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Mass Tort Report – RGLZ Personal Injury Law

RGLZ Personal Injury Law has always been active in pursuing medical device, drug and mass tort product liability cases, but we are expanding our mass tort practice with the addition to our firm of Tom Valet. Tom was a founding partner of the Rheingold, Valet law firm, where he worked for more than 30 years on mass tort, medical malpractice and product liability cases, for which his firm had a national reputation. Tom now brings that wealth of experience to RGLZ.

RGLZ is currently looking for cases involving the following drugs and devices:

Ethicon Physiomesh, Atrium C-Qur, And Bard Ventralex Surgical Mesh Failures:
There are a variety of mesh products used to surgically treat hernias and other soft-tissue defects, with doctors using these products in more than 1 million operations each year. Many of these mesh products are associated with serious complications including mesh failures and high infection rates. Over the years there have been numerous recalls and litigations involving surgical mesh and the newer designs continue to be associated with serious medical complications, particularly mesh made from polypropylene.

Physiomesh, manufactured by Ethicon, was voluntarily recalled from the worldwide marker last year after reports of significantly higher complication rates causing recurrence and the need for reoperation. In 2012, the FDA issued a warning letter to Atrium after it failed to investigate reports of high infection and failure rates tied to its mesh product, the Atrium C QUR. The Bard Ventralux mesh has also been associated with serious complications including bowel obstruction, bowel perforation and high infection rates. RGLZ is currently representing clients injured by these products and welcomes the referral of clients of yours who have experienced a problem related to the use of hernia mesh products.

Proton Pump Inhibitors:
Proton Pump Inhibitors (PPIs) are drugs prescribed for the treatment of acid-reflux and other gastric-acid disorders of the upper GI tract. They include popularly known drugs such as Nexium, Prilosec, Prevacid and Protonix. For years there have been reports of issues with these drugs related to bone fractures and heart attacks, but new research suggests a link between PPIs and a form of kidney disease known as Acute Interstitial Nephritis. Adverse effects of PPIs appear to be more prevalent with long-term use of these drugs. RGLZ is currently handling a number of PPI cases and welcomes referral of any client of yours who used a PPI and has suffered an injury as a result.

IVC Filter Cases:
Inferior Vena Cava filters are medical devices implanted into a patient’s vena cava, the body’s largest vein which carries blood back to the heart from the lower body. IVC filters are designed to prevent blood clots from reaching the heart and lungs in patients at risk for formation of emboli who cannot be treated with blood thinners.

The devices are designed to be retrievable by the surgeon after short-term use, but in many cases the IVC filters are left in permanently. Retrieval of IVC filters is often not possible because the devices are prone to fracturing, migration and embedment in the wall of the vein. Bard and Cook are the most common brands of IVC filters and MDLs (Multi-District Litigations) have been established for coordination of cases in federal court. RGLZ is participating in the MDLs with a number of IVC filter cases in suit.

Diabetes Drugs:
Drug manufacturers continue to develop and promote new drugs for treatment of Type 2 Diabetes, many of which are associated with serious medical conditions. Invokana and Farxiga are two such drugs, known as SGLT2 Inhibitors, which work to lower the patient’s blood sugar by helping the kidneys remove excess sugar through their urine. Starting in 2015 the FDA required enhanced warnings for Invokana and Farxiga. Previously unreported side effects for which additional warnings are now required include the development of ketoacidosis, a serious condition related to excess acid in the blood, and acute kidney injuries tied to these drugs.

Zofran:
This drug was developed and approved by the FDA for treatment of nausea in chemotherapy patients. The manufacturer, GlaxoSmithKline, however, improperly began promoting the drug off-label for use in pregnant women suffering from severe cases of morning sickness. Virtually no research had been done, however, into the effects of Zofran in pregnancy, and reports soon surfaced of a variety of birth defects believed to be tied to the drug. These birth defects include cleft palette and severe malformations of the heart.

Medical malpractice cases also exist against Obstetricians who prescribed this drug to their patients off-label despite the lack of research into its effects when used during pregnancy. RGLZ is currently handling a case involving a baby born with severe heart defects and other serious medical issues related to the use of this drug.

3M Bair Hugger:
This medical device is a forced-air blanket used during surgery to maintain the patient’s body temperature. The system, however, recirculates air contaminated with bacteria, causing infections in the patient. Patients undergoing knee or hip replacement are at particular risk of deep joint infections, which are extremely difficult to treat.

Metal-on-Metal Hip Replacements:
Suits for defective and recalled artificial hips have been ongoing for years now, with several major settlements of litigations involving DePuy and Stryker hips. RGLZ is investigating any case involving metal-on-metal hips, including DePuy ASR Systems which were recalled in 2010, DePuy Pinnacle hips, and Stryker Rejuvinate hips which were recalled in 2012. Other metal-on-metal hips in litigation include those manufactured by Zimmer, Wright and Biomet.

Defective Carbon Fiber Bicycles:
High-end bicycle manufacturers charge a premium for bicycle frames made from carbon fiber, which are touted as being stronger and lighter than metal bike frames. Unknown to most consumers, however, is that despite their branding, these frames are not manufactured in Europe or the United States. Rather, they are made in China, with limited quality control. These defective carbon fiber frames can crack while riding, causing crashes and falls that have resulted in serious injuries and death.

Essure Birth Control Device:
The Essure Birth Control device is a metal coil inserted into a woman’s fallopian tube to provide permanent sterilization. The device, however, has been reported to be associated with a variety of complications, including perforation of the fallopian tube or uterus and migration into the abdomen or pelvis. Tom Valet handled one of the first cases involving this device, in which he successfully sued the implanting doctor who failed to recognize that the Essure device had migrated out of the fallopian tube and perforated his client’s uterus.

First Steps After A Construction Accident

industrial concept with tools and equipment, selective focus on nearest

New York has special provisions to address the unique dangers faced by construction workers. Workers at construction sites are routinely subject to dangerous conditions and potentially serious injury. When a worker is injured, he/she is covered by workers’ compensation. But that is often not sufficient to cover the severe injuries that occur at construction sites. Furthermore, construction sites are usually occupied by numerous employers (contractors, subcontractors) at a time. Often, one of these third parties will be the cause of an injury to a non-employee who is working for someone else on the site. Continue reading

Defective St. Jude ICD / CRT-D Devices

Defective St. Jude ICD / CRT-D Devices

assura-ellipseSt. Jude Medical Implantable Cardioverter Defibrillator (ICD) and Cardiac Resynchronization Therapy Defibrillator (CRT-D) devices – Early Battery Depletion

If you are a New York user of a St. Jude Implantable Cardioverter Defibrillator (ICD) or Cardiac Resynchronization Therapy Defibrillator (CRT-D), you need to be aware of a major defect in the device’s battery that can lead to injury or death at worst, and necessitate immediate replacement of the device at best.

Due to conductive lithium deposits in the battery, it can possibly deplete rapidly enough to lose all power within a 24-hour window. This renders the device completely inoperable. Under normal circumstances, a user of one of these devices would have a significant warning as to a nearly depleted battery, and would be able to plan a replacement far in advance. The potential of a catastrophic and sudden device failure presents a situation where the typical “Elective Replacement Indicator” (ERI) signal may only come 24 hours before the device ceases to function, and many are forced to have their devices replaced immediately.

This defect is not acceptable for such a medical device, as it puts patients’ health at grave risk. Failure of the device to operate can and has led to serious injuries to users of the devices, as well as forcing premature procedures to replace the devices. If you, a family member, or someone you know has been put in this situation, or currently has one of these devices, we implore you to call us. We can help recover money for injuries or other complications stemming from these defective medical devices. We can be reached at 800-734-9445, or via email at Info@RGLZlaw.com.

Relevant FDA Notices

FDA Safety Communications
FDA MedWatch Safety Alert

The RGLZ Street Team And Motorcycle Mike ESQ Wrap Up The Summer Season

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In addition to fighting for people’s rights, RGLZ Personal Injury Law supports our local communities in many other ways. In the last few weeks, we have sponsored two local events that proved to be a great way to reconnect with the public, reaffirm our services, and give back to the communities that turn to RGLZ when they need help or just legal advice.

On September 18th, Accompsett Middle School held it’s second annual Color Run. RGLZ was a proud sponsor of the event, which supported a variety of cultural arts programs in the community. The Color Run was a 4k paint race that has no winners, but excited runners are showered with colored powder at stations along the run. Over 225 people participated and it proved to be successful in raising funds to help the children rediscover art.

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The next week, Motorcycle Mike Esq was out in support of the Nassau County Cruise to The Show, and also sponsored this 7th annual parade and car show, which was a great send-off for an awesome summer. It was a fun-filled 2-day event at Eisenhower Park, with over 1200 show cars, vendors, and even a free concert featuring Eddie Money! Motorcycle Mike gained a lot of exposure at the show, along with connecting with the community.

It was a busy and productive September for the “RGLZ Street Team”, and we can’t wait to come up with even more new ways to conduct positive outreach. Stay tuned, as we transition into the colder months of the year, and if you see us out and about, come over and say hi!

Click to check out our photo album from both events!

Are You Paying Too Much for Subpoenaed Medical Records?

Any lawyer who routinely purchases medical records as part of their practice is familiar with the ubiquitous $0.75 charge per page.  However, does Public Health Law Section 17 and 18’s provision, requiring medical records be furnished to patients at a maximum of $0.75 per page, apply in the context of subpoenaed medical records?  A reading of CPLR §8001 suggests the answer is no. Continue reading

6 Years of the Motorcycle Mike Poker Run

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On June 4th, “Motorcycle Mike” Levine was happy to host his sixth annual motorcycle poker run for charity, in support of United Cerebral Palsy of Suffolk. This run brings out bikers from all over New York to ride for a cause, and has become a staple early in the riding season for many of these bikers. Every year, thousands of dollars are raised, and all money taken in from the run and subsequent party goes directly to the charitable cause.

United Cerebral Palsy works to support the betterment of the lives of countless people with a range of disabilities, and we were extremely happy to have been able to raise over $5,000 for them, which will go directly into these programs which help their participants develop skills and interact in ways which dramatically improve their standard of living.

With the help of 102.3 WBAB, we put on a great party with live music, vendors, food, and the first ever Ultimate Road Trip contest, where 10 entrants had a chance to win a bike and trip. Everyone ended up going home with a prize of concert tickets thanks to the generosity of our partners, and we would like to thank Full Throttle Magazine, CYA Action Funwear, The Us Vets Motorcycle Club, and the Enders Motorcycle Club for their support this year.

The most rewarding part of the event was seeing the joy on the faces of UCP program participants who could make it down to see things in action. Being able to provide an experience like this for them is what makes it all worthwhile, and it’s what we’ll remember best about this year’s event.

For more photos from the event click here!

 

 

A Guide to Openings and Summations: Part Five

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The Law of Summations: Don’t Cross the Line

Summation represents your final opportunity to persuade the jury. By the time of summation, jury analysis proves that virtually all of the jurors have already formed opinions as to who should win and who should lose. The role of summation, therefore, is to sway those few jurors who still remain undecided, and to arm jurors already on your side with the ammunition to convince adverse jurors to change their opinion.

The Court permits attorneys wide latitude to “fairly comment” on the facts and evidence as borne out by the proof. Fair comment encompasses argument on every pertinent matter of fact before the jury. Indeed, the permissible boundaries of summation are best defined by what cannot be said.  

Thus, counsel may not:

•  Comment On Facts Which Have Not Been Placed In Evidence.

See Cattano v. Metropolitan St. Ry. Co., 173 N.Y. 565 (1903) (appeals to prejudice or passion or raising facts neither proved nor presumed have no place in the trial.)

Taggart v. Alexander’s Inc. 90 A.D.2d 542, 455 N.Y.S.2d 117(2d Dep’t 1982) (reversible error to permit defense counsel to refer to prior acts of the decedent in summation where there was no evidence introduced of such acts at trial).

•  Request Damages In Excess Of The Amount Demanded In The Pleadings.  

See Pop Cowboy, Inc. v. 175 West 73rd Street Reality Corp., 292 A.D.2d 300, 740 N.Y.S.2d 29 (1st Dep’t 2002), reducing a jury’s damage award where the award exceeded the amount specified in the ad damnum clause.

•  Make References To The Insurance Coverage Of A Party.  

See Young v. Tops Markets, Inc., 283 A.D.2d 923, 725 N.Y.S.2d 489 (4th Dep’t 2001) holding the lower Court properly sustained defendant’s objections to plaintiff counsel’s “veiled references to insurance” during summation)

Knapik v. Whitaker, 30 A.D.2d 915, 292 N.Y.S.2d 781 (3d Dep’t 1968)

Rendo v. Schermerhorn, 24 A.D.2d 773, 263 N.Y.S.2d 743 (3rd Dep’t 1965) holding defense counsel’s references to defendant’s lack of insurance cannot be condoned.

•  Allude to a Party’s Ability or Inability to Respond in Damages. 

See Vassura v. Taylor, 117 A.D.2d 798, 499 N.Y.S.2d 120 (2d Dep’t 1986) holding it was grossly improper for defense counsel to remark in summation that the defendants have limited means and could not afford to pay a large judgment

Carey v. AAA Con Transportation, Inc., 61 A.D. 2d 113, 401 N.Y.S.2d 1015 (3rd Dep’t 1978), granting a new trial where plaintiff’s counsel in summation commented on the defendant’s ability to pay

Nicholas v. Island Industrial Park of Patchogue, 46 A.D.2d 804 (2d Dep’t 1974). In Nicholas, plaintiff’s counsel stated in summation: “They’re the corporations, they’re the owner, they’re the defendant, they’ve got the money, they’ve got the assets behind them.”   Nicholas supra at p. 41. The court held that references to a defendant’s ability to pay damages were improper.  

•  Act As An Unsworn Witness By Asserting Personal Knowledge the Facts in Issue. 

See Valenzuala v. City of New York, 59 A.D.3d 40, 869 N.Y.S.2d 49 (1st Dep’t 2008) plaintiff’s counsel caused reversible error by continually voicing his opinion as to the facts of the case during summation, which conduct amounted to a subtle form of testimony which could not be cross examined

Boruch v. Morawiec, 51 A.D.3d 429, 857 N.Y.S.2d 103 (1st Dep’t 2008) (it is improper for defense counsel to call the Industrial Code a “stupid law,” but holding that the comment had been properly limited by a curative instruction)

Pilon v. Pilon, 278 A.D.2d 760, 718 N.Y.S.2d 449 (3d Dep’t 2000)

Reynolds v. Burghezi, 227 A.D.2d 941, 643 N.Y.S.2d 248 (4th Dep’t 1996)

Stangl v. Compass Transportation, 221 A.D.2d 909, 635 N.Y.S.2d 376 (4th Dep’t 1995)

Sanchez v. Manhattan and Bronx Surface Transit Operating Auth., 170 A.D.2d 402, 566 N.Y.S.2d 287 (1st Dep’t 1991)

Undignified, Discourteous, and Plainly Obnoxious Ways to Blow a Case

In addition to the foregoing, there is a general, but important, category of improper summation commentary which can be best characterized as undignified, discourteous and plainly obnoxious conduct of such a significant degree as to compel a retrial. See the examples below.

Caraballo v. City of New York, 86 A.D.2d 580, 446 N.Y.S.2d 318 (1st Dep’t 1982)

Among the other excesses contained in the plaintiff’s summation, was the following:  “They will say anything to beat this case because, ladies and gentlemen, there is a lot of money involved here.  They bring in a phony doctor for a price. . .”  Id. at p. 318.

Berkowitz v. Marriott Corporation, 163 A.D.2d 52 (1st Dep’t 1990)

In this case, a verdict of nearly $8 million was reversed because of plaintiff counsel’s remarks during summation, including calling experts hired guns, accusing the defense attorney of not even himself believing the positions his clients advanced, etc. This case is significant in that defense counsel did not object to the comments as they were being spoken; rather, he waited until the conclusion of summation. Notwithstanding, the court ordered a new trial. 

Maraviglia v. Lokshina, 92 A.D.3d 924, 939 N.Y.S.2d 534 (2d Dep’t 2012)

The Second Department ordered a new trial based on a defense attorney’s comments during trial that the plaintiff’s treating physician was the “go-to” doctor for people seeking disability benefits and that the doctor performed medicine “in a parking lot.” He also implied that another one of plaintiff’s doctors was involved in a scam and he made various other inflammatory comments not based on the evidence. 

Mercurio v. Dunlop, 77 A.D.2d 647, 430 N.Y.S.2d 140 (2d Dep’t 1980)

In Mercurio, the defense verdict was reversed because defendant argued plaintiff’s expert was a fraud and a phony, and plaintiff wanted to steal money from the defendant. Yet, in Chappotin v. City of New York, 90 A.D.3d 425, 933 N.Y.S.2d 856 (1st Dep’t 2011) lv. To app. Den. 19 N.Y.3d 808 (2012), the First Department affirmed a jury verdict despite defense attorney comments that the lawsuit was part of a pattern of the plaintiff trying to “scam his way into free money”, and that the plaintiff, who was on disability before the accident, “has played the system going on 15 years.” The Appellate Division affirmed the defense verdict on the grounds that plaintiff’s attorney had failed to object to 13 of the 15 objectionable comments and the trial Court gave curative instructions on the two comments plaintiff objected to.

The lesson in these cases is clear. Parties in summation may recap the evidence, comment on its relevance to the issues in the case and contrast the testimony. Counsel is given, “within the four corners of the evidence, the widest latitude by way of comment, denunciation or appeal in advocating his cause.”  Braun v. Ahmed, 127 A.D.2d 418, 421, 515 N.Y.S.2d 473 (2d Dep’t 1987); Kasman v. Flushing Hospital and Medical Center, 224 A.D.2d 590, 638 N.Y.S.2d 687 (1996). Ad hominem attacks, however, are not favored, although sometimes permitted, but may result in a reversal if they have no evidentiary basis.

In short, the law of summations is rather simple. Deliver your summation based on the evidence.

Bad Faith Insurance Claims in New York: When the Carrier Fails to Pay

A homeowner’s insurance policy is a contract between the homeowner and the insurance company to fairly pay damage claims as they arise. It is a contract in which the insured pays a premium for the peace of mind, or comfort, of knowing that he or she will be protected in the event of a catastrophe.

Under New York law, implicit in the contract is the insurance carrier’s promise that it will deal with its insured fairly and settle claims in good faith. What happens, however, when the insurance carrier breaks the contract, refuses to pay claims, or unfairly minimizes the damages, as has been alleged in the many litigations arising after Superstorm Sandy? What are the homeowner’s rights and what damages is the homeowner entitled to from the insurance carrier? Continue reading