or sleepy drivers make bad decisions, much like a driver impaired by alcohol. A badly fatigued driver can be expected to have discounted all earlier signs of fatigue, including obvious impairments to continue driving.

Ways you can avoid fatigue include:

• Avoid alcohol–this simply adds to fatigue and is illegal;
• Avoid large meals just before driving;
• Avoid medications that might increase drowsiness;
• Establish a realistic driving plan and stick to it;
• Share the driving whenever possible and limit driving to no more than (2) hours at a time;
• Take a break from driving every (2) hours;
• Stay well hydrated–dehydration worsens fatigue;
• Get plenty of sleep–the average person needs six to none hours every night.

All drivers need to be aware that driving while fatigued is as dangerous as driving while under the influence.  We all need to be mindful that many lives are lost each year because someone got behind the wheel of a vehicle that was too tired to safely drive it.

Take the fatigued driver quiz.

I am what you would call the elder of our firm; although I prefer to think of myself as the excitable sage. In either event, I have reached that level of “experience” at which my partners allow a certain amount of my opinion to be disseminated to pretty much anyone who will listen. I feel strongly enough about recent developments occurring around me that I thought I would once again try my hand in this forum.

This is just my opinion… but we know that many of you are thinking the same things I am going to say here.
We have the greatest country in the world, for many reasons, but the core of our country can be found in the document that is the very foundation of what most Americans hold most dear:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

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When you suffer an injury your first thought is not who can I sue; or, it certainly should not be that thought. What most people think about are their injuries, how to obtain treatment and how to put their lives back together. As a result of attending to these essential things, valuable time is often lost in the event compensation is due from a negligent party for your injuries.

Whether you know you have a claim or whether you want to pursue a claim in the event you have one is not the only basis for seeking legal representation. The initial reason to timely seek legal representation is to preserve evidence, witness knowledge, and examine your legal rights. Attorneys can only advise clients what their legal rights are and make recommendations on whether and how to pursue those cases having merit. Ultimately, the decision to pursue a legal claim is solely yours.

If, however, too much time passes between the occurrence of an injury and the beginning of an investigation, evidence may be lost and the recollection of witnesses (including you) may grow dim. So, gathering facts can be crucial to preserving your legal rights.
If you are involved in any accident, there are some basic things you or someone on your behalf can do:
Obtain the names, addresses, e-mail addresses and telephone numbers of any witnesses;

• Obtain the name(s), addresses. E-mail addresses, and telephone numbers of anyone who may be responsible for your injuries. In an automobile accident, that may be the person who rear ended you, but if, for example, the other driver pulled out in front of you because “the bushes were blocking my view”, an additional potentially responsible party may be the property owner of the bushes.
• Record the type of vehicles; including the make, model, license tag number, and the type of damage to each vehicle.
• If your vehicle is inoperable, try to determine the location to which it is being towed.
• Take photographs. Nearly every cell telephone has the capacity to take basic photographs of the scene of any accident. In an automobile accident, photograph all the vehicles; photograph the damages to each vehicle; photograph the scene by standing out of traffic and shooting a series of pictures moving from the left to the right of the entire scene. Photograph skid marks.
• If you can, sketch the scene and include the relative location of vehicles when they ultimately came to rest.
• Obtain investigating officers names and telephone numbers.

Any time you are injured, the very first priority needs to be your injuries and getting them attended. Never place yourself in a position of peril in attempting to obtain evidence. If people are unwilling to volunteer information, do not try to force them. When an accident occurs, emotions are often high. Your goal, or someone acting on your behalf, is not to take the place of skilled police officers or investigators.

If you are unable to do any of this at the scene because you are injured, ask a friend, spouse, or other person to do it for you to the extent that is possible.

Call an attorney to determine your rights.

Once upon a time there was an insurance crisis…a lawsuit crisis…a medical malpractice crisis…a series of crisis manufactured by industries who have a need for consumers to have someone other than them to blame. The insurance industry, the healthcare industry, Associated Industries — the business of business organizations; they all have very distinct business reasons for keeping consumers mad at trial lawyers. These businesses know that government does not have the time or resources to hold them accountable for negligence; sometimes intentional; and so, they keep throwing gasoline on the fire of the propaganda created disdain for trial lawyers.

When I have the opportunity to give speeches or hear them given in connection with tort reform and tort law in general, the conversation usually finds itself leading to a discussion of medical negligence, medical malpractice. From there, depending on the group, we talk about doctors “fleeing” states; excessive malpractice premiums; and, inevitably, the “McDonald’s coffee case”.

What does it take to file a medical negligence lawsuit in “good faith”? To truly understand that, you must understand the elements the plaintiff is required to prove in any lawsuit:

• Negligence – someone acted improperly—a deviation from the acceptable standard of care.
• Causation—the someone’s improper action caused damages (in whole or in part)
• Damages – the injury flowing from the act of negligence

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For attorneys who represent injured victims of personal injury giving back to the community is not new. Interestingly, the work done and promoted by these lawyers is often done quietly. For decades, trial lawyers have felt compelled to try and help those less blessed by life. We are proud to recognize one of our own, Partner Jack Scarola.

Jack Scarola has been involved with many helping organizations over the years, but he has been connected to The Lord’s Place, here in West Palm Beach, since its inception in 1979. Recently, Jack was named as Chairman of this organization and continues his deep involvement with them.

In a country as great as ours, no one should have to go hungry and no one should be without a home. Sadly, this is not the case:

• 40% of homeless people went without anything to eat for at least one day in the last 30 days because they could not afford food.
• 64% of homeless people report they have a problem with alcohol or drug use.  39% report they have mental health problems.
• While homeless 79% have money or possessions stolen from them.
• 44% have jobs that do not pay enough to keep a roof over their heads.
• 60% of homeless women have children who live with them.
• In Palm Beach County, approximately 4,000 individuals are homeless on any given day.  35% of those are children.
• 83% of the homeless in Palm Beach County report they need multiple services to escape homelessness.
• 89% of respondents are homeless for one year or less.

Think about some of these statistics. Every day in Palm Beach County, 1200 children are homeless. Nationwide, it is estimated that between 700,000 and 2,000,000 people are homeless everyday in this country.

We applaud the very difficult work done by groups such as the Lord’s Place and we are proud that Jack Scarola has taken the time since 1979 to care for those less fortunate. We could all learn from some of Jack’s words in explaining his vision for the Lord’s Place:

“…promoting an increased awareness of how much the quality of life for each of us depends on the quantity of our compassion for the less fortunate members of our community.”