Yearly Archives: 2011

HOT COFFEE examines the dangers of so-called tort reform and its threat to our civil justice system. Using the now-infamous legal battle over a spilled cup of McDonald’s coffee as a springboard, the film follows four people whose lives have been affected by their inability to access the courts, and examines the role of corporations and a complicit media in promoting tort reform.
Is Justice Being Served?

“Seinfeld mocked it. Letterman ranked it in his top ten list”. And more than fifteen years later, its infamy continues. Everyone knows the McDonald’s coffee case. It has been routinely cited as an example of how citizens have taken advantage of America’s legal system, but is that a fair rendition of the facts? Hot Coffee reveals what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald’s, while exploring how and why the case garnered so much media attention, who funded the effort and to what end. After seeing this film, you will decide who really profited from spilling hot coffee.

Product liability cases are filed against drug companies to recover compensation for serious injuries and damages from dangerous prescription drugs. These lawsuits are based on the inadequacy of the written warnings (also referred to as the label or package insert) that come with the drug to warn the patient and prescribing physician of its risks and serious side effects. The lawsuits are premised on the principle that the drug companies have the duty not to injure the patient. Drug companies fulfill that duty when their drug’s warnings disclose all of the drug’s risks and serious side effects. Only then can the patient exercise their absolute right to know all of the risks and serious side effects of a drug before they take a drug. When the drug companies fail to fulfill that duty and serious injuries and harm result, the drug company must be held responsible and accountable.

Notice that I said the drug company must be held responsible and accountable. That litigation may or may not involve the doctor who prescribed the dangerous drug. At Bailey & Galyen, litigation against the drug companies rarely if ever involves the prescribing doctor. Prescribing doctors are not sued because they only know what the drug companies tell them. Fact is that the prescribing doctors know little more about a drugs risks and serious side effects than that, and the information they do have is solely from the drug company’s written warnings. So, if the warnings are inadequate, in all likelihood so is the doctor’s knowledge of the drugs risks and serious side effects. That effectively makes both the doctors as well as their patients the victims when their patients experience serious side effects that the drug company did not adequately warn about. To add insult to injury, when a lawsuit is filed the drug companies deny any responsibility of wrongdoing and blame both the injured patient and the prescribing doctor for the patients’™ injuries and damages. Here is an example of that language which drug companies regularly include in their defensive pleadings:

When the drug company takes the prescribing doctor’s deposition with hopes to prove that the doctor would not have done anything differently no matter what was in it’s warnings and not matter what the prescribing doctor knew, it is important to be clearly point out and emphasized to the prescribing doctor that his patient did not sue or make any allegations against him in the case against the drug company. The prescribing doctor must be shown in the drug company’s pleadings filed in the lawsuit the allegations against the prescribing doctor, stating that the prescribing doctor is responsible and at fault for his patient’s injuries and damages.

The drug companies further contend:
1. even if armed with this knowledge, it wouldn’t matter because the prescribing doctor already knew everything that a supposedly adequate warning would have contained;
2. that the prescribing doctor didn’t read the warnings and therefore a different warning wouldn’™t have changed the doctor’s decision to prescribe that drug for the patient; and
3. that even if at the time the prescribing doctor prescribed this dangerous drug to the patient he knew everything then that he has since learned about this drug, he still would have treated the plaintiff the very same way (by prescribing the drug).

To justify this position, the drug companies use the statistics of how many patients might experience a drug’s serious side effects. Drug companies take the callous position that all drugs have side effects, and it is acceptable if 1 in 10,000 patients experience a serious side effect from their drug because 9,999 people didn’t.

Putting the blame on another in a lawsuit is called alleging an affirmative defense. The affirmative defense states that if the drug company did something wrong (which it denies it did), someone else actually caused the patient’s injuries and damages. The drug company’s affirmative defense alleges that its warnings were accurate and complete and the prescribing doctor caused the patient’s injuries because the drug company passed on to the prescribing doctor all of the information that it had about the drug’™s risks and serious side effects, and it was the prescribing doctor’s responsibility to then pass that information on to the patient. That works fine if the drug company did make accurate and complete disclosure of all the drug’s risks and serious side effects in its warnings. In that event, the prescribing doctor would have been fully aware of the same and could have passed those warnings on to the patient. Most often however, that is not the case: The prescribing doctor knows only what they read in the drug company’s warnings.

The fact of the matter is that a prescribing doctor’s learning about a drug’™s risks and serious side effects does change his prescribing practices accordingly: It does affect which patients he prescribes the drug for, what doses he prescribes, what directions he gives for taking the drug, and the risk/benefit discussion the prescribing doctor has with the patient before prescribing the drug. It does change the patient’s decision whether or not to take the drug when the patient is aware of and weighs all known risks against the touted benefits of the drug.

The problem is multifold:
1. The FDA approves prescription drugs solely on the information it is provided by the drug company. The FDA does no testing; it is understaffed and underfunded. The FDA relies on the drug companies to test drugs for safety or effectiveness. If the drug company does not adequately test for safety or effectiveness and does not disclose all study results to the FDA, and the FDA approves the drug, it has done so on inaccurate and incomplete information.
2. The drug company warnings only include that which the FDA makes it include based on what the drug company tells it about the drug’s safety and effectiveness. If the drug company does not disclose all known risks and side effects to the FDA, the warnings will be inaccurate and incomplete
3. The drug company’s incentive is not to make accurate and complete disclosure of all known risks and serious side effects to the FDA and in its drug’s label. The reason: Doctors will be hesitant to prescribe it and patients will be hesitant to take it, and that reduction in prescriptions being written equates to a drop in the drug company’s revenue.

The solution is having the ability to hold the drug companies responsible and make them accountable for their failing to fulfill their duty to the patient to protect them from known risks and serious injuries.

The new tort reform banners proclaim that plaintiffs who lose civil trials should pay the attorneys fees and costs of the defendant. Mind you, they do not advocate that losing defendants also pay the winning plaintiffs’™ attorneys fees and costs. The one way, loser pays street is a sure dead end for justice and access to the courthouse.

A one way loser pays law would do nothing more than prevent individuals and small business owners from redressing civil wrongs in the courts. The risk of having to pay the other side’™s enormous legal fees and costs will prevent them for standing up for themselves. Sadly, that is exactly what loser pays laws are designed to do.

Loser pays severely harms small businesses by preventing them from filing lawsuits on past due accounts, breached contracts, partnership disputes, and the like. Unlike wealthy corporations, small business will not be able to afford the risk of losing at trial.

The fact is that taking a case to trial is no sure thing, not even for the best case. Lawyers cannot predict with any certainty whatsoever what a jury will do in any given case. Cases that were soundly based on the facts and the law are frequently lost in jury trials. The reason: The enormous amount of undue influence placed on Americans by tort reform groups, political candidates, corporations, and the like. Americans have been inundated with trial lawyer bashing and anti-plaintiff/anti-lawsuit rhetoric, little of which has any truth and are nothing more than wild, cleverly crafted stories.

When these very same Americans are called for jury duty, this undue influence that uses fear and threats to change public opinion morphs into jury tampering. Jurors bring to the courthouse and jury box their fears of doctors leaving the state if damages are not capped in malpractice cases, the cost of consumer goods rising from frivolous lawsuits, teachers quitting if parents are allowed to sue them (which cannot be done, anyway), the lose of jobs from lawsuits, and much more.

So when your state legislators seek to pass laws that make the losers pay the winner’™s legal fees and costs, see if for what it is: Corporate immunity. When corporate America wins, Americans’ access to the courthouse is blocked and we all loose.

In 30 years I have never filed a frivolous lawsuit, nor do I know any other trial lawyer who has. The reason is simple. It costs hundreds of dollars for the filing fees alone, followed by tens of thousands of dollars in costs for pre-trial preparation and trial and years of the attorneys’ and their support staffs’ time and efforts.

The devastating earthquake and resulting tsunami seriously damaged some of the Japanese nuclear power plants. Massive amounts of radiation leaked from the damaged reactors and will likely have affected thousands of people. However, the number of injured and the extent of their injuries may likely not be known for decades. The atmospheric risk to Americans on American soil from these leaks is very, very small, and likely non-existent.
What you may not know is that we Americans are exposed to radiation on a daily basis, right in our homes, at work, school and at play. We all generally know that we are exposed to radiation from medical diagnostic equipment such as X-Rays and mammograms. What most Americans do not know is that we are exposed to radiation from common, household and work-place items. The FDA lists the following non-medical products and procedures as being regulated for radiation emission:
Cell Phones
Compact Fluorescent Lamps (CFLs)
Laser Light Shows
Lasers – Non-medical devices, including Industrial, Scientific, and Consumer Laser equipment, Laser Light Shows, and Laser Pointers
Microwave Ovens
Security Systems
Sunlamps and Sunlamp Products (Tanning Beds/Booths)
Televisions and Video Display Monitors
It makes sense that even frequently repeated exposures at very low doses can cause injury. We know radiation can cause an array of injuries from serious skin irritation, to severe burns and cancer. We do not know how much radiation exposure we are receiving from these products, and what that exposure will mean in terms of bodily injuries. Intense, close exposure will result in a burning of the skin. Prolonged exposure at lower levels may produce tumors after a 20 30 year period (latency period). As with pharmaceutical and medical device product liability litigation, litigation over injuries sustained as a result of exposure to radiation emitting products will require scientific evidence that unequivocally demonstrates a least a doubling of the risk of injury from these products. Further, it is unlikely that such scientific evidence exists for all radiation emitting products and whether the product warnings at the time of exposure were sufficiently detailed and specific at the time of the radiation exposure to warn of their potential for serious injury.
Think about this: We are all exposed to a number of these low radiation emission products multiple times if not constantly – throughout the day. We likely will not know we have suffered an injury for the entire 20 30 year latency period. The law will make it our responsibility to read the warning labels on these products and do our part to avoid injury. We would be well advised to read warnings, check radiation emission levels of the products we use every day, and reduce the risk as much as possible. That could mean not using or at least reducing the use of cell phones, microwave ovens, security systems, and televisions. That likely will not happen, and would result in a whole host of immediate social and psychological injuries. You might say we are damaged if we do and damaged if we don’t.