#masstortcases

In a personal injury claim, a medical malpractice lawsuit, or a mass tort case, medical records serve as valuable evidence as well as an initial review of the case. These documents form the basis of the legal strategy, the client’s claims, and even the pre-trial settlement. Nonetheless, these documents are complicated to review as they are written in a complex manner which legal practitioners are not trained in.

Attorneys make errors not only because the documents are difficult to interpret, but also because of a lack of experience, which oftentimes results in an ineffectual case, undue delays, or loss of the case. The following are five mistakes that can occur while reviewing medical records and the steps one can take to prevent them.

1. Failing to Obtain Complete Medical Records

The failure to get complete medical records is one of the most serious issues associated with attorneys. Without any context, it is incomprehensible to understand a client’s medical background and the injury suffered. If documents, like the physicians’ notes, tests, operations, or rehabilitation records, are not included, it might result in a weakened claim.

How to Avoid It:

Request all other physician notes, imaging reports, and prescriptions alongside medical records to form a complete set.

Make sure all specialists and other treatment facilities have also provided their records.

Subpoena if it is necessary to provide the missing documentation.

2. Misinterpreting Medical Terminology and Jargon

Medical records consist of a plethora of words and symbols that may boggle the mind of a person lacking a medical background. Without the context of the situation, it is easy to mix up the meaning of such words, especially when it comes to a patient’s injuries and therapies. Not classifying such evidence logically can result in adversities in legal situations.

How to Avoid It:

Partners with medical professionals or medical record review specialists who will summarize the records adequately while maintaining accuracy in the findings.

Online and offline medical dictionaries can be referenced to explain sophisticated words.

Setting aside money for medical record examining services may prove to be beneficial by increasing the efficiency of appraisal.

3. Overlooking Pre-Existing Conditions

Attorneys sometimes seem to mix the incidents that harmed the client and pre-existing factors. Claiming the case in such a situation is like shooting oneself in the foot, for it is easy to get rebutted by the opposition attorney or even an insurance company self-defaming a case.

How to Avoid It:

Spend a good few hours analyzing previous medical issues, claiming distinctiveness with the newer problems.

In gaining and deepening factors behind the impact and exasperation of the previously faced issue, medical professionals may provide valuable aid.

Every incident is unique and has some differences in nature. Thus, appropriate and concrete reasons should be derived from the doctor confirming an impact causing a shift.

4. Ignoring Gaps in Treatment

Failure to receive medical treatment is one of the indicators that insurance companies and defense attorneys may use to claim that the complainant’s injuries were either non-existent or unrelated to the claim event. Even worse, these gaps are sometimes left unchecked, which can unravel an otherwise solid case.

How to Avoid It:

Find out if there are any treatment gaps and seek explanations from the clients.

Request for a professional’s assessment of the potential impact of the gaps on the prognosis or injury progression.

Emphasize the clients’ receiving continual care as proof of the legitimacy of the claims.

5. Not Organizing and Summarizing Records Effectively

Most medical files are highly detailed, which makes them easy to misplace and difficult to use if they are not properly sorted. As a result, when attorneys do not organize and summarize the records well, they may be at a disadvantage when presenting evidence during settlement negotiations or in court.

How to Avoid It:

Prepare an organized medical chronological order to map the order of events and treatments received.

Use a professionally trained medical record reviewer to summarize the files into understandable short briefs.

You should highlight important medical history, treatment details, and expert opinions.

Conclusion

Medical record review is an essential element that is necessary in personal injury and medical malpractice cases, and so are these mistakes. Attorneys who gather these records and determine the meaning of the medical information while adequately organizing their findings are in a better position to represent their clients.

For medical records review, it would be advisable to consult people who deal with medical-legal casework. They would be able to assist in providing better accuracy and effectiveness for winning a case.

Need Help Reviewing Medical Records? Contact us today to streamline your case preparation and maximize your chances of success!

📞 +15302400250

📧 [email protected]

  Manufacturers are used to defending strict product liability actions when plaintiffs claim that their products are defective. But in the opioid litigation, plaintiffs have filed something else: more than 2,500 public nuisance cases so far. Governmental entities across the country are filing suits alleging that opioid manufacturers deceptively marketed their legal, opioid-based pain medications to understate the medication’s addictive qualities and to overstate its effectiveness in treating pain. In addition, plaintiffs allege that opioid distributors failed to properly monitor how frequently the medication was prescribed and failed to stop filling prescription orders from known “pill mills.” The complaints claim that manufacturer defendants’ deceptive marketing schemes and distributor defendants’ failure to monitor led more people to become addicted to painkillers, which led to people turning to illegal opioids. The legal argument here is that the defendants’ actions in concert interfered with an alleged public right against unwarranted illness and addition. But is public nuisance law likely to be a successful avenue for prosecuting these types of mass tort claims? It has not been in the past. This is the first of two posts that will address how plaintiffs have historically used public nuisance law to prosecute mass tort claims and how the plaintiffs in the current opioid litigation may fare. Overview of Public Nuisance Law In most states, a public nuisance is “an unreasonable interference with a right common to the general public.” This definition is often broken down into four elements: (1) the defendant’s affirmative conduct caused (2) an unreasonable interference (3) with a right common to the general public (4) that is abatable. Courts have interpreted these elements in different ways. For example, courts in Rhode Island and California have disagreed about when a public nuisance is abatable: the Rhode Island Supreme Court held that this element is satisfied only if the defendant had control over what caused the nuisance when the injury occurred, while the a California Court of Appeal held that the plaintiff need not prove this element at all. And while the federal district court in Ohio handling the opioid multidistrict litigation (MDL) has held that the right to be free from unwarranted addiction is a public right, the Supreme Court of Illinois held that the right to be “free from unreasonable jeopardy to health” is a private right and cannot be the basis of a public nuisance claim. Roots of Public Nuisance Law in Mass Tort Cases Plaintiffs litigating mass tort cases have turned to public nuisance law over the past decades. In the 1980s and 1990s, plaintiffs unsuccessfully attempted to use it to hold asbestos manufacturers liable. In one case, plaintiffs alleged that defendants created a nuisance by producing an asbestos-laced product that caused major health repercussions for a portion of the population. Plaintiffs argued that North Dakota nuisance law did not require defendants to have the asbestos-laced products within their control when the injury to the consumer occurred. Explicitly rejecting this theory, the Eighth Circuit held that North Dakota nuisance law required the defendant to have control over the product and found that defendant in the case before it did not have control over the asbestos-laced products because when the injury occurred, the products had already been distributed to consumers. The Eighth Circuit warned that broadening nuisance law to encompass these claims “would in effect totally rewrite” tort law, morphing nuisance law into “a monster that would devour in one gulp the entire law of tort.” Later, 46 states sued tobacco manufacturers using a public nuisance theory and settled those cases. Plaintiffs then sued gun manufacturers to recover the costs of gun crimes, alleging that defendants were selling firearms when they knew or should have known that the firearms would be possessed or used illegally. Plaintiffs essentially argued that gun manufacturers should have been more aware of weapons regulations state-to-state to ensure that their customers were purchasing guns in compliance with local laws. Like the asbestos suits, the vast majority of these suits failed because defendants did not have control over the guns—either because third parties illegally resold the weapons or the shooter acted criminally—and because courts held that the right to be free from unreasonable jeopardy to health is not a public right. Fast forward to the new millennium, when governments filed public nuisance suits against lead paint manufacturers in New Jersey, Missouri, Rhode Island, Illinois, and California. These cases—except for a California Court of Appeal—held that public nuisance law is not the proper avenue for vindicating mass tort actions. The New Jersey Supreme Court cautioned that allowing these claims to proceed would “stretch the concept of public nuisance far beyond recognition and . . . create a new and entirely unbounded tort antithetical to the meaning and inherent theoretical limitations of the tort of public nuisance.” The Rhode Island Supreme Court held that plaintiffs had failed to identify a public right, stating that for something to be a public right, the possibility of injury must be to the public generally—like interference with an indivisible resource like air or water. Like the Illinois Supreme Court in Beretta U.S.A. Corp., the Rhode Island Supreme Court found that the right not to be poisoned by lead in private homes was a private right because lead did not have the potential to injure the public at large, reaffirming that a public right is more than just an aggregation of a large number of injured people’s private rights. The California Court of Appeal, on the other hand, held that plaintiffs had satisfied all elements of a public nuisance claim in their lead-based paint action. The court held that, by actively promoting lead-based paints for interior use, defendants’ actions were a “substantial factor in bringing about” the alleged injuries, which demonstrated causation. The court also found that the collective social interest in the safety of children in private homes is a public right, and by promoting lead-based paints, defendants interfered with that public right. Although history would suggest that plaintiffs ultimately will not succeed in their public nuisance actions against opioid manufacturers and distributors, several trial courts recently have ruled in favor of plaintiffs. In October 2019, four pharmaceutical companies settled for $260 million dollars in the Ohio MDL. One month later, an Oklahoma trial court entered a $465 million dollar judgment against opioid manufacturer Johnson & Johnson on a public nuisance theory of liability. And most recently, in January 2020, the MDL judge denied the distributor defendants’ motion for summary judgment, finding that the plaintiffs had set forth evidence that the distributor defendants’ monitoring systems were not reliable. Johnson & Johnson has already announced its intention to appeal the Oklahoma court’s ruling. To learn more about this issue, stay tuned for our second post, which will analyze the challenges that public nuisance law presents for the current opioid litigation.

Restatement (Second) of Torts § 821B (1979). State v. Lead Indus. Ass’n, Inc., 951 A.2d 428, 455 (R.I. 2008); People v. ConAgra Grocery Prod. Co., 17 Cal. App. 5th 51, 109 (2017). In re Nat’l Prescription Opiate Litig., No. 1:17-MD-02804, 2019 WL 2468267, at *30-32 (N.D. Ohio Apr. 1, 2019), report and recommendation adopted in part, rejected in part, No. 1:17-MD-2804, 2019 WL 3737023 (N.D. Ohio June 13, 2019). City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1114-15 (Ill. 2004). See, e.g., City of Manchester v. Nat’l Gypsum Co., 637 F. Supp. 646, 656 (D.R.I. 1986); Warren Consol. Schs. v. W.R. Grace & Co., 518 N.W.2d 508, 511 (Mich. Ct. App. 1994) Tioga Pub. Sch. Dist. No. 15 v. U.S. Gypsum Co., 984 F.2d 915, 920-22 (8th Cir. 1993). Beretta U.S.A. Corp., 821 N.E.2d at 1107-08. In re Lead Paint Litig., 924 A.2d 484, 494 (N.J. 2007) Lead Indus. Ass’n, 951 A.2d at 447-48. ConAgra Grocery Prods., 17 Cal. App. 5th at 163-64. Id. at 101-02, 104. Id. at 111-12.

The juries in two separate cases pending against DuPont in the U.S. District Court in Columbus, OH came to different conclusions last week. Both cases were brought by plaintiffs who alleged that their cancers were caused by drinking water contaminated with per- and polyfluoroalkyl chemicals that leaked from DuPont’s Washington Works plant in Parkersburg, WV; these chemicals are also known as “forever chemicals” or “PFAs” because of the length of time they exist in nature without breaking down. In the first case brought by Travis and Julie Abbott, the jury awarded $50 million in compensatory damages, the largest such award to date against DuPont in these types of cases. Mr. Abbott claimed that his testicular cancer was caused by his exposure to C8 or PFOA, a chemical used to make Teflon that was manufactured in DuPont’s Washington Works plant in West Virginia. Although the jury awarded the plaintiffs’ compensatory damages they did not find the company acted with malice and elected to award no punitive damages. DuPont has stated that the jury decision not to award punitive damages supported the company’s position that at no time did it act with conscious disregard for the people living near the Parkersburg plant. There has been extensive litigation involving this plant and this same chemical dating back to 1998 when a local family sued DuPont for the loss of cattle who had been grazing near a PFOA-contaminated landfill. This lawsuit revealed information that led to DuPont reaching a 2005 $16.5 million settlement with the E.P.A. for the largest civil administrative penalty under any federal environmental statute at that time; DuPont also settled a 2001 class action filed on behalf of 80,000 residents living in areas surrounding the Washington Works plant where DuPont’s “forever chemicals” had leaked into local water supplies. This action was resolved in 2005 with DuPont agreeing to pay $70 million (up to $235 million if necessary) to be used toward medical monitoring for 70,000 people who lived in six water districts around the Parkersburg plant.  There was also an MDL filed on behalf of 3550 plaintiffs with personal injury claims related to PFOA exposure that was settled in 2017 for $670 million. The jury in the second case brought by Angie and Teddy Swartz was deadlocked and unable to reach a verdict; the Swartzes were seeking $11.5 million in damages, alleging that Ms. Swartz’ kidney cancer was caused by her exposure to DuPont’s PFAs. The case is currently awaiting a new trial. DuPont has announced it plans to appeal the verdict in the Abbott case. Click on this link for information on Verus’ Mass Tort Services. To contact us, fill out this form or email us at [email protected] and we will reply immediately. |CONTACT US| |REQUEST PROPOSAL|

Manager of Research Services

609-466-0427 As the Manager of Research Services at Verus, Kim uses both historical documents and current analysis to conduct ongoing research into the products and exposure sites for each of the Trusts administered by Verus. MORE

  Cannabidiol (CBD) is a naturally occurring compound derived from the hemp plant, a member of the cannabis family. Because CBD is also found in the marijuana plant (a cousin of hemp), its use fell into a legal gray area until recently. In December 2018, however, Congress passed the Farm Bill and legalized hemp and hemp-derived products. CBD products since have skyrocketed in popularity, with analysts projecting that CBD will grow to a $16 billion industry in five years. CBD product manufacturers and retailers across America are working to meet the high demand for their goods. The new popularity of CBD has brought attention from the U.S. Food and Drug Administration (FDA) and consumer plaintiffs. CBD product manufacturers and distributors are now facing claims that resemble the types of lawsuits that other product manufacturers and retailers face. CBD product manufacturers should stay up-to-date as to how the FDA is regulating CBD and how consumers are using tried-and-true product liability theories to sue CBD product manufacturers and distributors. The FDA’s Initial Actions While the FDA has not yet released formal regulations with respect to CBD, it has published consumer updates and an FAQ concerning CBD products. In its consumer update, the FDA cautioned manufacturers that it is currently illegal to market CBD products as a dietary supplement. The FDA also stated that it does not recognize that CBD is safe for use in human or animal food. Even with these strict guidelines, the FDA has not taken significant disciplinary action against CBD product manufacturers or retailers. Rather, it has issued only warning letters to online CBD product retailers. Specifically, the FDA warned that introduction of CBD products into interstate commerce violates the Federal Food, Drug, and Cosmetic Act. The FDA further advised retailers to stop marketing CBD products as ways to treat diseases or for therapeutic uses for humans and animals. It also reprimanded at least one online retailer to stop marketing CBD products with unsubstantiated health claims or for use as dietary supplements. New Product, Same Types of Lawsuits The latest lawsuits against CBD product manufacturers allege that products have been mislabeled. These claims resemble those made against many manufacturers of popular products. The maker of Muscle Milk, for example, was sued in a class action where the plaintiffs argue that the amount of protein in its protein powder was significantly less than the label suggested. And the Hershey Company recently won a suit where the plaintiff alleged that the company engaged in false and misleading labeling because malic acid was present in chocolate products labeled as having “no artificial flavors.” In the past six months, consumers have brought at least four suits against CBD product manufacturers, none of which has been certified yet as a class. In the Southern District of Florida, a plaintiff claimed that the defendants sold products containing significantly less CBD than the label stated. In the Northern District of Illinois, another plaintiff brought a class action after traces of THC were found in his system. After eating gummy candies labeled “NO THC,” the named plaintiff failed an employment drug test and was subsequently fired from his job. He sued the manufacturer, arguing that the company violated state consumer fraud laws by representing that there was no THC in its products. Follow Future Litigation Results CBD product retailers and manufacturers should keep an eye out for changes in the regulatory landscape and the results of pending litigation. Last year, the FDA held a public hearing to obtain data about the safety, manufacturing, product quality, and labeling of products containing CBD. Until the FDA releases further guidelines, titans like Ben & Jerry’s have pressed pause on releasing CBD products. Retailers and manufacturers should also stay updated on current litigation. While the FDA’s delay in creating a formal regulatory framework has frustrated many manufacturers, at least one manufacturer has tried to use the lack of federal regulations as a temporary shield against liability. In the Southern District of Florida, the CBD product manufacturer argued that the court should stay court proceedings until the FDA has promulgated regulations, allowing the FDA to have the first word on the regulatory scheme. Only time will tell whether this argument will prove effective when applied to suits that involve CBD products.

Class Action Complaint, Clay et al., v Cytosport, Inc., No. 15-cv-00165-L-AGS (S.D. Cal.  Jan. 23, 2015), ECF No. 1. Judgment, Clark v. Hershey Co., 18-cv-06113 (N.D. Cal. Nov. 15, 2019), ECF No. 132. Class Action Complaint at 13, Potter v. Potnetwork Holdings, Inc. et al., 19-cv-24017 (S.D. Fla. Sept. 27, 2019), ECF No. 1. Class Action Complaint at 8–9, Darrow v. Just Brands USA, Inc. et al., 19-cv-07079 (N.D. Ill. Oct. 28, 2019), ECF 1. Defendant’s Motion to Dismiss or, in the Alternative, to Stay, Potter, No. 19-cv-24017, ECF No. 26.

Home

Daily News

Google parent company’s top lawyer leaving…

Corporate Law

By Amanda Robert

January 13, 2020, 9:39 am CST

Image from Shutterstock.com.

The chief legal officer of Google’s parent company, Alphabet, who recently came under fire for his relationships with women who worked at the company, announced Friday that he will retire at the end of the month. David Drummond connected his exit to the December departure of Google co-founders Larry Page and Sergey Brin, writing in an email sent to employees that “the company is entering an exciting new phase, and I believe that it’s also the right time for me to make way for the next generation of leaders.” The New York Times, Bloomberg, Washington Post and CNN have coverage. Drummond joined Google in 2002 and became its first general counsel. He moved to Alphabet in 2015, after Google created the holding company and became one of its subsidiaries. He played a key role in landmark decisions, including Google’s exit from China, and oversaw its acquisitions of Android and YouTube. In August, former Google attorney Jennifer Blakely wrote in an essay on Medium that she had a longtime affair with Drummond. Shortly after they had a child together, she said she was moved from the legal department and abandoned by Drummond. Blakely also accused Drummond of having extramarital affairs with other women at the company, a claim that has been further investigated by a law firm that Alphabet’s board hired to examine its handling of allegations of sexual misconduct by company executives, according to documents obtained by the New York Times. Drummond said then he never started a relationship with “anyone else who was working at Google or Alphabet,” the New York Times said, but he recently married another woman from Google’s legal department. Thousands of Google employees worldwide protested in November 2018 after former executive and Android creator Andy Rubin reportedly received a $90 million pay package, despite allegations of sexual harassment. Some shareholders have sued over payments to Rubin and other executives accused of having inappropriate relationships with employees. Alphabet spokesperson Jenn Kaiser told the Washington Post that Drummond will not receive a pay package. He was paid $47.3 million in total compensation in 2018 and sold more than $200 million worth of Alphabet stock in the past year, the Washington Post also reports. See also: ABA Journal: “Google ends mandatory arbitration of workplace disputes and ban on employee class actions”

The increasing number of dangerous, defective and deadly products being marketed to the American consumer continues to have a significant impact on our health and welfare. Property casualty insurance advisors continue to add exclusions even as they push corporations to increase coverage for product liability, noting adequate product liability insurance is not just for manufacturers. Under the law, any entity involved in the supply chain of a defective product, including suppliers, retailers and distributors, can be held liable for injury. All makers and sellers of products sold to U.S. consumers, whether they be artificial hips or baby cribs, have an obligation under the law to ensure their products are safe when used as intended and are recalled in a timely fashion if they prove dangerous or defective. Common assertions in a Massachusetts product liability claim include dangerous design or poor manufacturing, lack of proper warnings, and breach of expressed or implied warranty.

Commercial Liability Coverage, Exclusions & Defenses

The increasing number of product liability claims have prompted commercial general liability insurers to place a growing list of exemptions and exclusions on CGL coverage for products-complete operations hazard coverage, which covers bodily injured and property damage that occurs after a business has relinquished control of a product. Litigation over liability under products-complete operations coverage is a complex area of law with a major impact on many product liability claims. Massachusetts product lability law firms focus on identifying all parties responsible for personal injury or wrongful death stemming from use of a dangerous or defective product. Often, interpretation of the products-complete operations coverage of a defendant’s general liability policy will determine coverage limits. Because of the liability exposure, the nation’s largest commercial liability insurers have long focused insurance underwriting strategies and legal defense on reducing their own financial risks. Most commonly, limitations of products-complete operations coverage require an injury to occur away from a business premises and be the result of an insured’s product or work. Likewise, defense counsel continues to attack breach of warranty claims under commercial general liability exclusions for coverage of breach of contract claims. Breach of warranty is a legal theory often deployed in product liability cases. However, it is based in part on contract legal theory, not tort theory upon which many liability lawsuits are based.

Top Dangerous Products in Massachusetts for 2018

Dangerous drugs/Defective medical products: By far the biggest risk of harm to the American consumer comes from the U.S. healthcare industry. As our Boston product liability lawyers have reported, dangerous drugs and defective medical products continue to harm tens of thousands of patients each year in an industry that has become increasingly lawless amid an environment of huge profits fueled by few regulations and little oversight. From the opioid crisis to the dangers of defective surgical mesh, artificial knees and implanted hips, these products continue to be the most expensive, and the most dangerous. Takata airbags: Ccontinued to be subject to the largest active recall in the United States in 2018. More than 50 million airbags in 37 million vehicles are under recall and need to be replaced, according to the National Highway Traffic Safety Administration. Risks include bags exploding in driver’s faces for no reason, often spewing metal and shrapnel throughout the cabin. Defective vehicles: Defective airbags are far from the only risk when it comes to motor vehicles. Historically, cars have been among the most frequently recalled consumer products. In many cases, the defects carry life-threatening risks.  Last year’s recalls included more than 1.5 million Ford F-150 pickups (crash fire risks), 1.3 million Ford Fusions and Lincoln MKZ (steering) and 800,000 Toyota Prius hybrids (stall risk). Home heating and fire risks: Were also among last year’s top recalls. More than 600,000 water heaters and 135,000 WiFi thermostats were recalled because of fire risks. Tankless water heaters, boilers and gas fireplaces were also recalled due to risk of fire, burns or carbon monoxide poisoning, according to the Consumer Product Safety Commission. You can view the CPSC database of recalls here. Child products: Continued to be among the most commonly recalled consumer products. Fall and choking hazards are among the most common. Last year’s top recalls included 40,000 convertible high chairs, 22,000 infant carriers and nearly 15,000 infant snowsuits. Off-road vehicles: All-terrain vehicles, scooters, bicycles, dirt bikes, and off-road utility vehicles continue be be subject to high-profile recalls. While it’s true such products result in a large number of injuries and emergency room visits involving children each year, just because use of such products carry inherent risks does not mean manufacturers and sellers are not responsible when serious injury or death is caused by a dangerous or defective product. Food Poisoning: The consolidation of America’s farming and meat-processing industries over the last several decades mean America’s are primarily fed by a dwindling number of large corporations. In addition to the high-profile food-borne illness cases at restaurants like Chipotle, grocery store chains dealt with a large number of recalls in 2018, including nearly 150,000 pounds of contaminated turkey and more than 100,000 pounds of bad ground beef, according the the U.S. Department of Agriculture. The risks having facilities such as schools and office buildings (where food service is not the primary function) adding Products-Completed Operations Insurance (discussed above). Such policies should include Hazard Redefined (CG 24 07), which removes the requirement that bodily injury occur away from an insured’s premises in order for coverage to apply. Your chosen product liability law firm must have significant experience litigating your type of claim, and must have the knowledge and resources  to prevail against the legal defense strategies deployed by the nation’s largest commercial liability insurer. More than in many other types of personal injury and wrongful death claims, a defendant’s legal liability and responsibility is often a vigorously contested issue. It is not enough to prove you suffered injury using a product. Your chosen legal team must prevail in holding responsible all identified defendants and their insurance companies. If you are have been injured by a product in Massachusetts, call the Law Offices of Jeffrey S. Glassman for a free and confidential appointment — 1-888-367-2900. Additional Resources FDA Recalls, Market Withdraws, and Safety Alerts More Blog Entries Transvaginal Mesh Update: Boston Scientific Settles with 350 Plaintiffs, Feb. 11, 2018, Boston Product Liability Attorney Blog