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Woman gets $5.2M settlement for injuries caused by driver using cell phone
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A woman in Georgia won a $5.2 million settlement from a paper company whose employee caused an accident while talking on a company cell phone.
The collision pushed the victim’s car onto its side, and pinned her arm between the road and the car. Her injuries required multiple surgeries, skin grafts and muscle harvests in an attempt to save her arm. The procedures failed and doctors were forced to amputate almost up to her shoulder.
Settlement negotiations focused on whether the driver was actually on the phone at the time of the accident. The defense maintained the driver hung up her phone before getting on the highway. A passing truck driver, however, refuted that claim.
An expert witness testified that the driver’s lack of memory of the last mile of travel before the accident occurred is a common feature of the phenomenon
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of “inattention blindness” caused by cell phone use. He also testified that cell phone users are more impaired while talking than while driving under the influence of alcohol.
The cell phone element was essential to winning a larger settlement because Georgia has a state law that prohibits “excessive distraction” while driving. Also, the driver’s employer requires its employees to use hands-free headsets while driving, and the driver did not do so at the time of the accident.
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Cervical cancer vaccine may lead to lawsuits
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Deaths and other bad reactions to the new cervical cancer vaccine may lead to lawsuits against its manufacturer.
A number of states have mandated Merck’s vaccine Gardasil be administered to school-aged girls. Designed to protect women between ages 9 and 26 from the human papillomavirus (HPV), which can cause cervical cancer, the vaccine has been controversial. Some have called for mandatory application, prompting criticism that it will encourage promiscuous sex in young girls.
Documents obtained from the U.S. Food and Drug Administration detail more than 3,000 reports of adverse reactions since Gardasil was approved – ranging from minor side effects such as nausea and dizziness to more serious problems like seizures, miscarriage, paralysis and death. The side effects announced by
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Merck include flu-like symptoms, fainting, nausea and dizziness.
According to the National Conference of State Legislatures, at least 17 states have enacted legislation to require, fund or educate the public about the HPV vaccine, and in 2007 at least 24 states and the District of Columbia introduced legislation specifically mandating the HPV vaccine be required for students (California and Maryland later withdrew their bills).
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Cancer victim wins $27M in hormone replacement lawsuit
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A woman who developed breast cancer after using a combination of the hormone replacement drugs Prempro and Premarin won $27 million from the drugs’ producer, Wyeth Pharmaceuticals.
The lawsuit also named Upjohn Co., which manufactures a similar product called Provera.
Donna Scroggin of Little Rock, Ark., was diagnosed with breast cancer in 2000 after using Provera, Prempro, and combination therapy over several years to treat the symptoms of menopause. After being diagnosed with invasive cancer in both breasts, she underwent chemotherapy and a double mastectomy.
She filed a lawsuit after the Women’s Health
Initiative issued its watershed study in 2002 that concluded women who took the estrogen-progestin combination
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faced a 24 percent higher risk of developing breast cancer.
The woman’s lawyer presented evidence that Wyeth concealed the risks the medication posed to patients, and that the label was confusing to her physician.
This case marks the second case in less than a year that Wyeth has lost a lawsuit over the Premarin/Prempro combination. In October 2007, a Nevada jury awarded $134.5 million to three Reno women who claimed the drugs caused their breast cancer. That award has since been cut to $58 million. Wyeth has lost four of the seven Prempro cases that have gone to trial since 2006 and there are nearly 7,000 cases still pending.
More than 6 million women have taken the medication.
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Lawsuits target cholesterol drugs
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A wave of lawsuits filed in the wake of a recent study accuses Merck and Schering-Plough of grossly overpricing their Vytorin and Zetia cholesterol medications, and covering up findings that the drugs were no more effective than lower-priced generics.
Marketed jointly by Merck and Schering-Plough, Vytorin is a composite of Schering-Plough’s Zetia and Merck’s Zocor, which is now available as a low-priced generic.
A study released by the companies showed Vytorin is no more effective than the generic form of Zocor in reducing plaque buildup in arteries. Also, it’s only slightly more effective than the generic drug in reducing LDL – “bad cholesterol” – levels.
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Fueled by the study’s findings, a flurry of lawsuits have been filed in federal courts in 15 states and some 5,000 potential clients have made inquiries about filing a lawsuit.
The consumer fraud lawsuits accuse the drug companies of misleading consumers about the effectiveness of Vytorin versus Zetia. They also allege that Merck and Schering-Plough deliberately delayed the release of the study for nearly two years. The results were eventually made public only after pressure from Congress.
Additional lawsuits involving other cholesterol drugs are expected in light of recent studies questioning their effectiveness in preventing heart-related injuries and deaths.
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Autism settlement adds new fuel to vaccine debate
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The recent disclosure that the federal government quietly resolved a Georgia couple’s claim that vaccinations caused their daughter’s autism has reignited an intense debate about the safety of the National Vaccine Program.
At present, no scientific evidence of a link between vaccinations and autism exists, and researchers continue to publish reports supporting that position.
But thousands of families and their lawyers remain unconvinced and news of the settlement seemed to confirm their suspicions. It implies a connection between vaccinations and autism, although the exact nature of the link is subject to interpretation.
However, the director of the Centers for Disease Control, in commenting on the settlement, said “the government has made absolutely no statement indicating that vaccines are a cause of autism ... That is a complete mischaracterization of the findings of the case and a complete mischaracterization of the science that we have at our disposal today.”
The lawyer who represented the
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family called the director’s comments “semantics.”
This was one of three test cases set for hearings before the U.S. Court of Federal Claims’ Vaccine Court, which has launched an “Omnibus Autism Proceeding” to gather testimony to determine whether vaccinations contribute to autism.
More than 4,900 families with autistic children are seeking compensation from the court, which was created by Congress in 1986 to resolve claims by those who may have been injured by vaccinations.
In December 2007, a court in Maryland issued the broadest rejection to date of the science purporting to establish the vaccine/autism link. The judge excluded testimony from a family’s expert on the evidence of a link, saying it didn’t meet the test for admissibility of scientific evidence. The ruling was the fourth in the last two years to reject expert witnesses in cases involving thimerisol, the vaccination at issue.
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DNA testing can help win toxic tort cases
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People suing over exposure to chemicals and toxins may soon be able to use DNA testing to prove they have been exposed and suffered injuries because of it.
With objective, scientific testing that can determine with near-100 percent accuracy whether someone has been exposed to a harmful toxin or chemical, long court battles may become unnecessary and settlements more frequent.
The testing would be most useful in toxic tort, workers’ compensation and environmental injury cases.
Current scientific studies are often ambiguous as to whether an individual has been exposed to chemicals or toxins, and whether symptoms are related to that exposure.
But DNA testing, which is even more accurate than what’s used in criminal cases, looks for tiny proteins produced by a person’s DNA when they have been exposed to harmful substances.
Presently, an individual test costs $12,500, but the cost is expected to decline as the technology used for the testing continues to improve.
DNA testing is no silver bullet. Even if an individual proves toxic exposure, the test can be challenged in court. Some toxins remain in the body for years without causing any harm, so victims who may have been exposed in multiple
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places may still have to establish where and by whom they were injured.
Another concern is that no federal law prohibits genetic discrimination that could result if the testing finds a person has a genetic condition. The fear is that employers could use the tests to screen out potential applicants, determine whether they have already been exposed to a toxin, might be genetically predisposed to a certain illness, or create a baseline at hiring in case a worker is later injured.
Testing later in the employment period could lead to termination if an employer felt an employee’s toxin levels were too high or not safe.
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Report drives home argument in rollover cases
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A new study bolsters a key claim by individuals injured in vehicle rollover cases – that weak roofs are the main cause of death and serious injuries.
The study, conducted by the Insurance Institute for Highway Safety, found that the stronger a roof, the lower the risk of injury to occupants of a vehicle.
However, auto makers will likely challenge the admissibility of the study findings in specific cases. They would argue that the study’s statistical findings are irrelevant – especially if the case involves a type of vehicle not part of the study. They will also say the study is flawed because it didn’t control for unbelted or ejected occupants.
Auto makers also argue typically an occupant of a vehicle that’s rolling over is injured by the downward force before a roof could impact the occupant.
The study looked at 11 mid-sized SUVs, including Jeep Grand Cherokee, Nissan Xterra, Chevrolet Blazer, Dodge Durango, Ford Explorer, Toyota 4Runner, and Mitsubishi Montero. Researchers tested them by measuring the amount of force required to crush the roof two inches and 10 inches, taking into account a vehicle’s weight. Under current safety standards, a vehicle must support 1.5
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times its weight.
The study found that the 2000-04 Nissan Xterra had one of the strongest roofs, withstanding a force of 2.93 times its weight for its 4-door model and 3.16 times its weight for its 2-door, at 5 inches of crush. The Jeep Grand Cherokee had the worst results, supporting 1.64 times the weight of its 4-door model and 1.72 times the weight of its 2-door.
The study also analyzed about 23,000 real-world rollovers in accidents involving the same 11 model types in 12 states. The study found that at each measure of crush, there was a consistent relationship between roof strength and injury risk.
The federal government is currently considering a proposal that would require a vehicle roof to support 2.5 times the vehicle’s weight. The current standard – unchanged since 1971 – is 1.5 times the car’s weight.
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This newsletter is designed to keep you up-to-date with changes in the law. For help with these or any other legal issues, please call our firm today.
The information in this newsletter is intended solely for your information. It does not constitute legal advice, and it should not be relied on without a discussion of your specific situation with an attorney.
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