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Following up on our blog “U.S. Supreme Court Deals Blow to Lawsuits Against Defective Products“, the Court heard arguments on February 25 in Warner-Lambert v. Kent, to determine whether drug manufacturers should receive similar protection from lawsuits that the Court handed out to medical device makers earlier in February. Judge Breyer, normally one of the Court’s most liberal justices, gave a strong indication that the Court is heading in the direction of protecting drug makers when he stated: “Who should make the decisions that will determine whether a drug is on balance, going to save people or, on balance, going to hurt people?… An expert agency, [The Food and Drug Administration] on the one hand or 12 people pulled randomly for a jury role who see before them only the people whom the drug hurt and don’t see those who need the drug to cure them.”

Seemingly forgetting about the thousands of injured victims of Vioxx, for example, who used a dangerous drug which had been approved by the F.D.A. and nevertheless suffered numerous deaths, heart attacks, and other complications, and without question needed the courts to redress their grievances, it appears that the Supreme Court is now ready to bar lawsuits against drug makers.

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Last week, the U.S. Supreme Court ruled that private lawsuits against medical device manufacturers are not permitted when the device in question complies with federal requirements. Essentially, the Court’s decision in Riegel v. Medtronic is another example of the U.S. Supreme Court’s attack on consumer rights, and will have far reaching negative effects for those who are seriously injured by dangerous and defective products . Charles Riegel received a balloon catheter manufactured by Medtronic which ruptured due to over inflation. He developed a heart block and was forced to undergo emergency surgery to save his life.

The Riegels brought a claim in federal court in New York, which was dismissed by the court, and upheld by the U.S. Circuit Court as being preempted by the Medical Devices Amendments (MDA). The MDA precludes lawsuits against manufacturers where the device in question complied with federal requirements. The problem with the Court’s decision, as noted by Justice Ginsberg in her dissenting opinion, is what if evidence of the product’s defect becomes known after the product has received premarket approval?

The Court stated in no uncertain terms its belief that juries are not capable of evaluating the risks associated with dangerous devices, with such language by Judge Scalia as the following: “The Dalkon Shield failure and its aftermath demonstrated the inability of the common law tort system to manage the risks associated with dangerous devices.” And this quote from the opinion is even more frightening for those who believe in our civil justice system as a means to hold manufacturers of defective products accountable: “A jury on the other hand, sees only the cost of a more dangerous design, and is not concerned with its benefits; the patients who reaped those benefits are not represented in court.”

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The Food and Drug Administration announced on February 28 that “potential deficiencies” at a Chinese plant that produces the active ingredient in Heparin, a blood thinner used to treat blood clots during dialysis and after some surgery, is a possible cause of 21 deaths, as well as hundreds of allergic reactions including vomiting, nausea and difficulty breathing. Baxter International, the company which makes the brand of Heparin that is now considered a potentially dangerous product, has announced an immediate recall of virtually all of its Heparin products, which it buys from a Chinese plant known as Changzhou SPL.

Heparin is made from pig intestines. In China and other developing countries, tracing the source of the animals used to make the product can be very difficult. The FDA also acknowledged that other problems which could have led to the manufacture of the dangerous product include the lack of specific procedures outlining removal of impurities, and no records showing the suppliers’ source of the products.

The Food and Drug Administration estimates that over one million multi-dose vials of Heparin are sold per month in the United States, and half of those are manufactured and distributed by Baxter. However, the FDA has provided assurances that there is an adequate supply in the market to meet the demand for Heparin, which clearly is a necessary and lifesaving drug.

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Our White Plains, New York office gets numerous calls and e-mails from clients confronted with a scenario in which they have been sued for more than their insurance coverage, and they receive a notice from the insurance company stating the following: “You may wish to retain a private attorney at your own cost and expense to protect your interests over and above your insurance coverage…” For example, we have represented an orthopedist who was sued for medical malpractice in Brooklyn, New York with a claim of serious injuries as a result of improper back surgery; a client in a Westchester County motor vehicle accident who had a minimal insurance policy ($25,000) and was being sued for more than $1,000,000; and the owner of a beer and beverage mart who was sued in a Dutchess County wrongful death case by the parents of some underage teens in which the teens bought beer at the mart and served the beer at a “keg party”, resulting in the intoxication of a underaged partygoer who lost control of his car and was then involved in a horrific accident causing his death and serious injuries to four other teens.

The answer as to whether you need a private attorney involves a few significant factors. To begin with, in the case involving the Westchester County driver, one of the big issues was whether the injuries were serious enough to result in a verdict which could exceed the car insurance policy limits. In that Westchester County car crash case, the answer to the question was yes, as the policy limits were the smallest available in New York, and the injuries included a broken leg, which without question could result in a verdict of more than $25,000.

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Almost since the inception of New York’s No-Fault Law in 1974, New York automobile insurance companies, and particularly, Allstate, State Farm, and New York Mutual Insurance, to name a few, have for years, added insult to the injury of our clients’ car accident injuries by seeking to cut off benefits as soon as possible. This, despite the fact that their insureds have loyally paid their premiums for years, and then when they need to be “In Good Hands”, instead they get a letter informing them that they are not covered for their medical treatment as a result of the accident.

The way the system works is this. When you are in a New York automobile accident, you begin to treat with an orthopedist, neurologist, chiropractor or physical therapist for your injuries. Assuming you do not have a fracture, which automatically makes you eligible for no-fault benefits as meeting the “No-Fault Threshold“, the insurance companies, sometimes as soon as two weeks after the accident, will send you to their orthopedists, neurologists, or chiropractors, who routinely and without exception will find that there is no “serious injury“, (serious injury being the legal standard you must meet to be eligible for no-fault benefits) and that no further treatment is required. The reason the insurance companies schedule these so called “IME’s” (meaning Independent Medical Examinations” despite the fact that there is absolutely nothing “independent” about them), is that they know that another way to substantiate a serious injury is through 90 days of continuous treatment within the first 180 days after an accident.

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Florence Cioffi, a woman who survived 9/11 and was just days from her 60th birthday, was killed in a New York City car accident on January 24 when she was run over by a vehicle driven by computer software executive George Anderson just before 11:00 PM on Water Street in Manhattan. Mr. Anderson kept driving, but returned to the scene a short time later, where he was observed by police officers to have bloodshot eyes, smell of alcohol, and have slurred speech. Mr. Anderson refused a police request to take a breathalyzer test. Police immediately administered a blood alcohol test; the results have not been announced yet.

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Global positoning devices (GPS), although a lifesaver to some, have been blamed for numerous New York car accidents over the last few years. Most recently, earlier this month, a driver from California caused a fiery car accident when he turned on to railroad tracks in Bedford Hills and his vehicle was struck by an oncoming train when the car became stuck on the tracks.

The driver, a 32 year old who works for a SIlicon Valley tech company, claims that the GPS device in his vehicle instructed him to turn right onto the train tracks leading to the January 4 New York motor vehicle accident with the oncoming train. The driver exited the vehicle before the accident and was not injured.

Since 2005, according to Dan Brucker of Metro-North railroad, a growing number of out of state drivers have informed police that they were following GPS devices instead of paying attention to signs at parkway entrances. A spokeman for Garmin, the largest GPS seller in North America, indicated that 15% of cars are now equipped with the GPS devices.

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2007 continued a trend of numerous New York car accidents on suburban New York roadways dominated by aggressive, inattentive drivers causing numerous car accidents and fatalities. According to Captain John Hodges of the Westchester County Police, the main causes of these New York car crashes and auto deaths are: speeding, driving while intoxicated, following too closely, taking curves too fast and weaving in and out of traffic.

New York car accidents are also being caused by inattentive drivers who are speaking on cell phones, adjusting their global positioning devices, and listening to their IPods with earphones. Additionally, a new and shocking trend that has been observed by motorists and police patrols alike is young drivers text messaging while driving!

Fatal accidents in New York rose from 2005 to 2006 in the counties of Westchester, Rockland and Putnam. Statistics are not yet available for 2007. DWI arrests on Westchester County roadways increased from 470 to 494 in 2007 due to more aggressive enforcement, according to Capt. Hodges.

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Everyone in New York, and around the country, has shopped at the “big box stores”–Wal-Mart, Costco, Target, BJ’s, Lowe’s, and Home Depot, to name a few. Heavy merchandise is stacked high up on the shelves, as much as twenty to thirty feet in the air, and the question is: “Are these stores safe?” The answer for many of our personal injury clients in the Bronx, Brooklyn, Queens, Manhattan, White Plains, and the entire lower Hudson Valley is a resounding “No!” Every day around the country, customers at these establishments are being seriously injured by falling merchandise, which has been improperly stacked, carelessly arranged, or placed without the necessary safety cables or other devices to prevent accidents. The ABC News program “20-20” highlighted the dangers of falling merchandise accidents a few years ago.

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New York Trials are structured differently in Manhattan and Bronx personal injury cases than they are in the remainder of the lower Hudson Valley and other boroughs of New York City. In a New York County construction accident, or a Bronx slip and fall case, for example, there are “full trials”, meaning that all issues are litigated before a jury in the same trial: issues as to the fault of the parties, as well as the injuries suffered by the plaintiff, the treatment performed by the doctors involved and the all damages issues involving the permanency of the injuries.

Conversely, in Queens County, for example, as well as the lower Hudson Valley jurisdictions such as Westchester County, Dutchess County, Rockland County, and Orange County, to use some examples, except in rare instances, trials are “bifurcated.” Bifurcated means split into two parts. So, as an example, in a Westchester County motor vehicle accident, the jury first hears testimony and considers evidence only of the negligence or fault of the parties involved in the car accident, and first makes a decision as to whether the defendant(s) and or the plaintiff are legally responsible for the accident. (For a description of how we prove the defendant’s negligence in a personal injury case, please see our November 13, 2007 blog entitled “Burden of Proof in New York Personal Injury Cases”). It is only if a jury finds the defendant(s) partially or wholly at fault for the accident in a bifurcated trial that a jury then decides the amount of damages to award the plaintiff in a bifurcated case.

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