To our clients, friends and colleagues — we send our sincerest and heartfelt wishes for a wonderful holiday season.

It is our hope that everyone will have an enjoyable holiday and the opportunity to be with family and loved ones. This is a time of year we are given an opportunity to appreciate and take pleasure in our loved ones and our friends; and to remember the importance of the relationships we are fortunate to have experienced over the years.

We recognize that many among us, including many of our own clients, suffer from injuries, disease and financial stress that will make their “happy holiday” much more difficult. Our sympathies and hopes go out to each of you and it is our heartfelt wish that you are able to enjoy this season of hope and good will.

As you gather with your family and friends, take just a moment to be thankful for what has been given to each one of us. Be hopeful for a bright future tomorrow. Be grateful for any opportunity to brighten the lives of others and keep your heart open for those in need.

From all of us at Searcy Denney Scarola Barnhart & Shipley, a happy holiday wish and may your new year be the very best.

The Depuy hip replacement device, the Articular Surface Replacement, manufactured by Johnson & Johnson has been recalled. But, wasn’t it approved by the Food & Drug Administration? Yes, it was approved based on representations by the manufacturer of its safety.

The discussion with the FDA about new devices often goes something like this:

The device I want to market to the American public is “substantially similar” to devices the Food & Drug Administration have already approved for use through other manufacturers products. So, my company should receive approval without the need for clinical testing or other expensive evaluation.

So goes the story told to the FDA by medical device manufacturers on a regular basis. The FDA must take the information, designs and the data about the device provided by the manufacturer and evaluate whether what is being represented as a “substantially similar” device, really is or is not. Often this is a difficult determination for the FDA to make; particularly under its often constrained budget.

In the case of the Dupuy hip replacement device, it appeared “substantially similar” to other devices, but there were some differences that would not become apparent without testing. In this case, the testing happened through implant of the device into the bodies of trusting and unsuspecting patients.

Depuy ASR implants are forged from cobalt chrome and the implant functions with metal against metal impact. One of the problems found through investigations conducted by Dr. Stephen S. Tower, disclosed possibly dangerous levels of cobalt in the blood stream of Depuy implant patients. In addition to hypothyroidism, which can be caused by the cobalt levels, it also exposes patients to possible cardiac complications.

The Depuy implant has demonstrated a higher than expected, in fact higher than acceptable, failure rate and ultimate need for revision surgery than other implants on the market. The failures in these appliances lead to severe pain, inflammation, and death of tissue and bone. Patients require revision surgery leading to longer rehabilitation periods and unnecessary suffering.

It appears that Johnson & Johnson began to learn at least by 2007 or 2008 that the ASR device was manifesting serious failure problems, but continued to aggressively market the implant.

In cases such as this, patients can be at a disadvantage in proving their implant was defective. Often, the patient will be forced to undergo revision surgery, the Depuy implant is removed and a new implant is installed. The manufacturers usually demand the return of the removed implant to them. This leaves the patient without possession of the offending product.

Should you have a Depuy ASR hip implant and are having problems, see your orthopedic physician immediately. Should you require revision surgery, make sure your physician retains the removed implant and returns it to you or maintains it in his records for safe keeping. The most efficient way to allow your surgeon to retain the implant for you is to provide him or her with a letter documenting that request.

In 2006, Stanford University took a tough and unpopular stand with its medical school professors. They banned what might be characterized as “payola”. Stanford put a stop to free lunches, trinkets with drug company names inscribed and have now barred professors from giving paid promotional speeches for pharmaceutical companies. This was a responsible and appropriate position to take, but, sadly, without  any checks and balances in place to assure compliance.

In most countries the title of professor is not given out lightly. Typically the only people possessing that title have long years of experience and are highly recognized in their field of expertise, but in the US we have assistant professors, associate professors, professors, tenured professors, non-tenured professors, etcetera. Still, even in the US, the title of professor carries with it  a certain respect for knowledge possessed and excellence attained.

It is disappointing to many that drug companies have been buying the authorship of articles from professors, some very noted professors, and purchasing the support for certain drugs from professors who quite often have no knowledge of the drugs except the information fed to them by drug manufacturers.

Academic institutions have “conflict of interest” policies that are supposed to prevent and control these efforts on the part of  drug companies, medical device manufacturers and others in bartering of academic support. Unfortunately, many of these institutions have relied on the candor of the professors being solicited and have not put into place any formal structure for policing this problem.

Some question why professors should be so tightly controlled. The fact is large amounts of money from manufacturers are in play and professors, even the best, are but human. It seems innocent to be paid to deliver a speech about a drug, for example, and particularly so when you have decided you think the drug is a good one. The problem is many-fold, though. Drug companies and medical device manufacturers typically pick the audience, the topic of the speech and provide the information they want the professor to use in their speech. Seems innocent enough unless the manufacturers desire to sell product exceeds their responsibility to safety – a problem we see repeated far too often.  This is a  problem best illustrated by the chair of a national panel examining conflicts of interest:

“You’re giving someone else’s messages, someone else’s talk, someone else’s judgments,” said Dr. Bernard Lo, a medical professor at University of California, San Francisco who chaired a national panel examining conflicts of interest in medicine. “We don’t allow our students to use someone else’s work.”

Dr. Richard Krugman, vice chancellor for health affairs at the University of Colorado thought his conflict of interest of policy was working fine and was surprised to learn that as many as 13 UC professors had been paid by drug companies for speeches given.

Most physicians see their participation as an academic exercise in which they provide information to the audiences to whom they are speaking. For example, Dr. Michael McDermott at the University of Colorado Hospital:

“From my standpoint, the value of my programs is purely educational for the attendees,” he wrote in an e-mail. Selling of the drug is left to company reps “to be done at a time that is different than when I give my talk.”

The problem, in addition to the control asserted by manufacturers over the speeches, is that an academic’s title imposes a certain built-in credibility and that professor’s approval of the drug or other product because of the educator’s reputation.

Efforts to control conflicts and to prevent manufacturers’ manipulation of presentations demonstrate responsibility and good governance on the part of teaching institutions. It is much safer and healthier for patients if academics study drugs and medical devices independently and provide the medical community and the public with unvarnished evaluations of these products.

What are the sources for the highest amount of identity theft?

Is identity theft really as a big a problem as publicized?

Doesn’t identity theft happen to other people?

I found interesting and startling information at “McAfee Identity Protection” – a counter identity theft company. We hear about people’s identities being stolen and I often hear about “how dangerous the internet is for stealing your stuff”. But I had never really looked at any numbers. The internet appears to have nothing on other forms of theft:

• Last year, 11million people fell victim to identity theft.
• Last year, identity theft resulted in losses of $54 billion.
• 89% of identity theft occurs off-line.
• Every (3) seconds an identity is stolen.
• Average fraud damages suffered by each victim of identity theft totals $5000.
• Between 2005 and 2008 more than 1900 false tax returns were filed by identity thieves.
• On average, most people must spend 165 hours repairing the damage caused through the creation of new accounts by identity thieves.
• The average amount of time spent repairing damage done to existing accounts by identity thieves.
• 43% of all identity theft is the result of the theft of hard copy items, such as a wallet, checkbook, credit card, billing statement, or another physical document.
• Data breaches affect as much as 25% of American adults.
• The number of personal identities stolen over the internet amount to only a surprising 11%.

The FTC provides some very valuable information about how thieves are able to misuse personally identifying information:

• Dumpster Diving. They rummage through trash looking for bills or other paper with your personal information on it.
• Skimming. They steal credit/debit card numbers by using a special storage device when processing your card.
• Phishing. They pretend to be financial institutions or companies and send spam or pop-up messages to get you to reveal your personal information.
• Changing Your Address. They divert your billing statements to another location by completing a change of address form.
• Old-Fashioned Stealing. They steal wallets and purses; mail, including bank and credit card statements; pre-approved credit offers; and new checks or tax information. They steal personnel records, or bribe employees who have access.
• Pretexting. They use false pretenses to obtain your personal information from financial institutions, telephone companies, and other sources.

What can you do if you discover identity theft?

• File an identity theft police report immediately.
• Check credit reports for unusual activity such as new credit cards you do not know about and loan applications. Place a fraud alert on your credit report.
• Dispute unauthorized transactions you discover.
• Close all accounts that have been opened fraudulently.
• File a complaint with the Federal Trade Commission’s (FTC) Identity Theft Hotline at 1-877-438-4338 begin_of_the_skype_highlighting 1-877-438-4338 end_of_the_skype_highlighting.

Do not trust email offers of credit cards without carefully evaluating the actual website and verifying its accuracy. Obtaining credit cards only from your own bank or a well known, established credit provider is probably the safest practice.

Use a shredder at home. Many different models suitable for home use can be purchased reasonably at most office supply stores and retail stores, such as WalMart, Target, etc. Shred all the mail and forms containing personal information, of which you intend to throw out.

Use common sense in dealing with your credit, offers of credit and with your personal information. You would not provide your personal information to a stranger who appeared at your door one day unnanouced, would you? Don’t make the same mistake through email contacts either.

Big Tobacco receives two pieces of news that, well, is going to really not make for a merry Christmas this year.

Clearly a classic of “beware what you wish for my friend, for surely you shall receive it!”

Every time a jury finds against Big Tobacco, their talking heads come out with the boiler plate speech that they can not wait to get their cases appealed because, according to Big Tobacco, the trial courts are doing it wrong.

Well, Big Tobacco finally received their first answer in the higher courts; from the 1^st District Court of Appeals in Florida; in the case of Martin v RJ Reynolds. Big Tobacco essentially argued that they were denied their day in court because the trial judge advised the jurors of a decision reached by the Florida Supreme Court in a decision called “Engle”.

The First District analyzed the Florida Supreme Court’s decision in the “Engle” cases and in their decision, they ratified certain conclusions reached by a jury who heard over a year of testimony and evidence relating to the conduct of the Tobacco Companies in selling cigarettes for the last century:

• That cigarettes cause a whole bunch of diseases, including: aortic aneurysm, bladder cancer, cerebrovascular disease, cervical cancer, chronic obstructive pulmonary disease, coronary heart disease, esophageal cancer, kidney cancer, laryngeal cancer, lung cancer (specifically, adenocarinoma, large cell carcinoma, small cell carcinoma, and squamous cell carcinoma), complications of pregnancy, oral cavity/tongue cancer, pancreatic cancer, peripheral vascular disease, pharyngeal cancer, and stomach cancer).
• That cigarettes are addictive.
• That the Tobacco Companies knowingly marketed cigarettes that were defective and unreasonably dangerous.
• That the Tobacco Companies concealed or failed to disclose important information about cigarettes that was not able to be known by the public.
• That Tobacco Companies misled the public about the dangers of smoking cigarettes.
• That the Tobacco Companies, acting together, concealed information regarding the negative health effects of cigarettes.
• That the Tobacco Companies, acting together, concealed the addictive nature of nicotine in cigarettes.
• That the Cigarette Companies sold products that were defective.
• That all the Tobacco Companies were negligent.

So, just to put it into a nutshell:

The Tobacco Companies lied to the American public about how seriously addictive nicotine in cigarettes was and they withheld information about the dangerous health effects of cigarettes from the public. Further, that Big Tobacco aggressively marketed a product that they knew would cause serious diseases and that was unreasonably dangerous. The Tobacco Companies made billions of dollars making the American public sick.

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High levels of mercury continue to be found in canned tuna and pose health threats to pregnant women and children.

Consumer Reports reported that new tests of 42 samples of tuna from cans and pouches confirmed that white albacore tuna contained much more mercury than light tuna. “If a woman ate two ounces of any of the samples we tested (one serving is 2.5 ounces), she would exceed the daily mercury intake that the Environmental Protection Agency (EPA) considers safe,” said Consumer Reports. The study also found that eating only two servings (5 ounces) of the light tuna would also exceed the government limit on mercury levels.

“Canned tuna, especially white, tends to be high in mercury, and younger women and children should limit how much they eat,” says Dr. Urvashi Rangan, Director of Technical Policy, at Consumers Union, a nonprofit publisher of Consumer Reports. “As a precaution, pregnant women should avoid tuna entirely.”

Pregnant women and young children who are exposed to even low levels of mercury can develop subtle impairments in hearing, hand-eye coordination and learning abilities. Exposure to high levels of mercury can cause central nervous system damage, hearing loss and vision problems. The EPA and the FDA advise high risk groups, which include pregnant women and young children to limit their consumption of canned tuna to no more than 12 ounces of light tuna and 6 ounces of albacore tuna a week.

Even with all of the mounting evidence about high mercury levels in tuna, the FDA still has not issued a warning to consumers about the dangerous levels of mercury in canned light tuna and albacore. When approached by Food Policy Initiatives at Consumers Union, about why the FDA has failed to issue such a warning, the FDA spokesman indicated that, “The agency had already taken the spike into account when formulating its mercury advice.”

“The FDA should strengthen its current guidance and advise pregnant women to avoid tuna altogether, especially given the uncertainties about the impact of occasional fetal exposure to high mercury levels,” said Jean Halloran, Director of Food Policy Initiatives at Consumers Union. “The FDA should also continue to test for mercury across the spectrum of fish and seafood in the marketplace in order to provide consumers with adequate information on the mercury levels of all fish.”

Other fish that federal agencies have found to contain high levels are mercury and should be avoided by children and pregnant women are king mackerel, shark, swordfish, and tilefish.

“The heavy metal accumulates in tuna and other fish in an especially toxic form, methylmercury, which comes from mercury released by coal-fired power plants and other industrial or natural resources, such as volcanoes,” according  to recent studies by Consumer Reports. “Fortunately, it’s easy to choose lower- mercury fish that are also rich in healthful omega-3 fatty acids,” says Dr. Rangan, “That’s especially important for women who are pregnant or might become pregnant, nursing mothers, and young children, because fetuses and youngsters are still developing their nervous systems and are therefore at particular risk from methylmercury’s neurotoxic effects.”

Health experts advise eating Alaskan salmon, clams, shrimp and tilapia which have been shown time and time again to have low levels of mercury and are healthy for everyone to eat.

Sandwiched between mammoth tractor trailers; a sports car on your bumper and then, like a slingshot, he is beside you, in front of you…in no time he is many cars ahead of you and gaining distance by weaving in and out of traffic; a motorcycle speeding up the highway on only the rear wheel. That is I95 in Palm Beach County, Florida on the average day.

Palm Beach County is certainly not one of the most populous or largest cities in the country, but the stretch of I95 between West Palm and Boca Raton is ranked as the 7^th deadliest stretch of highway in the nation; a scary and sad statistic, representing countless injuries and deaths.

Between 1994 and 2008, there were 2631 fatal accidents with 2896 deaths. In those accidents resulting in death, alcohol was involved 24.5% of the time and speed contributed 20% of the time. Perhaps the most disturbing statistic though, is that in 2896 deaths, 65.9% failed to wear seatbelts. So, it is possible that as many as 1500 of those people died needlessly. If they had simply been wearing seatbelts they might be alive today.

What are reported to be the worst roads in the Palm Beach County area?

Here they are for 1994 to 2008:

I happened over to the website of the American Tort Reform Association (ATRA) for some light reading. These folks have been busy. While trial attorneys have been representing their clients these energetic folks and the US Chamber of Commerce have been writing what can only be logged in the category of interesting fiction.

I pulled up their treatise on “Defrocking Tort Deform”. No objective, informed person could call this piece of rubbish anything, but a complete rewrite of actual history. There is little in this little paper that can stand any objective, fact conscious examination.

First ATRA redefines what trial attorneys have done in the civil justice system “for more than 30 years” and seek to label it presently with a fanciful name: “judicial nullification of tort reform”. I find that those who can not rest on the facts typically resort to fanciful names and titles. What trial attorneys have been doing for 30 years is to protect the rights of their clients; not to pass legislation that readjusted the plainly written law or the constitution. ATRA’s website describes them as just the sort of organization, which they seek to paint trial attorneys as:

• An unparalleled track record of legislative success.
• ATRA fights in Congress, in state legislatures…
• ATRA works to counter that influence by challenging this status quo and continually leading the fight for common-sense reforms in the states, the Congress…

ATRA’s agenda is to essentially attack every form of justice solution and almost exclusively in favor of corporations, as set forth on their website:

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Are the threats of today’s travel starkly different from those that existed 20, 30, or 50 years ago? Do we live in a new world?

I think the answer is an unequivocal…yes.

I still remember my first airline flight as an adult. It was 35 years ago. We checked baggage and I walked to the terminal with my girlfriend. No searches. No boarding pass required to get to the gate. No bomb residue tests at the gate.

The good ol’ days. Bye-bye to those days forever I am afraid. I do not like it, but, it is what it is.

Today is the day of shoe bombers, car bombers, and box cutters. The threat has landed on American soil and we have lost our innocence.

So, this lover of the constitution; this guy who believes we must guard our freedoms doggedly; has caved. Being searched and having my bags searched is an inconvenience and an invasion. Having myself searched is an outrage. Being put through a full-body scanner is, well, annoying and, I suppose, somewhat worrisome.

Sorry to all my constitution loving friends, I think the current regulations are necessary in the interest of the safest possible traveling. I do not have to love it to understand the need for it.

Did the framers of the constitution see this happening? In some respects they probably imagined the concept, although not the specifics.

So, it is with mixed feelings that I read about Robert Dean’s attempt at a temporary injunction, filed in the US District Court for Eastern Arkansas, against the Transportation Security Administration (TSA). Mr. Dean seeks to suspend the TSA’s use of full-body “pat-down” searches and “back-scatter full-body imaging systems.” Mr. Dean correctly, in my opinion, asserts that both efforts violate our Fourth Amendment rights under the constitution.

I think the question is: Are we willing to accept these new procedures in this instance, but resist similar efforts in other instances? The real fear, I suggest, is not these specific procedures, but the government gaining a “foothold” in asserting other controls, which violate the constitution. I think allowing this invasion is clearly a slippery slope, but what are the alternatives?

What do you think?

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What lawsuits consume the very most resources in our court system?

Lawsuits filed by injured people? Nope.

Lawsuits filed by corporations suing corporations? Yep! By far, excluding divorce, we tax payers pay out more to support the court system’s time in handling one corporation suing another than any other type of case.

So, it was with some interest that I read about the latest lawsuit news involving SAP AG and Oracle. SAP is a German company; a global leader in technology systems and solutions; with income of over 13 billion dollars. Oracle is also a tech leader in software and hardware with an income of over 15 billion dollars.

The battle between the two giants arose from allegations that SAP had stolen billions in intellectual property from Oracle. Apparently not until years of litigation and only finally at trial, SAP confessed they were guilty of stealing some of Oracle’s intellectual property, but argued that:

“SAP posited that (SAP)…actually wasn’t that good at stealing customers from Oracle, and that SAP should not pay money it made from 358 customers it gained with the stolen data.”

The jury disagreed with SAP AG and awarded $1.3 billion in favor of Oracle. I guess the jury felt SAP was “good at stealing customers” from Oracle.

So, years of attorneys’ fees; countless court time; and (3) weeks of trial for two corporate giants to resolve a dispute in which apparently one was guilty all along. Not a battle by an injured person against a mega-corporation; in which the hurt person is simply trying to recover for pieces of their lost life, livelihood, and permanent physical injuries.

This is actually where our judicial resources are going: corporate super powers fighting amongst themselves. Bottom line: our constitution quite wisely provides for disputes to be settled in this way.

Many who have led blessed lives are quick to want to cap damages awarded to injured people, but should we cap damages which mega-corps can recover? Do these poor, victimized corporate behemoths deserve our attention and protection? Wouldn’t capping the damages corporations can recover from each other conserve resources of our court system? Not fair? You think that corporations should be allowed access to our court system in order to fight the “good fight”?

Can we really trust “average Joe or Jill” jurors to be able to listen to evidence in these corporate fights and be smart enough to reach the “right” decision? Should we jurors be told what to do in court cases? All we citizens exercise one of the most important responsibilities of running this country: the responsibility for voting. Whether I ultimately do or do not agree with what the majority of voters decide, this is a job we all take on without significant government regulation or intervention, right?

When voters overwhelmingly deliver a win to a particular candidate, we call it a landslide, a clear message from the electorate. We may quietly argue about the wisdom of the majority, but we do not legislate away part of the votes; we do not move numbers of votes amongst the candidates in order to “level the playing field”.

Trust me; neither jurors nor voters need crayons and “stay in the lines” instruction to accomplish their jobs.  A 1.3 billion dollar verdict will do more to curb overzealous corporations than any government board of ex-big business lackeys. Truth be told its good old fashion economics; when the cost of malfeasance is greater that the gain by wrongdoing then, and only then, will you have a chance to sustain the equilibrium for proper behavior and to curb abusive power. Civil litigators in the private sector are the most efficient means at targeting bad seeds and at the least expense to tax payers.

So, when you think about “runaway juries”, think about the possibility that it has nothing to do with jurors not being smart enough to see the truth. What if, jurors are smart people, just like voters. What if had you been in a courtroom and actually heard the evidence supporting egregious conduct, that you, too would award $1.3 billion against a corporation.

Imagine you are the one who has been wronged or injured in some way. Imagine you have lost everything important to you or have suffered a loss of a piece of your life that you will never be able to get back. Imagine jurors hear your evidence. Imagine those smart jurors want to award you the full measure of your damages. Imagine the legislature has passed laws that limit the amount of damages you can recover; regardless of what the jury has decided.

Imagine you are told that justice in your case is what the legislature decided and not what was decided by your peers? Not fair? Think about that the next time someone talks about a “runaway verdict”. Think about: what if? What if it is me who is harmed?