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Federal Court Determines Pharmaceutical Sales Representatives Are Not "Outside Salesmen"

Zev Antell — Thu, 02 Apr 2009 18:33:32 GMT

On March 30^th, a Connecticut Federal court found that the FLSA’s “Outside Salesman” exemption did not apply to Pharmaceutical Sales Representatives. In issuing its ruling the court resisted the temptation to concede to legal fictions created by other courts in order to justify withholding overtime compensation. Without getting too technical, at the core of the ruling is the fact that Pharmaceutical Sale Representatives do not actually sell anything. In fact, federal and state law precludes them from making the very sales that would make them exempt. Rather, their role is to inform health care providers about the benefits of a given drug and to attempt to convince those professionals to write prescriptions. In order to be exempt under the FLSA as an outside salesman, you first have to actually sell something. This decision means that thousands of Pharmaceutical Sales Representatives (sometimes referred to as “Drug Reps” or “Drug Representatives”) may be entitled to countless hours of previously unpaid overtime compensation. Overtime compensation is calculated as one and a half times your regular rate of pay for those hours beyond forty worked in a single week. Typically, Drug Reps make a good living, but the work requires long hours, often well beyond forty in a single week. Thus, it is not a stretch to think individual Drug Reps might be able to recover tens of thousands dollars for unpaid overtime accrued over just a couple of years.

For those readers interested in reading the court’s 3/30/09 opinion in Kuzinski v. Schering Corp., it is currently available at 2009 U.S. Dist. LEXIS 25702.

Originally posted at InjuryBoard by Zev Antell

Owners Accountable for Dangerous Dogs

Staff Writer — Tue, 14 Mar 2006 11:23:36 GMT

This past weekend, a casual stroll through many of the parks in the Richmond, Virginia area would you have made you think it was "pitbull weekend". Strangely enough, there were dozens of owners walking their dogs with make shift leashes. In many instances, it appeared that the dogs were actually walking their owners.

On Sunday, one pitbull got loose in Monroe Park and attacked at least five people, causing puncture wounds from the dog's teeth. Witnesses at the scene told police that the dog was not provoked and just went "wild". The owner admitted to one reporter that this dog had been known to attack. Notwithstanding, he decided to take this dog for a walk without a muzzle or any special chain.

The Virginia General Assembly has approved legislation that would hold dog owners accountable and even become a felony conviction, if their dog attacks an individual. Under Senate Bill 200, a dog will be declared dangerous if it injures a person, cat, or other dog that was not on it's owner's property. Once that dog is then declared dangerous, the owner could face a maximum of a 5 year prison sentence as well as a $2,500 fine, if the dog again leaves the owner's property and attack a person. If the dangerous dog attacked another dog or cat, the owner could face a misdemeanor charge that would be punishable up to six months in jail and $1,000 fine.

It seems that the news regularly features stories of animals attacking neighbors and the unsuspecting. In fact, Senate Bill 200 was introduced a little over a year after three pitbulls attacked an 82 year old woman in Spotsylvania County, killing her and her dog.

Now, individuals will not only face the possibility of civil accountability for creating these dangerous conditions, but they will also now face a real criminal accountability as a result of allowing their dangerous animal to attack. The criticism of Senate Bill 200 is that it does not do enough. At the Joel Bieber Firm, we will work to hold these owners civilly accountable. Now at the least, there is some viable criminal punishment for this kind of conduct, once this bill receives signature and advances to law.

Originally posted at InjuryBoard by Staff Writer

NTSB Recognizes Need to Better Monitor Truck Driver Fatigue

Michael Phelan — Fri, 04 Dec 2009 01:00:00 GMT

Last month, Deborah Hersman , Chairwoman of the National Transportation Safety Board, spoke in Washington to the National Press Club and stated that every day over 100 Americans die in transportation accidents, mostly on our highways. After her speech, the Chairwoman turned her comments to truck accident prevention.

Chairwoma Hersman recognized driver fatigue as a major cause of truck crashes and called for Electronic Onboard Recorders (EOBRs) on all commercial trucks. Her rationale for this safety device is that NTSB "investigate accidents on a regular basis where we find two sets of log books [with one being false]." In other words, even the NTSB recognizes that fudging driver log books is a common practice to enable drivers to be on duty for more hours than is legally permitted. While not fool proof, EOBRs are harder to fudge than paper driver logs. Monitoring driver fatigue is an important safety issue.

As I discussed in a recent blog, none of these monitoring devices are of any use in civil litigation unless the evidence is preserved. The Federal Motor Carrier Safety Regulations permit trucking companies to destroy this evidence six months after the crash. That's why truck accident vicitims should consult an experienced truck accident lawyer as soon as possible. The first thing the lawyer should do is send a letter to the truck company and its insurance carrier demanding that all evidence from the truck and the scene be preserved.

Originally posted at InjuryBoard by Michael Phelan

Are Enemies of 7th Amendment Outraged About This Frivolous Defense?

Michael Phelan — Thu, 15 Oct 2009 10:29:19 GMT

Let's see if the insurance industry-sponsored lobbyists who call themselves tort reformers hold any press conferences or buy any advertisements to criticize the frivolous defense being put forth in the case where the pet chimpanzee ripped the face off of a woman. I'm not going to hold my breath waiting because this frivolous legal maneuver benefits the defendant chimpanzee owner's insurance company. Consequently, I don't expect any outrage from the so-called tort reformers. They only seem to become outraged when trials guaranteed by the Seventh Amendment to the Constitution benefit individual citizens.

In the case of the maraudering chimp, the attorney representing the owner of the beast that mauled and blinded a woman is calling the attack a work-related incident and said her case should be treated like a workers' compensation claim. The strategy, if successful, would bar the victim's claim against the chimp's owner and limit her damages to whatever is recoverable under the applicable state worker's compensation statute, which statutes typically provide for partial payment of lost wages and payment of medical bills. Claims for permanent disfigurement, pain, humiliation, embarassment and loss of enjoyment of life (sypmtoms one would expect in connection with loss of one's face) are typically not covered by worker's compensation.

Here's the genesis of the worker's comp defense. Sandra Herold owned a tow truck business called "Desire Me Motors." Travis the chimp's face was painted on the side of the tow trucks and he apparently appeared at company promotional events. Sandra Herold lives in Stamford, Connecticut where she keeps the 200-pound chimp. One day in February 2009, Ms. Herold could not get Travis to come into the house from the yard, so she asked her friend and employee Charla Nash to help lure him back into the house Stamford. The animal ripped off Nash's hands, nose, lips and eyelids, and she remains hosptialized. Nash was an employee of Herold's tow truck company. When police arrived at the scene, Travis attacked them too. The police were forced to shoot and kill the chimp. Test results showed that the chimp had the anti-anxiety drug Xanax in his system. Does helping her "friend" lure her friend's pet into the house sound like part of Nash's duties as a tow truck company employee? Not in a million years.

Nash's family filed a lawsuit against Herold, saying she was negligent and reckless for lacking the ability to control ''a wild animal with violent propensities.'' But Herold's attorney filed court papers saying that Nash was working in the scope of her employment with Desire Me Motors at the time of the attack. He argues that Travis was an integral part of the business, and that Nash's claims against Herold are barred by the workers' comp statute. I wonder if he'll be arguing that Travis was a statuory co-employee.

Here's the good news. We don't need tort reform or any other sweeping government intervention into the legal system in order to address this or any other case. The system will likely sort this case out. For the most part, we have excellent trial judges and responsible jurors in this country. I predict that this workers' compensation plea will not succeed.

Originally posted at InjuryBoard by Michael Phelan

Warning: The Adults Know All About Facebook and Myspace

Michael Phelan — Fri, 11 Apr 2008 13:55:31 GMT

I am not one of those parents who wants to invade my teenagers' privacy and spy on their MySpace, Facebook, YouTube, or other social media sites. But I do want them and other teens and young adults to understand that what they place on their Facebook or Myspace site is on the Internet forever. That means college admissions offices, future employers, and, yes, lawyers may one day check their sites. Many lawyers make a practice of researching the social media sites of all parties and witnesses in a legal case. I am amazed by the embarrassing photographs and statements people put on their sites and by the increasing number of stories about this embarrassing information coming back to haunt the subject of the photographs or author of the statements at trial or in business settings. Facebook and Myspace are no longer under the adult radar screen. In fact, the former Harvard college kids who came up with the idea for this social media recently sued the creator of Facebook for allegedly stealing their idea. Given the fact that your pages are no longer being viewed only by your friends and peers, consider doing the following. First, figure out how to activate all of the privacy features of your site. Some of the privacy settings do not prevent tech savvy investigators from accessing your site through one of your "friend's" sites. Second, and more importantly, don't be stupid and you won't have to worry about security. Don't put on your site photos of yourself getting bombed or engaging in embarrassing behavior. Don't write about illegal drug use or anything else you don't want the world to be able to read. It is becoming increasingly likely that what you put on an unsecured site will one day come back to humiliate you.

Originally posted at InjuryBoard by Michael Phelan

An Open Letter to the American Association for Justice: Reactivate the Trial Lawyers Care Volunteer Project to Help Brain-Injured Iraq War Soldiers

Michael Phelan — Mon, 12 Mar 2007 10:48:26 GMT

I read with disgust the latest news account of how the Pentagon is failing to provide necessary medical care for soldiers who suffer brain injuries in the Iraq and Afghanistan Wars. Largely because of the improvised explosive devices used by Iraq insurgents, traumatic brain injury has become the signature wound of the Iraq War. In an article titled, "For War's Gravely Injured, Challenge to Find Care," the New York Times reports that brain-injured soldiers are either written off prematurely by the Veterans Administration hospitals or not given aggressive rehabilitation options for care. The criticism of the VA, which was echoed on the Sunday morning talk shows by former Senator Bob Dole, is the government should have joined forces with civilian brain-injury treatment rehabilitation centers in time to care for these soldiers.

The NY Times article focuses on the story of Staff Sgt. Jarod Behee, who was shot in the head during his second tour in Iraq. The VA hospital in Palo Alto, California told Sgt. Behee's wife "that Jarod was not making adequate progress and that the next step was a nursing home." The hospital staff issued Sgt. Behee a wheelchair , and believed he would never walk again. Mrs. Behee said, "I just felt that it was unfair for them to throw in the towel on him. I said, 'We're out of here.'" So, Mrs. Behee quit her job, fought the Army's efforts to retire her husband into the VA health care system, and discovered that his military insurance policy actually covered private care [a fact not presented to her by the government]. She moved Sgt. Behee into a private rehabilitation center, and,three months later, her husband was walking. Sgt. Behee has permanent cognitive impairments, but is working in the rehab center as a volunteer.

Today, I sent a letter to the President of the President of the American Association for Justice asking him to reactivate the Trial Lawyers Care program (TLC). TLC was organized by the Association of Trial Lawyers of America (now American Association for Justice) to mobilize volunteer trial lawyers to assist families of people killed or injured by the 911 terrorist attacks. Volunteers like myself represented the families in their claims for compensation under the September 11th Victim Compensation Fund of 2001. This was the most rewarding work in my professional career, and I'm sure all of the other TLC volunteers felt the same way. I'm also sure the same volunteers would line up to help our brave soldiers. I call on my fellow trial lawyers to join me in beseeching the American Association for Justice to reactivate Trial Lawyers Care!

Originally posted at InjuryBoard by Michael Phelan

Electronic Cigarettes Come Under Scrutiny

Zev Antell — Fri, 24 Jul 2009 11:48:34 GMT

The debate about the deleterious effects of cigarette smoking seems to be largely settled. The public at large is now deluged with anti-smoking messages and cigarette packs are required to prominently display very ominous warning labels. Finally, in the last 15 years tobacco companies have been hit time and time again with large civil judgments in courts across the country. All that said, the myth of the healthy (or healthier) cigarette endures.

According to a recent New York Times article a product commonly referred to as an "electronic cigarette" has recently come under FDA scrutiny. Electronic cigarettes are an alternative nicotine delivery system. Whereas traditional tobacco cigarettes are lit, smoked, and inhaled, electronic cigarettes are battery operated and are not lit. Perhaps the notion is that that the user gets both nicotine and the familiarity of a traditional cigarette without the health risks of actually smoking. However, according to the FDA there are real concerns about the heath effects of electronic cigarettes.

The Times’ article points to FDA analysis that raises questions about the contents of the products. The intimation is that they contain certain known carcinogens. As the products are purportedly manufactured in China, a health official quoted in the article cites an additional worry about quality control.

Perhaps the article's most worrying point is that electronic cigarettes may be both accessible and appealing to kids as the products appear to come in fruit flavors and are sold online and in shopping malls.

Originally posted at InjuryBoard by Zev Antell

Hold Your Child Out of Sports Following a Concussion

Michael Phelan — Tue, 05 May 2009 15:24:28 GMT

I know many well-meaning parents who are guilty of allowing their child to be rushed back into contact sports following a concussion. Whether the concussion is suffered in a car accident or a sports-related incident, the same issue typically arises- the child wants to go back to sports immediately after getting checked out at the hospital. I know enough about mild brain injury to know this is usually a bad idea, particularly for children who have had multiple concussions. I've often struggled with the internal debate between not wanting to interfere with another family's decision and knowing that one can suffer mild brain damage that may not show up on the hospital CT scan. I now have a new study to cite to fellow parents.

Using a computer-based training program created to assess athletes with concussions and determine when it was safe for them to return to sports, researchers at The Children's Hospital of Philadelphia followed 116 children at an urban Level 1 trauma center over two years. The tests revealed an alarmingly high rate of cognitive deficits in nearly all patients during initial testing. The program tests specific abilities, such as attention span, memory, nonverbal problem solving and reaction time. Almost all patients tested below the 25 percentile in at least one area; the majority demonstrated significant impairment for all four subtests.

The test also assesses the degree of concussion symptoms, and the majority of children with concussions demonstrated an abnormal symptom score. The follow-up group demonstrated significant improvement in neurocognitive performance on all four subtests as well as an improvement in their symptom scores. Prior research has demonstrated that children are more likely to sustain another concussion if they return to sports or exertional activities prematurely. In addition, high school athletes recover more slowly than college or professional athletes. Presumably the same is true for children with concussion from non-sports related causes.

The authors of this study recommend that a qualified healthcare provider perform a formal assessment after hospital discharge and before a concussed child is allowed to resume exertional activities, particularly contact sports. The referenced article appears in the May issue of the journal, Annals of Surgery.

Originally posted at InjuryBoard by Michael Phelan

West Virginia Governor Exposed as Pawn of DuPont

Michael Phelan — Wed, 13 Aug 2008 12:08:01 GMT

In a story that sounds eerily like the John Grisham book, The Appeal, files released from West Virginia Governor, Joe Manchin's, office reveal that he is in bed with DuPont Company trying to get the West Virginia Supreme Court to overturn a $382 million verdict against DuPont. The case arises out of DuPont's alleged dumping of toxic arsenic, cadmium, and lead from its zinc-smelting plant in Spelter, W.Va. The underlying case alleged that these toxins entered the water supply and that DuPont deliberately endangered thousands of residents of Spelter. Last October, a jury in Harrison County, W.Va. found that DuPont, indeed, had deliberately subjected the Spelter residents to toxic poisons and ordered the company to pay nearly $382 million to monitor nearly 8,000 residents in the area for signs of cancer, to clean up the site, and pay punitive damages.

On June 24, 2008, DuPont appealed the verdict to the W.Va. Supreme Court.

Gov. Joe Manchin III, a Democrat in his first term who is up for re-election in November, filed a friend-of-the-court brief the same day, pressing the Court to review the $382 million judgment against the DuPont Company. The Governor said he was not taking sides, but acting in the interest of due process. If you believe that, I have a bridge I'd like to sell you.

Documents from the governor’s office show that Mr. Manchin consulted with DuPont before filing the brief, and DuPont officials say the governor even asked them to provide him with a draft brief.

It was the first time a West Virginia governor had taken such action in a case in which the state was not a party. Mr. Manchin’s actions rightfully angered plaintiffs, who argued that the executive branch was inappropriately pressuring the judicial branch.

The governor’s spokesman said that Mr. Manchin only wanted to ensure that cases involving punitive damages received a full airing from the Supreme Court and that he was not weighing in on behalf of DuPont.

But new documents reveal a more complicated picture.

The New York Times reports that on June 2, the governor met with the vice president of DuPont and one of the company’s lawyers to discuss the brief, according to records of the meetings obtained through the Freedom of Information Act.

The governor also spoke on the phone with DuPont’s chairman and chief executive on Nov. 20, 2007, less than a month after the verdict, according to the documents.

Shortly before the governor filed his brief, DuPont lawyers provided his office with two draft briefs that made many of the same arguments he later used in his brief.

The day Mr. Manchin filed the brief, his office also requested assistance by e-mail from DuPont with the procedural requirements for filing.

When questioned by the plaintiff’s lawyers about DuPont’s draft brief, the governor’s office said that some of the e-mail correspondence between the company and his office had been erased, according to documents from the governor’s office.

In an interview, however, Carte Goodwin, Mr. Manchin’s lawyer, said that as often happens, the draft brief from DuPont came to the governor’s office unsolicited. But a DuPont spokesman, Daniel A. Turner, said in an e-mail message that it was the governor who had asked DuPont to provide a draft brief. Somebody is lying!

The documents from the governor’s office also reveal overlap between Mr. Manchin’s staff and DuPont. Mr. Manchin’s executive assistant, Peggy Ong, is a former DuPont employee. While there, Ms. Ong was involved with the company’s handling of the Spelter case and its conducting community outreach regarding the contaminated site, according to company documents.

The revelations of Mr. Manchin’s involvement in the DuPont case come against a backdrop of larger concerns raised recently about the independence of the state’s legal system. In the last year, two Supreme Court justices have come under scrutiny for ties to company executives that had cases pending before the court.

Prof. Stephen Gillers, who teaches legal ethics at New York University School of Law, said it was unusual and inappropriate for the governor, instead of the attorney general, to get involved in such a case, and that after searching state court records, he could find no example of a similar intervention by a governor.

“One plaintiff, Carolyn Holbert of Erie, called the governor’s actions “a total betrayal.”

Ms. Holbert, 62, a retired switchboard operator whose back porch looks out onto the Spelter site and who grew up just miles from the plant, said that an aunt, an uncle and three of six siblings had died from cancer.

“The governor says he is not taking sides,” Ms. Holbert said. “But he is helping DuPont drag its feet, and people are dying while they wait for help.”

In The Appeal, a fictional chemical company illegally dumped chemicals into the ground for decades. The chemicals got into the water supply and rendered the county water not only undrinkable, but also cancer causing. In response to a $48 million verdict in one case, the company undertakes dirty tactics to compromise the Mississippi judiciary, all in an effort to buy a win on appeal. As they say, life imitates art. Gov. Manchin should recognize the separation of powers between the executive and judicial branches and stay out of the Spelter case. Such sleazy tactics as set forth in the Grisham book are even more dangerous in states like Mississippi and West Virginia where judges are elected. I believe it is a terrible idea to force judges to become politicians. This increases the potential for the judiciary to be corrupted by lobbyists and money.

Originally posted at InjuryBoard by Michael Phelan

Experts Not Permitted to Testify Plaintiff is Faking or Exaggerating Symptoms

Michael Phelan — Wed, 02 Dec 2009 11:21:33 GMT

A written opinion issued earlier this month from the United States District Court for the Eastern District of Virginia, Richmond Division slams shut the door on the defense practice of hiring a medical expert to accuse the plaintiff of malingering, symptom magnification, being motivated by secondary gain, having somatoform disorder or any of the other names used by defense doctors to imply that injured plaintiffs are faking or lying. In Kidd v. Wal-Mart Stores, Inc., et al., Civil Action No. 3:09CV264, Magistrate Judge M. Hannah Lauck ruled that even if a medical expert possesses sufficient psychological expertise to offer expert testimony as to whether the plaintiff evinces symtom magnification or somatiform disorder, the Court would not permit the experts to opine whether the plaintiff has such disorder because "[s]uch testimony far too easily invades the province of the jury or comments on the credibility of the Plaintiff."

One often sees in defense neuropsychological reports opinions along the lines that the plaintiff's complaints have a functional component, are motivated by secondary gain, represent symptom magnification or malingering, etc. I make it a practice to move to exclude such opinions as being the type of testimony the goes to the truthfulness or credibility of a witness and invades the province of the jury. See Pritchett v. Commonwealth, 263 Va. 182, 186-187, 557 S.E.2nd 205, 208 (2002). Virginia state trial courts have been receptive to this argument, and it is good to see the federal district court following suit.

Originally posted at InjuryBoard by Michael Phelan