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Class Action

Common Mistakes Made by Personal Injury Victims

By | Bike Accidents, Car Accidents, Class Action, Personal Injury, Uncategorized | No Comments

Life is full of mistakes and this article will talk about common mistakes made by personal injury victims. The first mistake people make after they have been injured is believing the insurance adjuster and their claims. The reason you can’t believe the insurance adjuster is they have a duty to their insured. That duty means that they represent the person who caused the accident. They have to do what is in their client’s best interest. Put simply, it is in the best interest of the insured to pay as little as that as possible. If they can get you to accept $200,000 then that’s what’s best for their insured but not for you. Remember, it’s not that the adjuster is a bad person but our judicial system is adversarial. We believe that two sides competing to present their best information is going to get us closest to the truth.

The Second common mistake made by personal injury victims is believing the insurance company when they say that their insured did nothing wrong. Often times people hear this and decide to no longer pursue their cause of action. Remember who the adjuster owes a duty to, it for sure isn’t you. First and foremost it should be to their insureds. Second they have a duty to the insurance company and their shareholders. You don’t make the list.

The third common mistake made by personal injury victims is asking for too little in their initial demand. Your initial demand is going to set the ceiling for your recovery. It is likely not what the insurance is going to pay. In some cases your initial demand will be your cap and often times can hurt you in the long run. Through form 95 in the FTCA your initial demand is the cap that you can receive from a jury. You need room to negotiate with the insurance company. A low demand or a demand on where you think the case will settle for will eventually handicap you.

The fourth mistake people make is not getting an expert involved early enough in the case. Now experts are expensive but the majority of time your attorney will front the cost of the expert and will settle for being reimbursed the cost when the case closes. Experts are a key component of proving any case. The earlier you get an expert involved the more information you will have and the better odds you have of meeting your burden of proving your claim. Involving experts early will also allow them to investigate the scene of the accident before anything changes and gets them a much better idea of what actually happened the day the accident occurred.

Finally, the last mistake people make is not checking for all the available insurance coverages available to their client. Often times there are several different insurances that can apply to a case and even some defendants that you may not initially think should be involved. The most common mistake in car accidents is not looking into the insurance coverages that the injured individual has access to. Insurance like UIM coverage require technical knowledge to access that insurance and not every case applies but when it does it can be a very good avenue of insurance for the injured party.

 

The Opioid Crisis, Lobbying, and the Amicus Brief

By | Articles, Class Action, Personal Injury, Tort Reform, Uncategorized

Definition of opiate: a drug (such as morphine or codeine) containing or derived from opium and tending to induce sleep and alleviate pain. We are having an opioid crisis in America.

One of the most powerful lobbying groups in Washington is the U.S. Chamber of Commerce. Last year the Chamber spent over $100 million on federal lobbying.  However, the Chamber’s influence does not stop at lobbying congress. The Chamber also lobbies the courts through Amicus briefs. The goal is to avoid responsibility for the opioid crisis. Amicus briefs have become a favorite tool for lobbying groups across the country.  

Ohio was one of the first states to initiate lawsuits against major opioid manufacturers to combat the opioid crisis. Against Ohio, the manufacturers argued every defense under the sun to prevent themselves from taking responsibility for the opioid crisis in America. The amicus brief argued Primary jurisdiction, Preemption, and First and Fifth Amendment principles. The Primary jurisdiction argument is that the court does not have the authority to adjudicate the lawsuit. The Preemption argument is based on a hypothetical ending with the manufacturers being forced to commit heinous acts. And finally, the First and Fifth Amendment arguments proposed that drug manufacturers cannot be forbidden from fraudulently marketing. They want to be able to continue to fraudulently market to continue to push the opioid crisis.

Most of these arguments don’t pass the sniff test but that’s not really the point. Preemption was based on the FDA forcing manufacturer conduct.  The Chamber simultaneously argued that the FDA has limited powers and cannot oversee the manufacturers. The focus of these Amicus briefs is persistence. By persistence, I mean the same way a river is persistent against a rock. The arguments don’t need to make sense, they just need to muddy the waters. The goal of their Amicus brief is to make it impossible to sue drug manufacturers.

Opioid manufactures are persistent, in fact, so persistent that they’ve had a chilling affect on one case in particular.  Mr. Caltagirone is a man who was prescribed a fentanyl laced lollipop for migraines, but unfortunately, Mr. Caltagirone  became addicted. He went in and out of treatment, and eventually died from an accidental methadone toxicity. Prescribing fentanyl for migraines is a bit overzealous, it also sounds insane, and that’s because it is insane. Fentanyl is designed to provide relief for cancer patients in around the clock pain, not for migraines.

Mr. Caltagirone’s estate sued the manufacturer of Actiq for continuing to illegally conduct off-label promotion and in 2008, the manufacturer of the fentanyl laced lollopop  paid the government $425 million dollars as a settlement for off-label marketing. Unfortunately, this is business as usual, no one was forced to stop selling a product, and no one went to jail. The only punishment was a drop in the bucket fine. I’m not sure why, but the government doesn’t understand Economics. When someone makes a billion dollars profit, and only has to pay 40% of the profits back in fines, than there is no incentive to stop the immoral conduct.

According to the DEA, more than 6 million fentanyl prescriptions are dispensed each year. There are not 6 million cancer patients who meet the criteria for fentanyl. Most experts  estimate the need being closer to 3 million.  The trial court dismissed Mr. Caltagirone’s case and it is now on appeal.  The Chamber filed an amicus brief for the appeal in Pennsylvania. The Chamber’s amicus brief argued that Plaintiff’s attempt to enforce the FDCA through a state law tort claim stands as an obstacle to the FDA’s discretion and is preempted.  That precise argument is also being made by the opioid manufacturers in Ohio. The opioid manufacturers are attempting to stretch Buckman’s precedent into an all encompassing force field.  They want Buckman to protect all drug and medical device manufacturers from state tort claims, but so far it is not working. It’s no coincidence that the U.S. Chamber of Commerce is filing a brief in an individual drug death lawsuit that happens to support other arguments they are making across the country.
 
This isn’t the first time the Chamber has used this strategy to fight the opioid crisis. For years, the Chamber has filed amicus briefs with the purpose of narrowing the law. Their goal is to make it impossible to sue drug manufacturers responsible for this opioid crisis.  The last few years has seen a ramped up effort by the chamber. Now the Chamber seems particularly focused on thwarting arguments against opioid manufacturers. Most of the opioid lawsuits out there haven’t made it far enough to have these issues decided but If the drug industry is able to  use individual cases to stack the legal deck in their favor, governmental entities, and other individuals may never get a fair day in court.
 
 

 

Waiving your Right to the Court System

By | Class Action, Personal Injury, Tort Reform | No Comments

Arbitration Agreements

We’ve all seen arbitration agreements and I bet all of us have agreed to arbitration instead of exercising our rights to the court system but the question is why? Why as a society are we willing to give up our right to the court system? Why are we willing to give up the right to have juries/our peers judge our grievances and why are corporations so insistent on these arbitration clauses?

The most recent example of corporations asserting an arbitration clause in a massive way was Pokemon Go. Ever since Pokemon Go’s introduction to the public, people have started wandering around getting hurt, exposing themselves to crime, and finding dead bodies.

The law has had to evolve as society changes, and a host of legal issues have arisen that courts are just beginning to hash out. Look no further than the Match.com murder lawsuit and the Google Maps pedestrian accident case. If a Pokemon Go user is injured, or attacked, or lulled into trespassing, could there be liability? I don’t know. Nobody does. We can speculate generally about the companies liability, but the actual answers have to wait for our judicial system to catch up.

Maybe you’re thinking, only an idiot would get hurt playing Pokemon Go or these frivolous lawsuits are destroying America.I firmly believe you’re wrong but we can discuss that later. Right now reading this, are you so sure that you want to waive your right to use the court system forever?

Maybe you are. That’s fine. But bear in mind you’re not just waiving the right to sue over injuries, you’re also waiving the right to participate in class actions brought by others. If a service you’re using has all of your personal information stolen by hackers, and there’s a class action, you’re out of luck. If an app systematically cheats you on in-app purchases, and there’s a class action, you’re out of luck. Your only remedy is arbitration. Companies use arbitration clauses because there’s a risk of them being sued and being held responsible for something. They are afraid of a jury rightfully compensating the injured.

The moral of the story, is that you don’t want to cut off options open to you before you have to, it’s best to opt out of arbitration clauses whenever possible. Your future self might not care but it’s a risk that simply has no upside for those being asked to take it.