Richmond Virginia Personal Injury Lawyer

Cellphones and Work Zones: A Dangerous Combination

Michael Phelan — Fri, 27 Apr 2012 16:54:24 GMT

Virginia, like many states with aging infrastructure, is facing a dangerous combination. There are more drivers on the roads each year. More of those drivers are distracted by the use of cellphones to talk, text, or email. And, more of the roads on which those distracted drivers are driving are under repair.

A survey of 409 police officers who patrol Northern Virginia’s roadways found that cellphone use was to blame in one in three work-zone accidents. They said sending or reading text messages was twice as likely to cause car accidents than any other driver error. The region's police officers also say that the number of work-zone accidents is way up due to drivers use of mobile phones to talk or text.

This week, AAA and a company hired to build high-occupancy toll lanes in Virginia presented results of a survey they conducted of Northern Virginia police officers. Nearly 80 percent of the police officers said that banning cellphone use while driving would dramatically reduce road accidents.

In an earlier report, AAA said that more than half of the 210,000 drivers who use the Capital Beltway each day are distracted by cellphones.

“Navigating the extensive work zones in Northern Virginia requires drivers’ full attention,” Virginia Secretary of Transportation Sean Connaughton said. “It is important for drivers to realize that distracted driving in a construction work zone poses an enormous threat to the safety of our workers and their fellow travelers.”

The National Highway Traffic Safety Administration reported that 5,474 people died and 448,000 were injured in 2009 in crashes in which distracted driving was involved.

Distracted driving becomes significantly more dangerous in work zones, where lane changes, lane closures, uneven pavement and narrow lanes require even greater driver concentration. This is not rocket science. We all know this to be true. The problem is that many of us believe that it is dagnerous for the other guy to drive distracted. We falsely believe that we can handle it. Well, none of us can operate a vehicle at highway speed while our eyes are not on the road. At 60 mph, the vehicle is traveling approximately 30 yards per second. If a driver takes six seconds to send or read a text at 60 mph, he or she has just traveled the length of two football fields without looking at the road.

Here are some startling facts and findings:

The National Safety Council reported that drivers using cellphones look but fail to see up to 50 percent of the information in their driving environment. A Virginia Tech Transportation Institute study of truck drivers found that they were 163 times more likely to have an accident or near accident if a driver is texting, e-mailing or accessing the Internet.

The New England Journal of Medicine reported that a person using a cellphone when driving is four times more likely to have a crash that will result in going to the hospital.

Some of the worst distracted driving crashes have not been caused by passenger vehicle drivers. Investigations of high-profile accidents by the NTSB found that:

●In 2004, a bus driver who was distracted while on his hands-free cellphone struck the underside of an arched stone bridge on the George Washington Parkway in Alexandria, Virginia. Eleven of the high school students on board were injured.

●In 2008, 25 people died when two trains collided in California. The commuter train engineer, who had a history of using his cellphone while on duty, ran a red signal while texting.

●In 2010, two people died when a tugboat towing a barge ran over an amphibious boat in the Delaware River. The tugboat mate was distracted by repeated use of a cellphone and laptop computer.

●In 2010, 11 people died in Kentucky when a tractor-trailer crossed the median and collided with a 15-passenger van. The truck driver lost control because he was distracted by his cellphone.

Originally posted at InjuryBoard by Michael Phelan

Why are Teens More Susceptible to Concussions?

Michael Phelan — Wed, 29 Feb 2012 09:54:37 GMT

It turns out that it is true that teenage behavior can sometimes be explained by underdeveloped frontal lobes. This also explains why teenagers are more vulnerable to concussions or mild traumatic brain injuries.

Research results published in Brain Injury by Université de Montréal neuropsychologist Dave Ellemberg reveal that adolescents are more sensitive to the effects of a sport-related concussion than adults or children. These kinds of injuries mostly affect their working memory – the brain function that enables us to process and store short-term information and that is essential for activities such as reading and mental calculation. “The frontal regions of the brain are more vulnerable to concussions. These areas oversee executive functions responsible for planning, organizing and managing information. During adolescence, these functions are developing rapidly which makes them more fragile to stress and trauma,” explained Dr. Ellemberg, who is a professor at the university’s Department of Kinesiology.

This study is the first of its kind to measure the impact of sport-related concussions on children. It is also the first to compare the consequences of the trauma on three different age groups-adolescents, adults, and children.

“For a long time, we believed that the brain of a child was more plastic and could therefore better recover from an accident or stress,” says Ellemberg. “In recent years, we’ve realized that quite to the contrary, a child’s brain is more vulnerable. Our research shows that children are as afflicted as adults by a concussion.”

This same logic applies when an infant is exposed to neuro-toxins such as lead-based paint. The damage to the developing brain may be significantly worse than damage to an already developed brain from the same exposure.

Originally posted at InjuryBoard by Michael Phelan

BMJ article reveals unsafe history of metal-on-metal hip implants

Michael Phelan — Wed, 29 Feb 2012 09:21:44 GMT

A recent British Medical Journal/BBC Newsnight investigtion published at BMJ2012,344:e1410doi: 10.1136/bmj.e1410 (2/28/12) and entitled, "How safe are metal-on-metal hip implants?", reveals the unsafe history of metal-on-metal hip implants and the inadequate response by European and U.S. regulatory bodies to the evidence of health risks posed by such implants. Cobalt-chromium implants are known to release metal ions that can seep into local tissue causing reactions that destroy muscle and bone and leave some patients with long-term disabilities. Id. at p. 1. This phenomenon was first described in detail as early as 1975. Id. Scientist now know that some metal-on-metal implants release metal ions on a much greater scale than previously thought. Id.

What are the genotoxic effects of cobalt-chromiummetal ion release into one's tissue and bloodstream? In 1990, the WHO listed hexavalent chromium as a carcinogen. The ion being released in metal joint implants is trivalent chromium. Nonetheless, the BMJ and Newsnight report that manufacturers of metal-on-metal implants were aware of the potential for genotoxicity, citing a July 2005 internal memo from DePuy that says: "In addition to inducing potential changes in immune function, there has been concern for some time that wear debris may be carinogenic." The DePuy memo also cites a study suggesting a threefold risk of lymphoma and leukaemia 10 years after joint replacement. Id.

Despite this concern, DePuy aggressively marketed its metal-on-metal hips, equipping its sales force with a 2006 paper written by one of DePuy's prosthesis designers, Thomas Schmalzreid, M.D. (who is currently a defendant in many DePuy ASR lawsuits), entitled, "Setting the record straight on metal hypersensitivity." Id. at 2. The BMJ article opines that the European and U.S. regulators failed to identify the design changes that made some of the metal implants, such as the DePuy ASR, more likely to release metal ions at a greater than expected rate. And the regulators failed to identify the consequences for patient safety. Id.

Here is an important table from the BNJ article:

How commercialism trumped safety

Why are patients still exposed to the harms of metal implant failures identified in 1975— implants that divided the orthopaedic community when they were reinvigorated in the 1990s?

The answer seems to be unfettered innovation coupled with a drive for commercial success unconcerned with patient safety.

The conventional total hip replacement consists of a metal head with a polyethylene cup. But these joints don’t last forever. Over time the plastic cup wears away against the hard metal head. Younger, more active people are especially likely to require early revision surgery to replace the worn out joint.32

Through the 1960s and ’70s, surgeons were looking at ways to preserve more bone. After a failed attempt in 1970 to develop the resurfacing technique with metal on polyethylene, attention turned to metal as a more durable option. In particular, a combination of cobalt and chromium—he same metals that had given rise to concerns when used in total hip implants in the 1970s.

Birmingham surgeon, Derek McMinn took to his garden shed to design a resurfacing prosthesis made of metal. If done correctly—arefully—he believed an implant could be made with metal surfaces that did not touch and surfaces that wore very little.

Once it hit the European market in 1997, the Birmingham Hip Resurfacing—cquired by Smith and Nephew—apidly gained popularity as it preserved more bone, was believed to last a lifetime, and virtually eliminated the risk of dislocation, allowing patients to get back to heavy jobs and playing sport.3

But the initial release of the BHR onto the market was tightly controlled. Mr McMinn, the designer, personally instructed selected surgeons and emphasised the need for good surgical technique and patient selection.

The positive results—lower wear, less risk of osteolysis, and less dislocation—soon piqued the interest of other manufacturers keen to be part of the metal revolution.17

But as the excitement over hip resurfacing grew through the early 2000s, surgeons continued to report the bodily spread of metal ions released through the wear of implants.33 The reinvigorated metal technology was controversial and the risks were too high for some.

As Ronan Treacy, a consultant trauma and orthopaedic surgeon at the Royal Orthopaedic Hospital in Birmingham, writes in Mr McMinn’s book about resurfacing,34 surgeons were branded as “maverick” and irresponsible for using metal on metal by both the “establishment” and industry. “But finally the issue grudgingly found its way on to the agendas of boardrooms around the world,” he said.

As competition grew the boundaries were pushed and the regulators were no match against the commercial pressure. Carefully crafted surgical innovations fell into the hands of the powerful multinationals and shareholder interests trumped patient safety.

The following table from the BMJ article speaks for itself:

Timeline: Metal-on-metal hips

1975: Study describeslocal tissue reactions caused by cobalt and chromium ions from metal-on-metal hips6

1988: Study shows human synoviocytes killed by cobalt in vitro (Rae T. Clin Orthop 1988;232:244–54)

1989: Metal-on-metal hip resurfacing designs start in Birmingham

1990: WHO International Agency for the Research on Cancer lists trivalent chromium as a potential carcinogen and cobalt ions as a probable carcinogen

1991: First metal-on-metal hip resurfacing device is implanted in Birmingham

1994: Study shows dissemination of cobalt and chromium ions into lymph, liver, and spleen5

1996: Patients with metal-on-metal hips found to be at increased risk of cancer compared with those with metal-on-plastic hips: relative risk of haematopoietic cancer 1.59 (95% confidence interval 0.8 to 2.8) and leukaemia 3.77 (0.9 to 17.6) (Visuri T, et al. Clin Orthop 1996;329 (suppl):S280–9)

1997: Birmingham Hip Resurfacing (BHR) implant comes onto the European market

1998: Particles of cobalt and chromium shown to be toxic to monocytes in culture (Haynes DR, et al. Clin Orthop 1998;352:223-30)

2000: NICE guidance on selection of prostheses for primary hip replacement and resurfacing sets a benchmark revision rate for conventional hip replacement of ≤10% at 10 years

2003: Derek McMinn and Ronan Treacy publish paper showing positive results with BHR. This kickstarts the trend for larger heads in total hip replacement

2004 McMinn, designer of the BHR, says, “Caution still needs to be exercised until longer term results are available”

2004 One of DePuy’s modified stems with a shortened trunnion is cleared by the FDA, which says the modified design “does not raise any new issues of safety or effectiveness”

2005: Internal DePuy memo reflects early concerns about health risks of wear debris from metal on metal hips. “In addition to inducing potential changes in immune function, there has been concern for some time that wear debris may be carcinogenic”

2006: MHRA Committee on Safety of Devices says there’s growing concern over the biological risks of metal wear debris

2006: The Department of Health’s Committee on Mutagenicity concludes that “some metal on metal (those using cobalt-chromium) hip replacements may be associated with increased DNA-changes, and increased genotoxicity in patients.” It says this “may present a potential risk of carcinogenicity in humans”

2007: Implantation of large diameter metal-on-metal hips starts to increase rapidly in the UK, and resurfacing peaks. Metal-on-metal hips account for 20% of market this year

2007: UK expert advisory group chooses not to contraindicate metal-on-metal hips in women of child bearing age—ven though metal ions had been detected in the umbilical cord and placental blood

2007: The MHRA’s Committee on Safety of Devices recommends that all patients sign a consent form setting out the risks associated with metal wear debris. But this recommendation is not widely communicated

2008: Study shows 20% of patients with DePuy’s Pinnacle hip system have metal ion levels over the upper limit accepted by occupational health experts

2009: Japanese surgeons raise concerns with the design of DePuy’s large diameter metal-on-metal system. They report seeing “generated metal debris between stem taper and head, and final necrosed tissue” and blame it on the poor connection between the two

2009: All joint replacement implants are re-classified as class III devices after the implementation of Directive 2005/50/EC

2010: In an internal email obtained by the BMJ, a senior figure in DePuy writes: “I feel the problem [with large diameter metal on metal] is emerging as more serious than first thought.”

2010: DePuy recalls its ASR hip prostheses. Some studies show a failure of the total hip replacement secondary to adverse reactions to metal debris of 50% at 6 years

2010: DePuy promotes Pinnacle—ncluding metal-on-metal—s “an alternative for the majority of patients”

2011: Tony Nargol and his team warn the MHRA of failures with the Pinnacle implants

2011: British Orthopaedic Association writes to surgeons to say that large diameter metal-on-metal total hip replacements should be “carefully considered and possibly avoided”

2011: A two year follow-up study in 144 patients shows an incremental increase in metal levels over the study period in a range of large head metal-on-metal implants made by companies including Zimmer, DePuy, and Smith and Nephew26

2011: FDA writes to about 20 manufacturers to say that it is requiring post-marketing studies in cases where an implant’s failure could have serious consequences. Companies would be expected to take blood samples from patients to measure metal ions.

2011: National Joint Register describes large diameter metal-on-metal and resurfacing prostheses in some people as a “cause for concern”

2011 Trial comparing large diameter Birmingham hip replacement with conventional hip is terminated after 2 years. Metal ion levels were raised above the MHRA advised safety level (7 μg/L) in 20% of the metal-on-metal group and in one patient in metal-on-polyethylene group (who had a metal-on-metal implant on the contralateral side)27

2012: At the annual American Academy of Orthopedic Surgeons conference manufacturers promote metal-on-metal products to the 40 000 attendees.

Although it is currently in vogue in this county for politicians to espouse the elimination of all government regulations, this case screams out for better, more proactive regulation. Proactive regulation may have prevented hundreds of thousands of patients from their current health crisis. Indeed, British regulators said yesterday that patients who received certain all-metal artificial hips, such as the type that was widely used in the U.S., should undergo annual examinations for as long as they have the device to make sure they are not suffering metal debris-induced tissue damage or other problems.

Originally posted at InjuryBoard by Michael Phelan

Facts About Fosamax Femur Fractures

Michael Phelan — Fri, 24 Feb 2012 11:11:07 GMT

Fosamax, manufactured by Merk & Co., is in a class of drugs called bisphosphonates. Fosamax is a prescription medicine for the treatment or prevention of osteoporosis (thinning of bone) in women after menopause. It is designed to reduce the chance of having a hip or spinal fracture, to increase bone mass in people with osteoporosis, and to treat other bone diseases such as Paget's disease..

A survey of the published medical literature on Fosamax femur fractures indicates that a new pattern of fractures is now being noted in patients possibly as a result of being on prolonged Fosamax or other bisphosphonate therapy. The new pattern of fractures that doctors are seeing is referred to as atypical femoral fracture. These fractures are subtrochanteric or femoral shaft fractures and are called "atypical" because they commonly result from very low-energy impacts,such as the common act of stepping down stairs. The femur is one of the strongest bones in the body and should not fracture as a result of a low impact stress.

A major case control study published in the Journal of the American Medical Association (JAMA) entitled, "Bisphosphonate Use and the Risk of Subtrochanteric or Femoral Shaft Fractures in Older Women," concluded that older women on bisphosphonate therapy for osteoporosis for 5 years or longer had a 274% higher chance of subtrochanteric or femoral shaft fracture. Thus, the term Fosamax fracture is unecessarily limiting. The correct term probably should be bisphosphonate femur fracture.

Other bisphosponates include and are marketed as: Actonel, Aredia, Boniva, Didronel, Reclast, Skelid, and Zometa. Aredia and Zometa are typically used in conjuncton with cancer treatement and are much more potent than Fosamax and other osteoporosis drugs.

In October 2010, the FDA issued a warning that Fosamax and other bisphosphonates put patients at risk for atypical thigh bone (femur) fractures. FDA Fosamax warnings and information can be accessed here.

Many consumers fear that in order to pursue a legal claim for a Fosamax fracture or bisphosphonate fracture they must join a class action. Consumers commonly believe that class actions rarely result in fair compensation for the injured consumer. The fact is that most of the Fosamax fracture cases are not class actions. Stand-alone cases for individual consumers are being filed in state and federal courts. State court cases may only be filed in states in which there is jurisdiction over one or more of the named defendants, otherwise they will likely be removed by Merk's lawyers to federal court. Cases filed in or removed to federal court have all been consolidated for purposes of discovery. A panel of federal judges comprise what is called the Judicial Panel on Multidistrict Litigation (JPML). On May 23, 2011, the JPML ordered that all lawsuits filed or removed to federal court that allege that Fosamax caused an atypical femur fractur be consolidated for purposes of discovery and centralized in the U.S. District Court for the District of New Jersey and assigned to the Judge Gerrett E. Brown, Jr. This consolidated federal multidistrict litigation is called: In re: Fosamax (Alendronate Sodium) Products Liability Litigation(No. 11) ("MDL No. 2243"). On February 2, 2012, the Fosamax MDL was expanded to include federal cases in which the patient took other bisphosphonates and also took Fosamax.

Originally posted at InjuryBoard by Michael Phelan

DePuy Hip Implant Claims: Know Your Rights re: Paying Back Health Insurers

Michael Phelan — Wed, 28 Dec 2011 11:17:42 GMT

Medical and legal experts estimate that the thousands of failed metal-on-metal artificial hip implants may cost taxpayers, insurers, employers and others billions of dollars in coming years, contributing to the soaring cost of health care. The financial fallout is expected to be unusually large and complex because the tragedy involves a class of products, not a single device or just one company. The metal-on-metal hip implant debacle extends beyond just DePuy ASR hip implants .

The metal-on-metal hips involve a ball and joint made of metal. They are failing at high rates within a few years instead of lasting 15 years or more, as advertised. The friction from metal parts against each other is generating debris that is damaging tissue and, in some cases, crippling patients.

The high failure rates have resulted in thousands of lawsuits. Recently, lawsuits against makers of all-metal replacement hips passed the 5,000 mark. Approximately 3,500 of those lawsuits involve the troubled DePuy ASR total hip replacement device. DePuy is a division of Johnson & Johnson. The hospital and other medical expenses for a patient who requires premature hip explant surgery can soar into the hundreds of thousands of dollars. Health insurers are alerting patients that they plan to recover their expenses from any settlement money that patients receive.

Thus, it is important that attorneys representing hip implant claimants understand the applicable subrogation laws. Some states have anti-subrogation statutes that cut off a health insurer's claim that it is entitled to be paid back from a personal injury recovery. For example, Virginia Code §38.2-3405 provides, in part, as follwos:

A. No insurance contract providing hospital, medical, surgical and similar or related benefits, and no subscription contract or health services plan delivered or issued for delivery or providing for payment of benefits to or on behalf of persons residing in or employed in this Commonwealth shall contain any provision providing for subrogation of any person's right to recovery for personal injuries from a third person.

B. No such contract, subscription contract or health services plan shall contain any provision requiring the beneficiary of any such contract or plan to sign any agreement to pay back to any company issuing such a contract or creating a health services plan any benefits paid pursuant to the terms of such contract or plan from the proceeds of a recovery by such a beneficiary from any other source; provided, that this provision shall not prohibit an exclusion of benefits paid or payable under workers' compensation laws or federal or state programs, nor shall this provision prohibit coordination of benefits provisions when there are two or more such accident and sickness insurance contracts or plans providing for the payment of the same benefits. Coordination of benefits provisions may not operate to reduce benefits because of any benefits paid, payable, or provided by any liability insurance contract or any benefits paid, payable, or provided by any medical expense or medical payments insurance provided in conjunction with liability coverage.

This state anti-subrogation law is trumped by federal law, therefore, a qualifed ERISA-based health insurance plan would be entitled to enforce its contractual subrogation provisions notwithstanding any state anti-subrogation statute. This is complicated area of law. In past mass tort settlements, including the settlement of mutliple Sulzer Hip Implant claims, a lien resolution firm was hired to negotiate globally with all lien holders, including private health insurers and Medicare. These resolution companies are able to strike better and faster deals with lienholders because they are able to offer the lienholders resolution of a high volume of liens. Claimants don't often hear about this aspect of the case, and can become rightfully frustrated when the lien negotiations are slowing down the disbursement of settlement funds. Claimants need to know that this is a likely and necessary phase of the process. Claimants usually do not get paid until the liens are resolved, and this process can last many months beyond the settlement of the underlying litigation.

Originally posted at InjuryBoard by Michael Phelan

Kudos to GM for Volt Buy Back Policy

Michael Phelan — Fri, 02 Dec 2011 10:00:06 GMT

According to a report in the New York Times,General Motors said Thursday that it would buy back Chevrolet Volts if owners were concerned about fire risks. It also promised to comply with any changes to its battery pack recommended by federal regulators. In an interview with The Associated Press, G.M.’s chief executive, Daniel F. Akerson, defended the safety of the plug-in hybrid vehicle but said the automaker would purchase Volts from unsatisfied customers.

Such a policy is rare for auto makers, which typically have to be forced by federal regulators to institute recalls when safety concerns caused by alleged product defects arise. Last year, however, Ford broke the trend by offering to buy back older Windstar van models with alleged rear axle problems.

The safety issue concerning the Volt is the potential for post-crash fires caused by the car's 400-pound lithium-ion battery pack. The National Highway Transportation Safety Administration (NHTSA) opened a product defect investigation in November. NHTSA announce that initial crash simulations resulted in one fire occurring three weeks after a battery was damaged in a simulated crash; one fire occurring one week post-simulated crash; and one battery pack smoking and sparking immediately after such a crash.

GM is not only offering to buy back Volts from worried customers, but is also offering free loaner cars to customers who wish to wait on the final results of NHTSA's investigation. Moreover, GM is pledging to make any changes to the battery pack recommended by NHTSA.

Consumer saftey advocates should applaud GM for getting out in front of this issue before anyone burned up in a car fire. People old enough to remember the Ford Pinto will recall that this proactive approach was not always favored by the auto makers.

Originally posted at InjuryBoard by Michael Phelan

Takeda Pharma Faces Slew of Suits Over Actos Bladder Cancer Claims

Michael Phelan — Fri, 02 Dec 2011 09:31:14 GMT

Asia's biggest drugmaker, Takeda Pharmaceutical Co., may face as many as 10,000 lawsuits in U.S. courts over allegations that its Actos diabetes drug causes bladder cancer. U.S. regulators found in June that an analysis of a company-sponsored epidemiological study showed some users of Actos faced an increased risk of developing potentially fatal bladder cancer.

Actos is the world’s best-selling diabetes medication. Japan-based Takeda this year pulled Actos off the market in Germany and France after it was linked to an increased cancer risk. Actos is also Takeda's top-selling drug with sales of 387.9 billion yen ($4.8 billion) in the last fiscal year, 27 percent of the company’s revenue.

On December 1st, the Judicial Panel on Multi-District Litigation (MDL) convened a hearing in Savannah, Georgia to decide whether all federal court Actos bladder cancer suits should be consolidated before one federal court judge for purposes of pre-trial proceedings. Attorneys at the hearing argued in favor of U.S. District Judges James Zagel in Chicago, Rebecca Doherty in Lafayette, La., Daniel Polster in Cleveland, and a federal district court in Birmingham. The theory behind consolidation is that it is more efficient because it streamlines the discovery process, including voluminous document exchanges, by avoiding duplicity and inconsistent rulings. The reality is that state court pharmaceutical litigation often progresses to trial faster than the MDL process.

Originally posted at InjuryBoard by Michael Phelan

Perry Admin Apparently For Environmental Regulations Before It Was Against Them

Michael Phelan — Fri, 04 Nov 2011 10:26:15 GMT

Texas Attorney General, Greg Abbott, sued BP PLC following a 2005 explosion at the oil company's Gulf Coast refinery. The lawsuit alleged that BP violated Texas' state clean air act. Mr. Abbott just announced that BP has agreed to settle the case for $50 million, an sum Abbott called "a record-setter for the state's clean air act." Abbott was also quoted by the AP as saying:

“There are rules that must be followed, and if you violate those rules there will be consequences,” Abbott said. “They exposed Houstonians ... to poor air quality and now they’re paying the price for it.”

The settlement with Texas also resolves violations from a high-profile 41-day benzene release in April 2010 that prompted a class-action suit by Texas City residents and an investigation by the U.S. Environmental Protection Agency. Critics in Texas say the six year litigation took too long to resolve BP's air pollution violations, and that the settlement money should be used to go toward environmental protection and air monitoring for cancer-causing benzene in the effected communities.

Notwithstanding this criticism, Abbott deserves credit for seeing this litigation through. The irony is, that while he was working to wrap up this settlement, Texas' governor, Rick Perry, was telling everyone who would listen that dismantling the EPA and deregulating polluters were keys to creating jobs in Texas and the rest of the country. Is Mr. Perry on the side of "fer" the $50 million settlement or on the side of against the settlement after he was fer it, after he was standing up for it, before he was against it?

Originally posted at InjuryBoard by Michael Phelan

Law Blogs: Protected Political Speech or Commercial Speech?

Michael Phelan — Mon, 17 Oct 2011 11:31:23 GMT

Here in Richmond, Virginia, a local lawyer is challenging the Virginia State Bar's authority to regulate his blog, claiming that such regulation violates his First Amendment free-speech rights. Like many attorneys, Horace Hunter of Hunter & Lipton, PC, has a web site that links to a blog site.

Mr. Hunter takes the position that his law blog consists of news and commentary, not commercial speech. Last year, the Virginia State Bar told Mr. Hunter to place an advertising disclaimer on his blog, contending that Hunter's website, from which one can link to the blog, is part of an adverstisement because a purpose of the website is to market the firm. Hunter is a small-firm, criminal defense lawyer. One doubts whether the bar would have taken such a position with a 500 lawyer firm. Hunter courageously refused to comply with the bar's request, and the bar charged him with misconduct. There is a bar hearing on this case tomorrow.

One of the Commonwealth's leading constitutional law experts, Rodney Smolla, wrote a legal brief on Hunter's behalf in which he had this to say:

The Commonwealth of Virginia would be absolutely prohibited from punishing any Virginia citizen or company for posting any of the information contained in Horace Hunter's blogs on the Internet, period. The blog is not commercial speech but political speech that is protected by the First Amendment.

The blog "is not magically transformed into commercial speech merely because Horace Hunter happens to be a member of a highly regulated profession that draws clients for pay from the general public." "Virginia is attempting … to force Horace Hunter to profess that his blogs are not an exercise of his First Amendment right to express his views on matters of public concern, but instead are commercial advertisements soliciting legal business."

"Horace Hunter's motivation is surely mixed," Smolla conceded. "A byproduct of the visibility such commentary brings may be to attract more legal business."

But he added, "If some underlying motive for pecuniary gain alone were all it took to transform speech from political to commercial, then large swatches of speech in the American marketplace of ideas would be disqualified from full First Amendment protection."

Smolla noted that the Richmond-based law firm of Hunton & Williams conducted a seminar on a successful case and its ramifications to an audience that might have included current or prospective clients. Smolla contends that if it is the position of the state bar that it could punish Hunton & Williams, then there would be no stopping point short of sweeping in virtually all speech by lawyers.

"By extension this logic would have empowered the Virginia State Bar, had it then been in existence, to impose on the great Virginia lawyer James Madison disclaimer requirements for his circulation of his essays in 'The Federalist Papers,' which, by the way, a modern day Madison practicing law in Virginia might well circulate in the form of an Internet blog," he wrote.

Interesting food for thought. There is no doubt that the bar has the authority to regulate certain speech. For example, in Virginia, a lawyer may not make false or misleading public statements or create an unjustified expectation about the results a lawyer can achieve. The question is whether Mr. Hunter is making false or misleading statements in the form of commercial speech or simply reporting on legal news. I've read several of Mr. Hunter's blogs, on his site, "This Week in Richmond Criminal Defense." Here's Hunter's blog regarding whether "This Week in Richmohnd" requires an advertising disclaimer. Here are archived Hunter blogs. You be the judge. I think Dean Smolla hit the nail on the head. Hunter's motives are clearly mixed. I'm sure he hopes his blog generates business. Just like I'm sure that Hunton & Williams hoped to generate business by sponsoring a seminar for, inter alia, prospective clients, in which the topic was a case H & W successfully handled. The bar should not regulate either form of speech.

Originally posted at InjuryBoard by Michael Phelan

British Joint Registry: all metal hip replacements more likely to fail

Michael Phelan — Mon, 19 Sep 2011 09:55:31 GMT

According to a new report from the National Joint Registry of England and Wales, people who get metal hip replacements are more likely to need another surgery within seven years to replace the device than people who get traditional plastic hip implants. The data from the registry shows that nearly "14 percent of patients who got an all-metal replacement needed the joint removed or replaced after seven years. That compares with just three percent of patients who got a joint made of plastic and needed a replacement within the same time."

A previous report based on data from this registry on the failure rate of DePuy ASR metal-on-metal hip implants made by a division of Johnson & Johnson led to its recall by the US Food and Drug Administration. Among patients who received the DePuy metal hip, almost 30 percent needed a new one. Since that recall, usage of all-metal hip replacements has decreased. In 2006, metal hip replacements were used in about 15 percent of procedures; that's now dropped to about 5 percent.

Traditional hip replacements usually last more than 10 years, but British officials noted some of the metal hip replacements were failing within a few years. TThis is ironic, since the manufacturers, like DePuy, marketed their metal implants as being more durable and longer lasting. The average age of patients getting hip replacements was 67, many of whom purchased a metal implant believing it would last for the rest of their life. Instead, they are facing traumatic revision surgery.

Originally posted at InjuryBoard by Michael Phelan