Legal Examiner’s Top 10 Civil Justice Stories of 2012

This is our first annual “Top 10 Civil Justice Stories” recap, for calendar year 2012, in which we count down the biggest, most followed, and most significant civil justice stories of the past year. Just like Letterman, we start with #10 and work our way to #1. [The author gratefully thanks his researchers, M. Hall and C. Alexander for their assistance].

10. Girlfriend Knowingly Texting At-Fault Driver Not Personally Liable

Why It’s Big

“Distracted driving causes death.” “Texting driver collides head-on.” “Texting driver’s last text.” Texting and driving has been all over the news headlines and for good reason: it’s causing an epidemic of catastrophic and fatal crashes. Countless car accidents and injuries have been caused by drivers who were texting or emailing, leading to multiple laws against texting while driving. As early 2009, a VA Tech study revealed that texting and driving is terribly dangerous due to “cognitive distraction.” But in New Jersey, an attorney attempted to push texting liability one step further. His clients were riding on a motorcycle in 2009 when they were hit by a car that swerved into their lane, resulting in very serious injuries, including the amputation of both of their left legs. The texting driver pled guilty and a complaint was filed against him in civil court. Later, the complaint was amended to include the driver’s girlfriend, who was not even in the car at the time of the accident. The attorney’s reasoning? The girlfriend was the one who was knowingly texting the driver at the time of the crash, and she should have known that it might distract him enough to cause an accident. On May 25, 2012, the presiding judge ruled that the girlfriend was not liable. Too much of a stretch.

What Did We Learn?

While this was stretching liability past the breaking point, with the growing rate of texting and driving accidents, one can easily see the limits of liability incrementally creeping outwards. But, even cops in their police cruisers have laptops with all kinds of information that can easily distract them while they are engaged in valid law enforcement. It appears that distracted driving is an outgrowth of the technology explosion around us. Especially for teenagers, who send dozens and dozens of text messages in a short period of time, the impulse to continue the same texting once behind the wheel can be terribly tempting. There is much to learn from organizations that are pushing for increased public awareness, including one called “end distracted driving” (endDD). The statistics are simple: car crashes are the number one killer of teens, and 80% of them involve some form of driver inattention, according to the organization. The real toll can be seen by simply clicking on the “Faces of distracted driving” interactive U. S. governmental website which features a visual rollover map where you can see videos and hear actual stories involving victims from around the country. Resolve to take one step yourself to do better: put your phone on vibrate and don’t use it in the car, or as one friend I know does, lay it on the backseat out of reach so you can hear it and then pullover if you really need to use it.

Dig Deeper: “New data from Virginia Tech Transportation Institute provides insight into cell phone use and distracted driving” by Sherri Box, published at vt.news.vt.edu

9. Flaws in the FDA’s 510(k) Approval Process

Why it’s Big

Given all the articles this year about medical device recalls and lawsuits, an obvious contender for any Top 10 list would be a discussion over questions that have been raised about the medical device approval process employed by the U.S. Food and Drug Administration. Examples of problematic products include the DePuy ASR hip implant, transvaginal mesh and defibrillator lead wires. Each of these devices has allegedly caused severe injuries and sometimes death. All of these devices were used in patients without rigorous, independently verifiable testing of their safety, according to many lawsuits.

What Did We Learn?

The FDA's system for approving medical devices is known as the 510(k) clearance process. It allows for easier approval of a device if it is "substantially equivalent" to another device that is already being marketed to consumers. The FDA defines substantial equivalence as the new device being “at least as safe and effective as the predicate." A study by the Government Accountability Office (GAO) and the Institute of Medicine found that each year a significant number of recalled devices were initially approved on the basis of “substantial equivalence.” Given the safety concerns this process raises, the well-respected Institute of Medicine, an arm of the National Academies of Science, has called for a complete revamping of the FDA medical device approval process.

Sadly, the companies that make many of these dangerous medical devices seem more concerned with huge profits than with reasonable safety, by pushing a new product to market even if testing is inadequate, or creates doubts as to potential risks. The civil justice system thus depends on regulatory agencies but also other groups, such as consumer trial lawyers, to expose dangerous products that are on the market, forcing device manufacturers to make safer products for consumers. Especially if an adverse jury verdict cuts into those huge profits, the device manufacturers really pay attention.

Dig deeper: "Loophole in FDA's Approval Process for Medical Devices Prompts Letter from Congress,” by Gergana Koleva, published at Forbes.com.

8. The Rise of Yaz/Yasmin Litigation

Why it’s Big

Despite the popularity of the birth control drug Yaz, it’s been a year of bad news for Bayer, the maker of birth control drugs Yaz and Yasmin. Though the contraceptives have only been around for a little over a decade, the number of lawsuits linked to the drugs have now surpassed the current number related to asbestos, making it the largest litigation in the country.

Yaz/Yasmin made a popular debut to the U.S. market back in 2001, but studies have since emerged showing that the drug (and its close relative, Yaz) contains a synthetic hormone, drospirenone, which has been tied to increased risk of developing a blood clot. One study, published in the journal Contraception, found that women who took birth control pills containing drospirenone were 77% more likely to experience blood clot related conditions such as deep vein thrombosis and pulmonary embolism. Why was that evidence not known through the approval process leading to the drug entering the US market?

What Did We Learn?

Given the number of women taking Yasmin, which was the fourth most prescribed oral contraceptive in 2011; it’s perhaps not a surprise that Bayer is now facing more than 12,000 lawsuits over the drugs. Attorneys have argued that more than 50 deaths are linked to the products, claiming that they caused blood clots in some women and damaged gallbladders in others. According to a report in Businessweek, Bayer announced in a recent financial statement that it has thus far agreed to pay a combined $750 million to settle claims regarding its birth control drugs, amounting to an average settlement of nearly $212,000 per case. Though it’s anyone’s guess how much worse the situation can get, drug-industry analysts have said that Bayer may end up paying out over $2 billion to resolve all the cases related to the contraceptive line. For women still using Yaz: we recommend you read all the information if you are continuing to use this contraceptive.

Dig deeper: “Bayer’s Yasmin Lawsuit Settlements Rise to $402.6 Million,” by Jef Feeley, published at Businessweek.com.

7. Large Birth Injury Lawsuit Verdicts On the Rise

Why It’s Big

Nothing is more tragic than the death or catastrophic injury of a child. And birth injuries are no exception. Infants that are injured during birth are sentenced to a lifetime of struggles that most likely could have been avoided, and their families are thrown into the task of caring for an individual who will most likely require special needs for the rest of their lives. As a result, birth injury lawsuit compensation tends to be some of the highest in the civil justice system. Cases in 2012 were no exception. In a particularly shocking negligence case in Pennsylvania, a pregnant woman went to Pottstown Memorial Medical Center a few weeks before her baby was due in August 2008. The doctor on call did an ultrasound and told her that her baby had died. An ultrasound technician had to be called in from home because there was not one regularly on staff at the hospital on Sundays. The technician discovered the first doctor was wrong and that the baby was still alive, at which time the doctor stated the baby must have come back to life. Unfortunately, almost 90 minutes had passed by that time. When the c-section was finally performed, the baby was born with spastic quadriplegic cerebral palsy. The medical malpractice case went to trial in the spring of 2012, and the jury awarded the family $78.5 million.

Another birth injury suit, against the U.S. under the Federal Tort Claims Act, had a tortured six-year history involving two federal appeals. The family of a child who allegedly suffered brain damage from birth related negligence finally settled with the U.S. during 2012 on a $25 million payout. The ultimate settlement did not occur until about five years after the Alexandria, VA federal judge had entered the original judgment for 28 million.

Jennifer & Capt. Andrew Cibula and their minor son, JC, sued alleging that Navy physicians were negligent after a maternal-fetal specialist at Balboa Naval Medical Center in CA instructed Cibula’s treating obstetrician to monitor her pregnancy with frequent ultrasounds and other tests. Due to significant bleeding in his brain during his c-section birth at 36 weeks, JC, now 14, is mentally retarded, suffers cerebral palsy, and muscle contractures. He requires 24 hour nursing care and will never live independently though he has a normal life expectancy.

What Did We Learn?

When we think about the concept of a pure, innocent victim, it makes no difference as to your background or political stripes when it comes to catastrophic injury to a baby. We learn here that human life is priceless, especially a baby who will never have a decent quality of life. But when the expense of caring for a baby with special needs is considered, the two sides often argue about whether a life care plan is appropriate or is too generous. If you happen to know a family member or close friend who has a special needs child, you may have some familiarity with the life-changing implications of having a child who may never work, medical expenses, and special equipment and educational needs. As an adult, the victim will continue to need care, even after their caring parents have passed away. These are the factors that generate large birth injury verdicts, and by definition, the attorneys pursuing the cases must convince a jury that the entire horrible event was completely preventable.

Dig Deeper: “Pottstown hospital ordered to pay $78.5 million” by Jeff Blumenthal and John George, published at bizjournals.com

6. Facebook Page “Stink Bomb” Pictures May Have Cost Attorneys and Client Millions

Why It’s Big

In a classic case of Facebook being “used against you in a court of law,” a widower and his attorney stand to lose millions of dollars in compensation, and were ordered to pay major sanctions when it was alleged that the attorney told the client to delete entries on his Facebook page. It all started with a horrific truck crash in 2007, when a cement co.’s truck overturned onto a car, killing a 25-year-old woman in Charlottesville, Virginia. Her husband filed a wrongful death suit, which was handled by Matthew Murray, a prominent attorney with Allen, Allen, Allen & Allen law firm. The jury verdict was for $10.6 million, but any relief was short-lived. Shortly before the trial, the “stink bomb” pictures – including one of the widower drinking beer and wearing a garter on his head and an “I love hot moms” T-shirt – were discovered on his Facebook page– but after the cement co’s lawyers had already requested printouts of his FB page. Allegedly, Murray instructed him to deactivate his account and reactivate it without the photos. The new, “safer” account is what was produced according to the defense attorneys. However defense lawyers were still able to obtain the original photos through a subpoena to Facebook. In September 2011, the trial judge reduced the jury award by over $4 million calling it excessive, and the widower and his attorneys were slammed with $775,000 in sanctions. The case continues during 2012 as the Virginia Supreme Court agreed to hear an appeal from the plaintiffs on the grounds that the trial judge improperly reduced the jury’s verdict, but no appeal error was assigned as to the monetary sanctions over the Facebook pictures.

What Did We Learn?

Let’s refer back to Pinocchio and how his nose got longer. Or, perhaps how a small lie can turn into a really big one? Many folks wondered how the defense attorneys found his Facebook page. Come on, that’s too easy in today’s world. Even criminals go on Facebook and flash the money and send it out to their friends of their friends as this author has written about in the new book Faceplant chronicling many amazing FB true tales. The most obvious lesson is anything you do or say on Facebook may be used against you in a court of law. Maybe we need to institute a mandatory “Facebook rights” warning immediately after a person’s “Miranda rights are read to them, or better yet, as soon as you sign up on Facebook. Deleting electronic files in the midst of a civil lawsuit is illegal (if done to avoid producing them) and most likely pointless, because these pages live on forever in cyber space. Rather than breaking the law and putting your case in jeopardy in an attempt to cover up what may be “stink bomb” type evidence, use your lawyerly skills to assure a jury or opposing party that your client was channeling some inner persona or fragility. Oh, and if you are a lawyer, talk to your new client about FB, and check on your client’s online profile at the beginning, not the end.

Dig deeper: “Attorney accused of lying in $10 mil wrongful death case” by Tasha Kates, published at dailyprogress.com

Continue reading the rest of the countdown and the top five Civil Justice stories of 2012.

Image sources:

Texting: Pause Magazine
FDA: Vaccine News Daily
Yaz: Councils For Women
Birth Injury: Don Porter
Facebook: MIndjumpers