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Maryland Jury Awards $17 Million to Pilots Killed in Midair Plane Crash

A jury in Maryland awarded a total of $17 million to the families of helicopter pilots killed in a midair collision in Frederick, MD, in 2014.

Midwest Air Traffic Control Services, the contractor that runs the tower at Frederick Municipal Airport, was found liable.

The families of Christopher Parsons, 29, of Westminster, recovered $5 million and the family of William Jenkins, 47, of Morrison, Colorado, recovered $12 million for the fatal midair crash of their helicopter and Cirrus plane on Oct. 23, 2014.

Economists working on behalf of the families estimated that Parsons would have contributed around $3.3 million to the family if he worked until age 70. They calculated the financial loss of Jenkins, president of his family business, Allegany Coal and Land, at around $4.5 million. In a second estimate that included the value of dividends from the company, the loss was as great as $12.2 million.

Midwest blamed the crash on pilot error.

Parsons’ widow, told the Frederick News-Post, “The biggest thing I wanted was for my husband’s name to be cleared,” Ashlee Parsons said. “He was an amazing pilot.”

Colorado Woman, Paralyzed by Medical Malpractice, Recovers $14.9 Million

Bruce Braley of Leventhal & Puga PC in Denver, CO.

Bruce Braley of Leventhal & Puga PC in Denver, CO.

A Colorado jury awarded a 57-year old woman and her husband $14.9 million in a case whereas she was paralyzed by an epidural steroid injection that was clearly labeled as not for that use.

The jury found The Surgery Center in Lone Tree, CO, liable.

The plaintiff, Robbin Smith of Castle Rock, CO, was 57 when she received the injection of Kenalog in 2013. She was immediately paralyzed from the waist down.

Two years before she got the injection, Bristol-Myers Squibb got FDA approval to change its label for Kenalog to state: “Not for Epidural Use.”

“This verdict won’t restore Robbin’s ability to walk,” attorney Bruce Braley of Leventhal & Puga told the Denver Business Journal. “But it will give Robbin and Ed the chance to make the most of the life they now have.”

Smith’s attorneys showed the jury examples of bottles, packages, and labels with the printed warning. The warning label included language describing the adverse reaction that paralyzed Smith: “Spinal cord infarction, paraplegia, quadriplegia, cortical blindness and stroke (including brainstem), have been reported after epidural administration of corticosteroids.”

Doctors never informed Smith of these label warnings.

Study: Fewer Medical Malpractice Claims, But Increase in Awards

Adam Schaffer, MD, a hospitalist at BWH and lead author of the paper.

Adam Schaffer, MD, a hospitalist at BWH and lead author of the paper.

Using data from the National Practitioner Data Bank (NPDB), a centralized database of paid malpractice claims that was created by Congress in 1986, physicians at Brigham and Women’s Hospital analyzed the trends in paid medical malpractice claims for physicians in the United States from 1992 to 2014.

“We’ve found that there was an overall drop in the amount of paid claims across all specialties, but that the magnitude of the decline was markedly different by specialty,” said Adam Schaffer, MD, a hospitalist at BWH and lead author of the paper.

This is the first analysis to evaluate paid claims by physician specialty at the national level. The findings are published in the March 27, 2017, issue of JAMA Internal Medicine.

Researchers report that the overall rate of claims paid on behalf of all physicians dropped by 55.7 percent. Pediatricians had the largest decline, at 75.8 percent, and cardiologists had the smallest, at 13.5 percent. After adjusting for inflation, researchers found that the amount of the payment increased by 23.3 percent and was also dependent on specialty. Neurosurgery had the highest mean payment, and dermatology had the lowest. The percentage of payments exceeding $1 million also increased during the same time period.

“Previous research has shown that physicians’ perceptions of their risk of liability can influence their clinical decision-making, and a better understanding of the causes of variation among specialties in paid malpractice claims may both improve patient safety and reduce liability risk,” said Allen Kachalia, MD, chief quality officer at BWH and senior author of the study.

Error in diagnosis

Additionally, the authors report that the most common type of allegation was an error in diagnosis (31.8 percent of all paid claims), followed by errors related to surgery (26.9 percent) and errors related to medication or treatment (24.5 percent). Thirty-two percent of paid claims were related to a patient death, with pulmonologists most likely to be involved in a claim that involved a patient death. Plastic surgery and dermatology had the highest percentage of claims that were considered low-severity, with minor physical or emotional injury.

“Specialty-specific information about paid claims may help inform decisions about the approaches needed to simultaneously improve patient safety and reduce liability,” write the authors.

They note that their analysis is limited by the information available in the data sets that were used, the NPDB and the American Medical Association Masterfile. The AMA Masterfile provided the number of physicians by specialty, but does not account for clinical volume. The NPDB includes information about claims settled on behalf of individual physicians, but does not include data about claims for which no payment was made and for those settled on behalf of institutions.

Paper cited: Schaffer et. al. “Rates and Characteristics of Paid Malpractice Claims Among US Physicians by Specialty, 1992-2014.” JAMA Internal Medicine. March 27, 2017. doi:10.1001/jamainternmed.2017.0311

Archdiocese of Chicago To Pay $3.15 Million Settlement in Sexual Abuse Lawsuits

Chicago plaintiff attorney Lyndsay A. Markley

Chicago plaintiff attorney Lyndsay A. Markley

Chicago plaintiff lawyer Lyndsay A. Markley marks another victory as she settled three more lawsuits against theArchdiocese of Chicago, involving the sexual abuse of minors by defrocked priest Daniel McCormack in the amount of $3.15 million.

Markley settled a separate lawsuit representing another victim with the Archdiocese for $2.3 million earlier this year.

Attorney Lyndsay Markley of The Law Office of Lyndsay A. Markley, Ltd.represented the following three victims who alleged that McCormack sexually abused them during their participation in an after-school program, which was ironically named ‘S.A.F.E.’

John M. Doe (15 L 3700) sued the Archdiocese of Chicago in April of 2015. He alleged that McCormack sexually abused him on two occasions on or about the years 2000/ 2001 when he was 13/14 years old. This case was scheduled to proceed to trial in July 2017.

John T. Doe (2015 L 3702) sued the Archdiocese of Chicago in April of 2015. He alleges he was abused on more than one occasion between 2003 and 2005.

John J. Doe (originally filed as 2015 L 6864 before consolidation for discovery and trial with 15 L 3702) sued the Archdiocese of Chicago in July of 2015. He alleged that McCormack sexually abused him during his attendance at the after-school program at Our Lady of the Westside Catholic School. The victim alleges that he was sexually abused on more than one occasion on or about the years 2003 through 2005.

Unfit to work with children

All of the lawsuits alleged that, although the Archdiocese of Chicago and Cardinal Francis George had credible information confirming McCormack’s unfitness to work with children as early as 1994, they still allowed him continued access as a teacher, basketball coach and priest. McCormack was not removed from the public ministry until his second arrest in January 2006. He was permanently removed from the priesthood in November 2007 and pleaded guilty that year to abusing five children.

The parties settled these cases on March 17, 2017.  Dismissal orders were entered on John J. Doe and John T. Doe before Judge John P. Callahan of the Cook County Circuit Court on April 10, 2017.

A dismissal order for 2015 L 3700 (John M. Doe) was entered on April 11, 2017, before the Honorable Kathy M. Flanagan of the Circuit Court of Cook County.

Chicago-based attorney, Lyndsay Markley (www.lmarkleylaw.com) has dedicated her legal practice to fighting for persons who suffered injuries or death as the result of the wrongful or careless conduct of others. She set up her own law practice in February 2014 after serving as a named, equity shareholder at another established Chicago law firm.

Her awards include:

  • Acknowledgment as an Illinois SuperLawyer for 2017 by SuperLawyer: SuperLawyers & Chicago Magazine
  • 10 Best Under 40 2014-2016 Award from the American Institute of Personal Injury Attorneys
  • Top 100 Trial Attorneys in Illinois and a Top 40 Under 40 Trial Attorney for 2014-2016 by the National Association of Trial Lawyers
  • A Super Lawyers Illinois’ Rising Star in 2013, 2014, 2015 & 2016
  • A Top Women Lawyer in Illinois in 2014 by Super Lawyers and Chicago Magazine.

Third Circuit Revives 5,000 Broken-Bone Cases in Fosamax Litigation

Edward Braniff of Simmons Hanly Conroy LLC in New York

The Fosamax ruling is good news for plaintiff attorney Edward Braniff of Simmons Hanly Conroy LLC in New York.

Handing plaintiffs a major success, the Third Circuit US Court of Appeals revived 5,000 product liability cases involving the osteoporosis drug Fosamax, ruling that federal preemption of state-law claims is a question of fact for a jury to decide, not a question of law for a judge.

The ruling in In re Fosamax Products Liability Litigation, Case No. 14-1900 et al, decided March 22, 2017, is a major setback for Merck and other Big Pharma companies that seek to torpedo patient claims in summary judgment motions, by arguing that:

  1. State-law failure-to-warn lawsuits are pre-empted by federal law
  2. When there is “clear evidence” that the FDA would not have approved a warning label that the plaintiffs claim is necessary.

On the other hand, the ruling is a boon to plaintiff lawyers who are striving to preserve their lawsuits against preemption attacks that have nothing to do with the merits of the case.

What is “clear evidence”?

The US Supreme Court Opinion created confusion about the preemption issue in Wyeth v. Levine, 555 U.S. 555 (2009). The ruling says that state-law failure-to-warn claims are preempted by federal law when there is “clear evidence” that the FDA would not have approved a label change. “This standard is cryptic and open-ended, and lower courts have struggled to make it readily administrable,” the Third Circuit commented.

Resolving the issue, the Third Circuit held that “The meaning of “clear evidence,” as Supreme Court usage confirms that the term is synonymous with “clear and convincing evidence.” The latter is a well-recognized intermediate standard of proof—more demanding than a preponderance of the evidence, but less demanding than proof beyond a reasonable doubt.”

Furthermore, the appeals court ruled:

  • Whether the FDA would have rejected a label change is a question of fact for the jury.
  •  At the summary judgment stage, the court cannot decide for itself whether the FDA would have rejected a change, but must instead ask whether a reasonable jury could find that the FDA would have approved the change.
  • A mass tort MDL is not a class action. Merck’s actual burden at the summary judgment stage was to prove that there is no genuine dispute in every single MDL case that plaintiffs’ doctors would have continued to prescribe Fosamax even if a fracture warning had been added to the Adverse Reactions section before May 2009.

The successful argument to the Third Circuit was made by plaintiff attorneys Edward Braniff of Simmons Hanly Conroy LLC in New York, Michael E. Pederson of Weitz & Luxenberg in New York, and Donald A. Ecklund of Carella Byrne Cecchi Olstein Brody & Agnello in Roseland, NJ.

Fosamax causes thigh fractures

Beginning in 2010, hundreds of plaintiffs filed personal-injury suits against the drug manufacturer Merck Sharp & Dohme, alleging that the osteoporosis drug Fosamax caused them to suffer serious thigh bone fractures.

Each Plaintiff brought a state-law tort claim alleging that Merck failed to add an adequate warning of the risk of thigh fractures to Fosamax’s FDA-approved drug label. Many Plaintiffs also filed additional claims including defective design, negligence, and breach of warranty. Plaintiffs’ suits were consolidated for pretrial administration in a multi-district litigation in the District of New Jersey. Following discovery and a bellwether trial, the District Court granted Merck’s motion for summary judgment and dismissed all of Plaintiffs’ claims on the ground that they were preempted by federal law.

Plaintiffs’ suits were consolidated for pretrial administration in a multi-district litigation in the District of New Jersey. Following discovery and a bellwether trial, the District Court granted Merck’s motion for summary judgment and dismissed all of Plaintiffs’ claims on the ground that they were preempted by federal law.

Fosamax is a treatment for osteoporosis, but plaintiffs claim that the drug actually increases the risk of thigh bone fractures. Plaintiffs claim that while stress fractures typically heal on their own, “some Fosamax users who develop insufficiency fractures have reduced bone toughness, and Fosamax prevents the normal repair of the fracture.” According to Plaintiffs, these patients may then go on to develop what are known as “atypical femoral fractures”: severe, non-traumatic, low energy complete fractures of the femur.

In 2013, Merck reached a separate settlement of $27 million with 1,200 Fosamax users who suffered necrosis of the jawbone.

Opportunities to Start or Grow a Xarelto Mass Torts Practice

XareltoThe courts are seeing an explosion in Xarelto products liability cases.

  • The multi-district litigation docket (MDL) was only created in 2014 in the eastern district of Louisiana. Started out with 21 cases.
  • By the end of 2014, there were more than 400 cases.
  • By Dec 2015, the docket exploded to 2,400 cases.
  • Six months later in April, 4,500 cases were filed.
  • The litigation really took off in 2016 and there are now more than 15,000 cases.

Right now is an excellent time to start a practice in mass torts cases involving Xarelto, a blood-thinning drug. The main driver is the first bellwether (test case) trial, which is coming up on April 24, 2017, with the second one scheduled for May 30.

When that takes place, attorneys will see widespread marketing for clients and patients who took Xarelto. Marketing experts say the time to get involved is right now.

The two defendant companies — Janssen Pharmaceuticals and Bayer — are facing a potential liability of $2.5 billion, based on settlements in similar cases. Estimates place the settlement value up to $500,000 in a wrongful death case, and the average settlement could be $162,000.

Easy to start a Xarelto practice

Want to learn more about starting or expanding a Xarelto practice? Watch the webinar “Mass Torts Marketing: Xarelto

At this point, it’s very easy to get involved in Xarelto litigation. The court has established both short and long-form complaints. So essentially, all that an attorney needs to do is find a client and fill in the blanks as appropriate. The defense has put together a plaintiff fact sheet that goes through questions about the medical history of the patient, also available from the court, that’s a fill-in-the-blanks sheet.

A mass torts practice is quite different from typical personal injury cases where the facts and defendants change from client to client. With mass torts, an attorney has a fixed set of facts and defendants. The primary effort that needs to be put in is acquiring new clients.

With more than 15,000 cases already, attorneys might be asking: are there any more plaintiffs out there to find? And the answer to that is yes — there are many more potential plaintiffs. More than 7 million people worldwide have been prescribed Xarelto, and at least 2 million Americans have atrial fibrillation that’s treated with Xarelto. All of these people are potential plaintiffs.

The two defendant companies are facing a potential liability of $2.5 billion, based on settlements in Pradaxa cases in 2014. The settlement value could be up to $500,000 in a wrongful death case, and the average settlement could be in the neighborhood of $160,000.

Xarelto was designed to replace an older drug called warfarin (Coumadin). Warfarin still in use today. It was originally approved in 1954 by the FDA, it can easily be reversed with Vitamin K, the blood element that causes clotting.

Warfarin requires the doctor who prescribed it to monitor a patient’s diet and dosage carefully. Xarelto, on the other hand, was marketed as a once-a-day dose, despite that it has a short half life: between 5-9 hours.

There was a strong profit motive to create a new drug when warfarin became generic. The lowest available price of 30 standard warfarin tablets is $4. The lowest price for 30, 5 mg Xarelto tablets? — $405.

It is clear why Xarelto became a blockbuster drug for Johnson & Johnson: In 2014, the company had sales totaling $3.7 billion for Xarelto alone.

Xarelto has no reversal agent

The FDA approved Xarelto as a once-a-day blood thinner to reduce the risk of blood clots after hip or knee replacement surgery in July 2011. A few months later in November 2011, it was approved to reduce the risk of stroke from atrial fibrillation. Then in November 2012, the agency expanded it to treat deep vein thrombosis and pulmonary embolism.

Since Xarelto went on the market, the manufacturers ignored the dangers of Xarelto. It has no reversal agent or antidote, and can cause uncontrollable internal bleeding. Also, the plaintiffs allege that Xarelto can actually cause strokes and blood clots if discontinued abruptly. The plaintiffs also charge that the makers of the drug failed to warn users and actually concealed the fact that Xarelto causes uncontrolled internal bleeding.

xarelto celebrities vickers palmer nealon

Arnold Palmer took Xarelto and died on September 25, 2016, which was preceded in August 2016 by surgery for gastrointestinal bleeding.

Meanwhile, Janssen and Bayer continue to advertise Xarelto aggressively. One TV commercial featured comedian Kevin Nealon, NASCAR driver Brian Vickers and Hall of Fame golfer Arnold Palmer. The 87-year old Palmer wore a pink sweater and said, “Treatment with Xarelto was the right move for us.” Many people are wondering if that is true in the wake of his death on September 25, 2016, which was preceded in August 2016 by surgery for gastrointestinal bleeding. See Did Xarelto, the Drug Arnold Palmer Promoted, Lead to His Death?

Xarelto Litigation Overview

The vast majority of Xarelto cases are in multidistrict litigation Eastern District of Louisiana before Judge Eldon Fallon, where the bellwether trial is coming up.

Meanwhile, a smaller cluster of 1,100 claims have been filed in the Philadelphia Court of Common Pleas in Pennsylvania state court before Judge Arnold New. Finally, there’s a small group of 31 cases in California Superior Court before Judge Kenneth Freeman in Los Angeles.

The plaintiff in the April 24 bellwether trial is Joseph Boudreaux, Jr. in Lafourche Parish, Louisiana. He was prescribed Xarelto in 2014 for atrial fibrillation. He only took the drug for 21 days before he suffered severe gastrointestinal bleeding, and he survived only because of several blood transfusions.

Companies Ignored Danger Signals About Xarelto

Evidence will be presented at the trial how Bayer and Janssen ignored many danger signals.

Studies began showing as early as 2008 that Xarelto was more dangerous than other blood-thinning drugs. The New England Journal of Medicine published articles in 2008, 2011 and 2012 all of which discussed an increased risk of adverse events.

In 2012, the FDA recorded “serious adverse events” reports about Xarelto. This was the first year after the drug was on the market and there were 2,081 serious adverse events. 151 of those were deaths, compared to only 56 deaths from warfarin.

In 2013 and 2014, the FDA required that Xarelto drugmakers include boxed warnings.

  • In 2013, the FDA required that Xarelto include a warning that premature discontinuation of Xarelto® increases the risk blood clots.
  • In 2014, the FDA required that Xarelto include a warning that it can cause internal bleeding. The warning must also state that a specific antidote is not available for Xarelto.

Estimated Settlement Values

The prevailing view about a settlement is that nothing will happen until the litigation affects the stock price of Bayer and Johnson & Johnson. This may happen this year, based on settlements involving a similar blood thinner called Pradaxa.

Pradaxa was approved in 2010 before Xarelto and it was a commercial success, generating huge sales for Boehringer-Ingelheim. Unfortunately, like Xarelto, Pradaxa didn’t have an antidote for bleeding. Thousands of lawsuits were filed, and in 2014, Boehringer-Ingelheim settled 4,000 cases in state and federal courts for $650 million. Individual settlements ranged from $500,000 to $12,000.

For purposes of calculating how big a settlement for Xarelto might be, lawyers can start with the average Pradaxa settlement of $162,500.  When multiplied by the 15,611 cases that are currently filed in the federal MDL, this produces a potential liability of $2.53 billion.

This is why Xarelto is an  attractive addition to a personal injury practice.

Xarelto Marketing For Lawyers: How To Add Xarelto To Your Law Firm’s WebsiteHow do you get more clients?

To learn about attracting potential clients for Xarelto cases, watch the webinar sponsored by LawLytics. Do you have questions about marketing a mass torts practice? LawLytics can help. Call at 800-713-0161 or schedule our call.

 

 

Anonymous Reviewer Who Criticized Attorney on Avvo Steps Forward

Attorney Deborah Thomson of The Women’s Law Group in Tampa, FL

Attorney Deborah Thomson of The Women’s Law Group in Tampa, FL

Two years after an unsuccessful court battle to discover the identity of a negative reviewer on Avvo, the anonymous client who criticized a Florida divorce attorney has come forward and identified herself.

“Jane Doe” is Holly Dickson of Tampa, Florida, and she is still pursuing her divorce case, now nine years old. Dickson, age 50, has lived in Tampa since 1976 and is a real estate agent. “Everyone at courthouse knows who I am,” she said in an interview.

Dickson posted an anonymous review on Avvo on September 24, 2013, headlined “Things to consider.” She gave Tampa Divorce attorney Deborah Thomson a one-star rating saying, “Her lack of basic business skills and detachment from her fiduciary responsibilities has cost me everything. … My interests were simply not protected in any meaningful way.”

Court refuses to identify reviewer

Thomson sent a subpoena to discover Dickson’s identity, but was denied by the Washington State Court of Appeals in July 2015. Thomson also filed a libel-slander lawsuit against “Jane Doe” on May 21, 2014, but it was dismissed for lack of prosecution on Jan. 21, 2016.

Online reviews are a touchy subject for attorneys, who fear negative comments on Yelp, Facebook, Avvo and many other review sites.

To prove her identity, Dickson furnished the June 2, 2008, attorney engagement letter, the Sept. 4, 2008, final judgment of dissolution of marriage, the marital settlement agreement, and a variety of other documents. Her case is Joel B. Felty v. Holly Ann Felty Dickson, Case No. 08-DR-009606, Hillsborough County, Florida, Circuit Court.

“I feel strongly about the need for a consumer to speak the truth about their experience. I have spent a lot of money on attorneys,” Dickson said. “I have lost my retirement, I was insolvent within nine months of my divorce.  I agreed to no alimony. I have no guaranteed income. I have no retirement, lost an excellent credit score and will surely be working for the rest of my life.”

Asked if she would change the Avvo review today, Dickson said, “I would be far more severe in my commentary.”

Allegations “untrue”

In 2008 Thomson, whose name was Deborah Stewart at the time, was an associate at Catherine W. Real, P.A. in Tampa. The Dickson divorce case was assigned to Thomson.

Thomson, who is now practicing with The Women’s Law Group in Tampa, said in an email, “Ms. Dickson had been a client of a former employer of mine toward the end of my time as an employee at that office.  It was some time after the post by Ms. Dickson that I discovered that she authored this “review.”  

“I completely stand by my response to her post, as her allegations are simply untrue.  I do not condone what she did to me, and although I will not resort to the same tactics concerning her behavior, a simple look at the extensive docket for her post-dissolution case, anonymous reviews of other attorneys that have represented her in the past, as well as other cases in which she is involved, illustrate the real problem.”

Regarding a possible new libel lawsuit, Thomson said, “I have not yet decided at this time whether I plan on continuing to pursue this matter with a civil lawsuit against Ms. Dickson. I am hopeful that my written response to Ms. Dickson’s falsities has provided a potential reader with enough information to understand.

Thomson said she stands by her online response to the negative review. “I would respond just the same, with the exception of clarifying that she retained my employer’s office while I was an employee.  As I said, her allegations about me are untrue.

“There are many other professionals that have had to deal anonymous, untrue “reviews” by disgruntled individuals.  I am hopeful that one day, Avvo, and other similar websites, will begin to verify online reviews prior to allowing them to be posted in order to protect innocent individuals like myself that fall victim to someone’s anger and unethical behavior.”

Acrimonious divorce

Dickson’s divorce case has been long and acrimonious. She and her ex-husband, Joel Felty, were co-owners of a successful business, Creative Modular Buildings in Tampa. In the marital settlement agreement she gave up her share in the business in exchange for the marital home in Tampa. She also received $217,000 in various accounts, although she now says she was entitled to $600,000.

“The settlement agreement was a poor contract from the get-go. I was so upset with the lack of depth of knowledge of my attorneys,” Dickson says. “This has been the worst thing in my life. I lost my credit, my finances, I’m here in terrible shape and still need to take ex back to court,” she says.

Two years ago Avvo refused to identify Dickson as the online reviewer, and Avvo told Thomson he believed the reviewer was a client.

Thomson subpoenaed Avvo seeking the identity of the anonymous detractor. The trial court denied her and the appellate court affirmed. Thomson v. Jane Doe, No. 72321-9-I, filed July 6, 2015.

“The First Amendment protects the right to speak anonymously,” the court said, saying Doe’s speech is entitled to an intermediate level of protection.

$11.25 M Verdict Obtained for Family of Young Mother Killed in 2015 Double Fatal Crash

Attorneys Eirene N. Salvi, Patrick A. Salvi, and Patrick A. Salvi II of Chicago.

Attorneys Eirene N. Salvi, Patrick A. Salvi, and Patrick A. Salvi II of Chicago.

A Winnebago County, Illinois, jury award  $11.25 million jury verdict on behalf of the family of a 33-year-old mother who was killed in a 2015 double fatal crash.

Attorneys Eirene N. Salvi, Patrick A. Salvi, and Patrick A. Salvi II of the Chicago personal injury law firm Salvi, Schostok & Pritchard P.C. represented the plaintiffs. Patrick Salvi is a member of The National Trial Lawyers Top 100 Attorneys.

On February 6, 2015, around 8:45 a.m., an employee of Anderson Automotive, Inc. was driving a 2004 Mazda RX8 westbound in the 5200 block of Guilford Road near Roxbury Road when he swerved into the eastbound lane of traffic, striking a 2001 Ford Taurus driven by 33-year-old Chamicwa Black.

The Anderson Automotive employee was pronounced dead at the scene. Ms. Black was taken to OSF Saint Anthony Medical Center, where she later died.

Ms. Black’s son, Jaquan, who was 8 years old at the time of the crash, was taken in by his grandmother, Venus Black. Jaquan has suffered significantly and was forced to transfer schools due to bullying regarding his mother’s death.

Company admits negligence

“Chamwica was a loving and protective mother whose life was cut too short because of this driver’s negligence. Chamwica’s son has had to go through life without the guidance and support of his wonderful mother,” The Black family’s attorney Patrick A. Salvi said. “I am so glad the jury recognized the magnitude of this loss.”

Anderson Automotive admitted negligence for the collision. On Friday, March 31, 2017 a Winnebago County jury awarded the family of Chamicwa Black $11.25 million. The case is Estate Of Chamicwa Black, Deceased, By Venus Black, Administrator; Plaintiff, V. Anderson Automotive, Inc. Defendants, Case No. 15-L-82.

“This award will help take care of young Jaquan and pay for any counseling,” Mr. Salvi said.

The defendant, Anderson Automotive, Inc., was represented by Harvey Paulsen and William Nickol of Paulsen, Malec & Malartsik, and were insured with Sentry Insurance for over $15 million. The defendant’s last offer was $2 million.

The plaintiffs were also assisted by attorney Aaron D. Boeder of Salvi, Schostok & Pritchard.

Women Trial Lawyers — Is a Woman Really the Best Person for the Job?

Kim Adams, Levin, Papantonio, Thomas, Mitchell, Rafferty and Proctor

Kim Adams, Levin, Papantonio, Thomas, Mitchell, Rafferty and Proctor, P.A

By Kim Adams, Levin, Papantonio, Thomas, Mitchell, Rafferty and Proctor, P.A

With this year’s election, the issues of gender equality and diversity were more prevalent than ever. Women from every profession spoke up about women’s issues, and the legal profession was at the forefront. There was a huge movement among female lawyers to unify and conquer the importance of gender diversity in our profession. Women decided it was time for the unconscious bias, stereotyping, and assumption about women’s competency in law firms and courtrooms around the country to reverse.

Women and men both need opportunity, access, and support to reach the highest levels of achievement in our profession, but historically women receive far less access and meaningful support than their male counterparts. Helpful support is more than lip service that an opportunity is available; it’s creating mentorship and outward acknowledgment that she is best for the job.

This year we saw new associates congratulating senior partners for specific accomplishments, and more importantly, senior partners sincerely acknowledging the work of younger lawyers and giving them the reigns to lead the charge. Yes, this year we took strong and confident positions on matters impacting women and made sure we were heard. We used our political and financial influences to start moving what were once seemingly unmovable mountains.

After years of being underrepresented, underestimated, and undervalued, women trial lawyers took every opportunity to use their unique skill sets. But, did the voices of so many women make a difference? It certainly seems to be moving in the right direction, at least in the world of product liability law, where for years women have taken a back seat, from working litigations from behind the scenes to now being the voice and faces of important litigations.

In the past, it was extremely uncommon for women to be appointed to leadership positions, first chair trials, conduct global settlement discussions, or have control over the big cases as frequently as male coworkers, but times they are a-changing. And, it’s more than the request for gender diversity that is making a difference.

Finally, women trial lawyers are actually being recognized by other women and their male counterparts for their specific work on these large product cases.

Our results are speaking for themselves; we just needed a platform, access, and opportunity. Woman trial lawyers are strong, resourceful, empathetic, and unfortunately the target market for many under-researched and defective products. Women understand the damages the products cause, especially when it comes to women-centered issues. We are major consumers, graduate at the tops of our law school classes, and represent more than half of the audience who will direct the fate of our clients. Proudly, we are moving mountains.

Women Are the Target Market

It is estimated that women account for more than 85% of all consumer purchases and is impacted by direct-to-consumer marketing much more frequently than men. It is no secret that Big Pharma works a lot harder to sell products than develop new ones. It certainly is not as profitable for a company to develop new products; rather, the real profits come from making minor variations to existing drugs. It has been estimated that for every dollar a pharmaceutical company spends on “basic research,” $19 goes towards promotion and marketing. Women take the brunt of the failures of Big Pharma and women trial lawyers understand consumer expectation because we are the major consumer.

Some of the most profitable drugs and devices for Big Pharma are the most dangerous for women. It is certainly not the intention to suggest that women are better for female-centered litigation, no more than men are better for male-centered litigation. It is important, however, that both genders be included, and to point out the benefits to including both genders.

And, to that end, no one is more frustrated and invested in discontinuing the practice of using women’s bodies as guinea pigs than women. Manufacturers target common emotions, physical characteristics, and reproductive systems with little regard for the well-being of the consumer.

For example, in the Prempro case, hormone replacement therapy (HRT), the risk of breast cancer, stroke, dementia and other severe illnesses were hidden from women for years. The hormone replacement case was a prime example of Big Pharma using marketing to convince women that there was an easy fix for common hormonal symptoms, and more importantly convinced the scientific community to continue to use dangerous products and downplay risks. In 2002, the Women’s Health Initiative (WHI) conducted the largest randomized, placebo-controlled trial of menopausal hormone therapy ever performed. The study was stopped early because of its harmful findings.

Yet, gynecologists continued to use these dangerous drugs because they did not find the WHI findings convincing. Dr. Adriane Fugh-Berman with Georgetown University Medical Center decided to find out why so many gynecologists doubted the findings of the WHI study. They evaluated 50 articles on the WHI study finding that 64 percent presented the WHI study with pro-hormone promotional language, and that 8 of the 10 targeted authors declared receiving consulting or speaking payments from manufacturers of menopausal hormones. They also uncovered that three of the authors had conflicts of interest and/or recycled sections of text word-for-word (without citation) in different articles. It was estimated that Pfizer had made $2 billion from drug sales and anticipated paying $772 million to help resolve claims. That’s a billion-dollar profit.

Mass tort litigation

In the Paxil litigation, women and children were victims of what was likely the biggest marketing ploy in history. Big Pharma took full advantage of the public, primarily women, and spent billions to promote the idea of a chemical imbalance (not proven to exist) and the ability to correct that imbalance with a pill. The manufacturers of these drugs made it top priority to create markets and disorders permitting them to continue their assault on women. Paxil’s product director stated “[e]very marketer’s dream is to find an unidentified or unknown market and develop it. That is what we were able to do with social anxiety disorder.”

GlaxoSmithKline won five patent extensions over five years to increase its profits by $5 billion dollars by creating new markets or diagnoses for its medication. Eli Lilly was able to get premenstrual dysphoric disorder (PMDD) approved with no empirical evidence of its existence. In the end, the Paxil litigation finally uncovered what the manufacturers knew for 15 years — Paxil caused heart defects in babies during the first trimester of pregnancy. The devastation, judgment, and guilt felt by the women taking these medications was unfathomable and likely best understood by other women.

Another example of products directed at women is transvaginal mesh, marketed as a quick and easy fix for incontinence. More than 100,000 women joined in the litigation alleging significant injuries related to mesh erosion, infection, or chronic pain, which often ended their sex life. Women implanted with faulty mesh either experienced multiple surgeries, organ removal, and/or lifelong pain, a risk-benefit profile fully understood by women.

Similarly, talcum powder was marketed to women for use with feminine hygiene while hiding the warning of deadly ovarian cancer. Some experts estimate that 10–15% of all ovarian cancer cases are related to the use of talcum powder. Sadly, it is estimated that there are 20,000 new cases of ovarian cancer diagnosed each year. The magnitude of the women impacted by these products is unfathomable, and marketing strategy, hygiene routines, and benefit profile easily understood by women.

One final example is Essure, which was marketed as an alternative and permanent form of birth control. Since its introduction, tens of thousands of women have reported devastating injuries, including organ removal, chronic and significant pain, excessive bleeding, and severe mood changes, migrated and embedded devices, hundreds of fetal deaths, and even deaths of the user. The warning label for this product has been changed a number of times, and most recently a black boxed warning was added to the label to warn women of the risk. As with other women-centered products, this one should be off the market as the risk and benefit profile weighs heavily on the side of too much risk for women to take.

Where Is the Diversity in Leadership?

The need for gender diversity in litigation is often on the list of priorities, but what exactly is being accomplished? Professor Russel Pearce at Fordham University, who has studied issues of diversity was quoted in saying that “[Women and minorities] know that they’re not going to get an equal chance if they go to a big firm. It doesn’t mean they’ll get zero chance. It just means that they won’t get the same opportunities that a white man will get.” Unfortunately, this is still true in many areas of the country, but with more flexibility, true effort to provide support and opportunity, this realism could be a thing of the past.

We have seen the lack of diversity time and time again in mass tort litigations, including in women-centered litigations. For example, in Prempro, HRT litigation discussed above, out of more than 25 leadership appointments, women held only four spots. In the Yaz litigation, where the marketing tactics were arrogant and clearly without any regard for the more than 12,000 women who would allege strokes, death, and other severe injuries related to use of this product, only one woman made the leadership committee of 17.

Similarly, in the Zoloft litigation, where women and children alleged injury due to exposure, there were 16 leadership positions, but again only four women made the cut. Although the stats go on and on, a 2014 study made an attempt to analyze gender quality in product liability MDLs. The data indicated that men were appointed lead counsel 11.8 times more often than women from 2000–2004 and close to seven times more often from 2005–2009.

Judges Recognize the Need for Gender Diversity

Judges have become more outspoken about the need for gender diversity in all cases. In the Mirena litigation, (IUD prescribed to prevent pregnancy), Judge Cathy Seibel urged lawyers to include women among the ranks in their leadership. “I think that’s important.” Still, out of the 16 spots open for leadership, only 6 were women and zero women were lead counsel. In the Fluoroquinolone litigation, the judge questioned why no women were on the PEC slate and urged adding one immediately.”

In November 2015, Judge Kathryn Vratil appointed 11 female lawyers to a 20-lawyer executive committee overseeing approximately 300 cases in the In re: Ethicon Inc. Power Morcellator Products Liability Litigation. This was the first-time women made up the majority of a leadership committee in an MDL proceeding. Finally, on December 9, 2016, Judge Freda Wolfson appointed women as co-lead counsel and as 1/3 of the entire committee in the Talc litigation.

Certainly, not all women or men are supportive of the effort to increase gender diversity arguing that gender diversity efforts do not always promote the best person best suited for the job. Respectfully, I would disagree. The bottom line is that without promoting and providing the access for women to get to the table, the ability to truthfully consider the best person for the job is lacking. Where nearly 50% of students graduating law school are female, diversity is critical.

Women are dominating the market, targeted and impacted significantly by Big Pharma, graduating at the top their class, and over half of our audience. If law firms do not continue to make immediate strides toward becoming more gender diverse and do a better job promoting and accepting gender diversity in their firms, they will run the risk of alienating the next generation of lawyers, and possibly clients.