I wrote last week about Republican voter suppression efforts, and the unfortunate decision of a judge in Pennsylvania not to block that state’s voter ID law, which could disenfranchise up to 750,000 mostly minority voters.

A three-judge panel of the United States Court of Appeals for the District of Columbia has today blocked a Texas voter ID law, finding that it places “strict, unforgiving burdens on the poor” and disproportionately will impact minorities.

1960's Voter Registration

Texas is covered by Section 5 of the Voting Rights Act, which requires federal approval of any voting changes in states that have a history of discrimination.  The Justice Department refused to approve the voter ID law, and Texas chose to sue the department.

Another three-judge panel of the same appellate court is hearing arguments this week on a similar voter ID law passed in South Carolina.  The entire matter seems headed for the United States Supreme Court.

What are they thinking? After publicly admitting its Rejuvenate and ABG II hip implants fail because they cause heavy metal poisoning in patients, Stryker has not stepped up to the plate and promised affected patients it will pay for their revision surgeries. Stryker recalled both its Rejuvenate and ABG II hip implants the first week of July, 2012. Since that time thousands of patients have received notice from their doctors that the hip implanted in them is defective and has been recalled. Most doctors have been telling their patients that when it fails it has the potential for causing soft tissue necrosis and systemic metallosis.

After returning to their doctor many of these patients now have an explanation for the months of pain they have been experiencing for which they have received little or no explanation. Their doctors have checked their blood levels for metal ion contamination and found them to have excessive levels of cobalt in their blood. In addition many have had metal artifact reduction sequence (MARS) MRI scans that have revealed pseudo tumor formation and a collection of fluid around hip joint.

In my experience most doctors faced with these findings have suggested to the patient they need revision surgery. However, many of these patients just had their hip implanted last year. They paid a large deductible and spent weeks out of work recuperating and rehabilitating. Some of my clients are still paying for their original surgery on a monthly basis. Although their doctor is recommending surgery, their hip implant is poisoning them and they are in pain, they can’t afford to have their defective hip removed.

If Stryker recalled this product the first week in July they obviously have known about this problem for some time. I’ve personally spoken with doctors who say that before the recall they were telling Stryker about the problems they were experiencing with these hips. If Stryker knew about this problem well before the recall that means they’ve had plenty of time to establish an efficient and objective system for paying the medical expense and lost wages for the victims of these hip implants upfront. Despite all that time, all Stryker is currently offering these victims is,”the opportunity to file a claim.” Stryker is providing absolutely no assurance to its victims that they will in fact pay the expense associated with revision surgery.

Stryker’s reaction to having marketed a device that has hurt thousands of patients stands in stark contrast to Johnson & Johnson DePuy’s response after it recalled its defective ASR hip implant. Almost immediately after the recall Johnson & Johnson DePuy announced it had established an objective, efficient and prompt means for victims to have the defective device removed from their body. They hired Broadspire, an independent adjusting company to process victim’s claims for medical expenses, lost wages and other out-of-pocket expenses associated with having their devices removed. While this didn’t compensate victims for their pain and suffering, and having to undergo a revision surgery, or the real exposure to metallosis, it was the responsible thing to do.

I have written about this before but it was some time ago. A lot of time has passed. I have urged Stryker to put some objective claims process in place that assures qualifying victims their medical expenses and lost wages will be reimbursed if they undergo the surgery to have the defective device removed. Stryker remains silent to the damage it has caused.

Every day I receive several calls from clients in pain, have elevated levels of cobalt circulating in their bloodstream, have fluid collecting around their implant and a pseudo tumor growing in their hip who have been told by their doctor:

• Their hip needs to come out.
• The longer the hip stays in, the more likely they suffer irreversible, permanent damage to the tissues around their hip.
• The longer revision surgery is put off the more fixed and difficult to remove the stem is and the more complicated and risky the revision surgery.

Unfortunately, many of these victims cannot afford multi-thousand dollar deductibles and weeks out of work. This is a terrible position in which to find oneself.

A quick Internet search revealed a very nice analyst report from 2010 regarding Stryker’s cash position. That year Stryker reported $3.4 billion in available net cash. The company could certainly afford to pay for these victims to have Stryker’s defective device removed from their bodies.

“Now I’ve been crying lately,

thinking about the world as it is

why must we go on hating,

why can’t we just live in bliss”

-Cat Stevens

‘Peace Train’

While I certainly share in the singer/songwriters desire for peace and am moved when I hear this song, it is the above passage from his song that too often jumps to the forefront of my mind in the current day and age.

A few days ago, I read of the poignant story about a child who was permanently brain damaged after he was struck by a line drive off a metal bat while he was playing in a Little League Baseball game in New Jersey.

One second he was pitching; the next second he had stopped breathing – and for the next 15-20 minutes his brain was deprived of oxygen.  Good Samaritans tried CPR until paramedics took over.  His life was saved, but the oxygen deprivation left the boy permanently brain damaged; a condition that leaves him unable to perform any functions of daily life on his own and one that will require full time care for as long as he lives.

Tragic.  Devastating.  Consult the thesaurus for synonyms, and all would apply here.

I was able to read this story, as I do most of the news stories I read now, online. But I also did something that I normally do not do, and that is, to continue on to the comment section to see what folks had to say about this sad story.

Appalling.  Nauseating.  Consult the thesaurus for synonyms, and all would apply here.

Fortunately, at the time I read the article, there were only 7 comments.

And here are some of the things that people – fellow human beings (although based upon what these people said that certainly is now debatable) – had to say:

• “the boy wasn’t fast enough to catch the ball …”
• “I feel bad for the kid, but that’s just sports …”
• “sorry for the kid, but that is sports …”
• “it’s sad that this boy was injured.  It’s more sad that the manufacturer and retailer settled and are paying out such a large sum of money.”

And while it is true that the focus of the story was the fact that the boy and his family received $14.5 million dollars in settlement of their lawsuit against the makers of the metal bat and the retail store that sold the metal bat, and while lawsuits as a topic in this current age of tort-reform mania no doubt elicits strong feelings, hate-filled comments such as these follow just about every on-line news story that appears.

Naturally, this is not an indictment of freedom of speech and an individual’s right to say what he is thinking.  Rather, this is the memorialization of a realization that dawns on me anew nearly every day -   we live in a world, and an age, filled with hate.  And the hate is intense, and the haters are vocal.  And the intensity of their hatred is increasing daily, and the legion of haters is  growing exponentially by the day too.

And while inside I weep when I read sad story after sad story, day after day, about misfortunes that befall our fellow human beings, I also weep for the state of our world.  A world that is consumed with hate, a hate so extant that people would actually feel more sorry for the manufacturers of a metal bat who settled a lawsuit than for a boy who is now permanently brain damaged, and have no reservations about saying so.

Many states have their vacancies for judges filled through a typical election. Candidates file, they campaign (to the extent they are ethically allowed), and the candidate with the most votes assumes the office of judge. That is the way we in Florida handle all judicial positions except those judges in the appellate courts and those who sit on the Florida Supreme Court.

Instead of running against another candidate, the justices stand for “merit retention”; as taht process is described in Article V, Section 10 of the Florida constitution. Sadly, although our constitution describes the way teh ballot will read for the justices:

“Shall Justice ___________________ of the Florida Supreme Court be retained in office?”

The Florida constitution does not go much beyond that in terms of instruction. So what is “merit retention”? The retention part seems fundamentally simple and straightforward, but what about the merit part? Following is a video by Attorney Patrick Quinlan, which I think does a great job with explaining the entire process and the related history of merit “elections” :

[youtube]http://www.youtube.com/watch?v=FW8IQ5ls6Oc[/youtube]

I wanted to go at it a little bit differently though, so I looked up the term “merit”:

The Free On-line Dictionary says that merit is “superior quality”, demonstrated ability”, and an aspect of character or behavior deserving approval”.

Webster says: “praiseworthy quality”, character or conduct deserving reward”, and “achievement”.

MacMillan says: “quality that someone has”, “the good qualities of someone”, and “something that makes you think someone is of value”.

Based upon the objective news reports about Justices Pariente, Lewis and Quince, it seems pretty obvious that these are judges that demonstrate ability, have acted ethically in their jobs and who have done a good job as that term is applied to people who work for you.

I have done it twice; once for under-grad and then again for my juris doctorate; also, I am at that age where I feel at liberty giving advice (don’t worry you will be here someday too).

Here is my advice as you head off to college.  You are, of course, free to disregard all of it, but I am hoping that you might remember at least one or two pieces of my advice.  Some of it will sound familiar; some of it will sound like your mom; and some of it will sound like no fun.

• Don’t get into a vehicle with someone who has been drinking or taking drugs. Not even once. Walking is great exercise or the cost of a taxi is well worth your life.
• Don’t sleep around. It’s beneath you. You will regret it and you can never regain your reputation.
• Stay away from balconies, roads, speeding cars and lakes, pools, hot tubs, etc if you have been drinking. None of those things mix well with alcohol. If you survive, the pain will not be worth the thrill.
• Be kinder and more understanding of those who are different from you. You might learn something, including tolerance and you may just earn a friend.
• Know that you will meet someone this week who will become a life-long friend. That’s a pretty cool upside to college.
• Study more than you want to and then study some more. You won’t regret it and there is much more time for fun than you think right now.
• Do something you’ve never done before- not like crack cocaine- like broomball.
• Expand your world. Be open to new experiences and people.
• Don’t forget to call home. Believe it or not, your family will miss you. Forgive them for crying this week. They have worked your whole life for this day, but it is absolutely heartbreaking for them in many ways that you won’t understand until you are the parent getting in your car to drive home without your child.
• Remember that you have a family who loves you and supports you and that you can always count on them- no matter how stupid the mistake. You might not necessarily want to test the limits of their love and patience, but believe me, they will understand and forgive if you do.
• You will be more homesick than you ever imagined. You will get through it.
• Learn new things, test yourself, make new friends, experience all you can (in a reasonable and intelligent way).
• Don’t ever forget your self worth. Don’t ever let anyone treat you poorly.
• Be kind to others and to yourself.
• Be patient with your roommate.
• Be honest in all your dealings. It is much easier to remember the truth than a lie.
• Go home once in a while and be grateful for what you have been given.

And, when you have done all of those things, choose a day and tell your parents, “Thank you” just out of the blue. If you remember to do that, you will have paid them back in some small way.

Believe that you truly are phenomenal!  Good luck!

The first hearing for the newly-created Pradaxa MDL has been scheduled for October 3, 2012, at 1:30 PM at the United States Courthouse in East St. Louis, Illinois.  On August 8, 2012, the Judicial Panel on Multi-District Litigation (JPML) granted the plaintiffs’ request for establishment of an MDL and assigned all of the pending Pradaxa personal injury and wrongful death cases to Judge David Herndon, who was overseeing the largest number of filed Pradaxa cases prior to the decision of the JPML. These cases are known as “tag-alongs” to the multi-district litigation.  MDL No. 2385, which is formally known as In Re: Pradaxa (Dabigatran Etexilate) Products Liability Litigation, includes individual lawsuits that were originally filed or removed to federal courts located in Florida, Oklahoma, Tennessee, Kentucky, Connecticut, Illinois, Ohio, New York, and Louisiana.  These Pradaxa lawsuits were filed against Boehringer Ingelheim Pharmaceuticals, Inc., Boehringer Ingelheim Corporation, Boehringer Ingelheim USA Corporation, and Boehringer Ingelheim Vetmedica, Inc.  In the future, when new Pradaxa cases are filed in the federal court system, they will be identified as potential tag-alongs to MDL No. 2385 and will be transferred from local federal courthouses to Judge Herndon’s courthouse in Southern Illinois by the Clerk for the Judicial Panel on Multi-District Litigation, which is based in Washington, DC and oversees dozens of pending MDL proceedings involving drug, medical device, environmental, consumer fraud, and other mass tort class action and individual claims.

Judge Herndon refused to stay the dozen or so Pradaxa cases pending before him when the request for an MDL was filed before the JPML.  At the first status conference held in mid-July, Judge Herndon made a number of important rulings with regard to document preservation, production of FDA-related documents (including the new drug application [NDA] and adverse event reports [AER] for Pradaxa), the format for production of corporate documents (the first wave of documents are expected to be produced before September 1^st), and issues relating to foreign defendants.  Those orders will remain in effect for now.

Boehringer Ingelheim also filed motion to dismiss these first-filed cases on various legal bases under Rule 12(b)(6) of the Federal Rules of Civil Procedure with assertions that the plaintiffs’ complaints failed to state a proper cause of action against Pradaxa’ s manufacturer for various reasons.  Those motions were fully briefed by the parties, and Boehringer’ s requests for dismissal were denied by the court in late July.

On August 17, 2012, Judge Herndon issued a series of orders on behalf of MDL 2385, which cover a number of threshold issues and will significantly expedite the litigation, including:

• Establishment of a master docket for filings that apply to all of the pending Pradaxa lawsuits;
• Filing procedures for new complaints, including prohibition against including more than one plaintiff in  complaint filed to initiate a new lawsuit;
• Requirement of attorney registration and use of the Court’s CM/ECF electronic filing system;
• Documents that need to be filed by attorneys for the parties in advance for the October 3^rd Status Conference;
• Requirement that plaintiffs’ attorneys with pending Pradaxa lawsuits meet and confer amongst themselves and with defense counsel with regard to dispositive motions; evidence preservation; privilege issues (such as HIPPA concerns, communications between defendants and plaintiffs’ medical providers, protection of Boehringer Ingelheim’s trade secrets, etc.); limits on discovery; and the timeframe within which fact discovery as well as expert witness discovery might be completed.
• Initial instructions regarding creation of a bellwether trial process to identify representative cases to be tried before the MDL judge in approximately 1 ½ to 2 years from now;
• Requirement of mediation of cases prior to scheduling for bellwether trial settings;
• Extensions on deadlines for Boehringer Ingelheim to answer complaints until after the October 3^rd hearing;
• Stay was issued until October 3^rd on most new discovery requests or disclosure requirements, as one of the next steps in the MDL process will be the establishment of uniform standards for discovery from plaintiffs (usually in the form of a Plaintiffs’ Fact Sheet which combines traditional interrogatories and a request to produce);
• Procedure implanted for preservation of testimony from a party who is ill and may not survive until the time when case-specific or generic depositions are begun in the MDL;
• Deadlines established for applications by plaintiffs’ counsel for appointment to serve as lead counsel or as a member of the plaintiffs’ steering committee who will be appointed by the Court after review of the application and an interview;
• Detailed instructions on preserving the confidential information that might be gathered during the course of the Pradaxa litigation, including trade secrets, protected health information, attorney/client privileged communications, and other sensitive information or data that is afforded special legal protections;
• Duty of all parties to preserve documents and information that might be discoverable in the litigation; and
• Protocols for the production of paper and electronic documents, databases, metadata, translations, and other important evidence.

Judge Herndon’s initial orders recognize the seriousness of the injuries sustained by the plaintiffs as well the need for the Pradaxa litigation to move as expeditiously as possible, especially in light of the advanced age of some of the injured plaintiffs.  Judge Herndon also noted that Boehringer Ingelheim has an interest in having trials occur quickly in the Pradaxa litigation, so that the drug manufacturer may assert its vigorous defenses in the Pradaxa litigation.  Prescribing physicians and the medical community as a whole were also noted as interested parties in the litigation.  Judge Herndon noted that he hoped to have the first trials in the Pradaxa MDL in approximately 18 to 24 months after the scheduling order is entered, which could occur as early as October.  This is a very fast pace for MDL litigation, but absolutely appropriate given the nature of the claims asserted by Pradaxa plaintiffs.

Our firm and its local counsel filed one of the first Pradaxa personal injury lawsuits against Boehringer Ingelheim in the Southern District of Illinois, which was assigned to Judge Herndon.  The lawyers at Searcy Denney supported the petition for establishment of the Pradaxa MDL before Judge Herndon, and have been involved in the national coordination of the litigation.  The firm represents a number of additional plaintiffs who have suffered catastrophic personal injuries or wrongful death due to GI bleeds, intracranial hemorrhage, or other harm caused by ingestion of Pradaxa, and intend to continue filing individual lawsuits against the manufacturers of Pradaxa in either the MDL or the coordinated state court venues available in California or Connecticut for Pradaxa victims in the coming months.

The citizens of the state of Florida should be permitted to elect our own public servants without interference from political, business or other forces OUTSIDE the state of Florida.

Seems simple, reasonable, right? I mean why should a lawyer from Atlanta, Georgia want to come down here and try to influence the election involving OUR Supreme Court Justices?

Why would a Kansas corporation like Koch Industries send BIG money down here to Florida to fund PAC’s and campaigns trying to influence Florida politics?

Why is Karl Rove and his PAC, American Crossroads, invading Florida with groups bearing a variety of very lofty sounding names for the purpose of swaying Florida voters to “his” way of thinking?

Why? Because they can. Because when the U.S. Supreme Court decided that corporations are people and money is the equivalent of free speech, business and conservatives saw an opportunity to seize upon.

Haven’t liberals and Democrats taken advantage of this new decision? These groups, as they will tell you, have trouble agreeing on where to have lunch. They are free thinkers who do not walk in “lock-step” with any specific ideology. So, they are always going to have a more difficult time forming up the necessary consistent dogma necessary to sustain a message.

In the judicial branch of the government, running for office has always had its share of dangers to attempts at influence peddling and candidates with entrenched ideology they carry on to the bench. I do not think there is any denying that happens, but when money is “free speech” influence can become a dangerous byproduct.

When all of us should be clamoring for campaign finance reform, a single court decision opens the moneyed flood gates by giving corporations “human identity” and labeling the all mighty dollar with the very powerful moniker of “free speech”.

As a judge who knows about these dangers said:

“Get actual facts out in front of the public, not a bunch of sound bites. Show how big money is being dumped into a particular race… Don’t let them hide behind corporate shields. They don’t want to do their dirty work in public.”

“If people (corporations) can throw enough money into judicial races and effectively elect justices and judges who are more interested in promoting some core part of their ideology or some particular special interest philosophy, they’re going to do that”.

During this election season, beware of candidates who have been endorsed by a myriad of political action committees (PAC’s) without any real purpose.

No matter who is saying it or how glitzy the presentation, check out the facts to your satisfaction.

Whether you are Democrat, Republican, Tea Partier or Independent, let’s really think through the choices we make this election season and not simply vote the “party line”.

Having been in the legal and insurance industry for 30 years now, I have reasonably good insight on what really does go on, but I can simply not help being surprised and disturbed by how far corporate America is willing to go.

Even when dealing with the health, life and death of human beings, it seems corporations and, in this case also doctors are willing to do almost anything to increase the profit line. According to the story in the Palm Beach Post we have a graphic example right here in our backyard; HCA Lawnwood allegedly performing unwarranted surgical procedures by its physicians to insert cardiac stents into patients who never needed them!

Motive? Profit driven.

Shocked? Well you shouldn’t be.

Frightened? Maybe we all should be.

Sadly, the only way we even know about these occurrences is because a Registered nurse, C.T. Tomlinson, had the courage to do the right thing and told the truth. What did he get for his courage when he told the management at HCA? You guessed it, he got his contract terminated and through HCA’s own internal documents we know that Mr. Tomlinson was retaliated against. I wish I could tell this is the only dirty little secret hidden by “the white code” in medicine. You would shudder to know how many people have died or were unnecessarily injured by bad medicine and no one was told the truth.

The medical community and insurance companies are fond of claiming that unnecessary tests and procedures are ordered because doctors fear lawsuits. The fact is they get paid for every test or procedure they order. Justifying it by claiming they are protecting themselves is simply a convenient route to the bottom line and increased profits.

Medical mistakes occurring because profit is an overriding motivation is much more common than people realize.  And realistically, the patient seldom has possession of their own medical records; so lost, misplaced and “amended” medical records also happen more than most people realize.

There is an unfortunate public mindset that medical errors happen to other people, but will never happen to us. It is when you or a loved one is harmed at the hands of bad, or profit driven medicine that it hits home.

In fact it was only 6 or 7 years ago that the Tenet Healthcare Corporation paid over $350 million for doing unnecessary heart surgeries in its Redding, California hospital.

So, we should be careful to not marginalize whistleblowers or medical practice lawyers who, at best are simply able to level the playing field by a mere fraction and then only for some victims.

As they say, absolute power corrupts absolutely. Thank goodness for brave nurses like C.T. Tomlinson and the majority of medical providers who are honest and use their amazing talents to save lives day in and day out. There is no doubt we need more of the type courage displayed by Nurse Tomlinson who has now helped saved lives, who knows, maybe yours or mine.

The New York Times has entered the Florida fray involving the merit retention race for Supreme Court Justices Pariente, Lewis and Quince. Their article, I think, sets forth the most succinct and accurate depiction of what has been happening in Florida’s merit retention race.

The concluding paragraph of the article contains perhaps the most chilling effects of what Tea Partiers and other groups are trying to accomplish:

“If the three justices lose their retention battle, it would give Mr. Scott three court vacancies to fill with his own judicial picks. It would also send a message of intimidation undermining judicial independence and impartiality — a price no Florida voter should be willing to pay.”

How have conservatives and Tea Party factions put Florida’s judicial system in danger? One of the things that certainly did not help is the fact that Justices Pariente, Lewis and Quince were so busy doing their jobs, they were “sloppy but innocuous” in using court staff to notarize documents needed to be filed with the Florida Division of elections in order to try and keep their jobs.

Although regularly done, the use of state personnel in campaigns is prohibited while they are in the employ of the state. So, governor Rick Scott seized upon the Justices innocuous use of court staff and ordered the Florida Department of Law Enforcement (FDLE) to investigate the conduct. The FDLE “found no evidence that the judges abused their official positions – a conclusion seconded by the Florida state attorney, Willie Meggs. In fact, the last Chief Justice and his present successor both reportedly used court staff for notarizing campaign documents in their 2010 merit retention race.

Tea Party conservatives and a “right-wing legal policy group based in Georgia” filed a lawsuit against the Florida Secretary of State and the three justices. After governor Scott’s efforts with the FDLE were not rewarded, he had this to say about the Georgia groups lawsuit:

““According to FDLE findings, it appears using state employees to complete and file campaign forms and other documents are ‘common practice.’ Now this case is before the courts where a determination will be made as to whether this ‘common practice’ is legal.”

Apparently although (2) State of Florida agencies investigated and found no wrongdoing on the part of Justices Pariente, Quince or Lewis, that was insufficient for the governor’s needs.

What else has spurred some on in efforts to remove these justices? The conservative groups, such as Restore Justice 2012 and others, are singling out decisions in which the justices voted in ways in which these groups have disagreement. For example, as the Times put it:

“…they are being singled out for various rulings, including a decision in 2010 that blocked from the ballot a misleadingly worded constitutional amendment designed to permit the state to opt out of national health care reform.”

Tea Party bosses have realized the amount of control they could have over judges and courts if they can send an appropriately chilling message “undermining judicial independence and impartiality” to judges across the State of Florida that they can be replaced for simply doing their jobs.