South Florida Personal Injury Lawyers

The U.S. Food and Drug Administration announced Monday that drug company Genentech Inc. will be adding stronger label warnings on their blockbuster cancer drug Avastin, which will warn about the increased risk of a rare brain condition in patients using the drug.

The condition called posterior leukoencephalopathy syndrome (RPLS) can cause numerous complications such as blindness and other serious impairments.

The current drug label includes information about recent reports of several patients using Avastin who developed septum perforations—holes within the nose. The new label will alert doctors and patients that there have been confirmed reports of RPLS in patients taking the drug in clinical trials.

Genentech will continue to conduct future studies testing various side effects. “For future clinical studies of Avastin, these two things we we’ll look for,” said company spokeswoman Kristina Becker, about the brain condition and nose condition

Two years after the painkiller Vioxx was withdrawn from the market, the lawsuits still make front-page news.

Trial lawyers drool over huge damages awarded to heart-attack victims or their families. Merck & Co. Inc. crows whenever a jury decides that its drug didn’t hurt anyone. And investors hang on every verdict as they try to gauge how much money the more than 15,000 personal-injury lawsuits will cost the drug maker.

Lurking behind the headlines is a different type of lawsuit that has potentially huge ramifications for the company. The outcome may be worth billions of dollars, but because the details turn on the dry facts of health insurance, the lawsuit has taken a back seat to the sensational stories about ruined lives.

“The case may not appear as sexy as the personal-injury cases,” said Howard Erichson, a Seton Hall University Law School professor who specializes in complex litigation. “But there is a lot at stake.”

Among insiders, the lawsuit has a simple nickname: “the engineers’ case.” That’s because it was filed by the International Union of Operating Engineers Local 68, which represents about 6,000 building engineers, boiler operators, maintenance mechanics, plumbers, electricians and carpenters throughout New Jersey.

Like other unions, Local 68 runs a health care plan for its members and for several years paid for Vioxx prescriptions worth millions of dollars annually. A precise figure was not available, but the union wants its money back. A trial is scheduled for early next year. In response to an appeal from Merck, the New Jersey Supreme Court has agreed to review the case.

The union’s argument in many ways resembles the accusations in lawsuits filed by heart-attack victims: that Merck concealed serious side-effect issues from regulators and the public and improperly marketed the medicine. Unlike with the personal-injury lawsuits, the union does not have to prove that Vioxx caused a heart attack. The lawsuit claims that Merck violated New Jersey’s Consumer Fraud Act.

Local 68 simply maintains that it would not have paid for Vioxx if the heart problems were properly investigated and disclosed.

“We generally had thousands of Vioxx prescriptions each month,” said Dennis Giblin, Local 68’s president. “And they cost us a lot.”

Local 68 isn’t the only organization that shelled out $3 for each pill. Various health insurers and other third-party payers also say they paid a lot for a harmful drug. So last year, Superior Court Judge Carol Higbee, who oversees thousands of personal-injury cases in state court, certified the case as a nationwide class-action suit.

Her decision meant private insurers from across the country could join Local 68’s lawsuit and seek reimbursement from Merck. Overall, health plans paid a few billion dollars for Vioxx, said David Buchanan, one of the union’s attorneys. And under New Jersey law, Merck may have to pay triple the damages awarded at trial.

Some Wall Street analysts estimate that Merck’s total Vioxx liability could reach as much as $50 billion. Vioxx litigation also includes a shareholder lawsuit filed in federal court in Trenton, N.J.

Merck reiterates the defense used in the personal-injury cases: that Vioxx was developed and tested properly, that nothing about heart problems was hidden from the Food and Drug Administration and that the medicine was properly promoted. Merck also says Higbee was incorrect to grant class-action status to the engineers’ case.

“There were some fundamental flaws in the order,” said Ted Mayer, an attorney who represents Merck. “What you’re really talking about is a group of HMOs and insurers, all of which purchased Vioxx under different circumstances and used different decision-making processes to evaluate the medicine. And they’re governed by different state laws.”

Mayer is referring to clinical studies reviewed by health-plan committees, which attempt to balance a drug’s safety and effectiveness against its cost. Those evaluations, which can differ among health plans, are used to determine whether coverage will be provided and, if so, how much reimbursement to offer.

Merck also objects to the notion that health plans based in other states should press their case using New Jersey law instead of filing individual actions in their home states. From Merck’s point of view, doing so could mitigate the financial impact of the engineers’ case and reduce its exposure in what currently amounts to an all-or-nothing lawsuit.

The state Supreme Court has not scheduled hearings, although lawyers for both sides have been filing motions since the court agreed two months ago to review the case.

For now, Merck continues to face a trial in Higbee’s Atlantic City courtroom in March.

Now that the criminal case stemming from The Station nightclub fire in Rhode Island is ending, the families of some of the 100 people killed in the blaze are looking to a massive civil case for accountability.

The federal lawsuit, filed by nearly 300 people who were injured or lost loved ones in the fire, names dozens of defendants, including everyone from the rock band Great White, whose pyrotechnic display sparked the fire, to a salesman for the company that sold flammable polyurethane foam used as soundproofing.

James Gahan, whose 21-year-old son, Jimmy, died in the fire, said he is hoping the civil case will assign responsibility to everyone who contributed to the tragedy.

“If the criminal system is not going to follow through and make them accountable, the only thing we have left is the civil system,” Gahan said.

The fire at the West Warwick, R.I., nightclub was sparked by pyrotechnics that ignited the foam during a concert by Great White on Feb. 20, 2003. It was the fourth-deadliest nightclub fire in U.S history.

The lawsuit alleges that carelessness and negligence by the defendants was to blame for the 100 deaths and more than 200 injuries. Eight of those killed lived or worked in Connecticut.

Many family members of those killed in the fire are angry about a plea deal announced last week for nightclub owners Jeffrey and Michael Derderian. In exchange for no contest pleas to involuntary manslaughter charges, Michael Derderian will receive four years in prison, while Jeffrey Derderian will avoid prison altogether. The Derderians are expected to enter their pleas Friday.

Former Great White tour manager Daniel Biechele, the only other person charged criminally, was sentenced to four years in prison in May after pleading guilty to involuntary manslaughter.

Chris Fontaine, whose 22-year-old son, Mark, was killed in the fire, said she is hoping the civil case helps give families a better understanding of the events leading up to the fire, particularly why building and fire inspectors in West Warwick allowed the club to remain open after multiple citations for various hazards.

“We’re looking for the answers that we’ve been deprived of because of not having a (criminal) trial,” said Fontaine, whose daughter, Melanie, survived the fire with second- and third-degree burns.

“We want to hear all the evidence. We want to hear about the inspections. We just want information,” she said. “It’s about holding people accountable and getting the answers.”

The attorney who represents the families of eight people who died and 28 people who were injured, said that once the Derderians enter their pleas and are sentenced, they can be compelled to answer questions in the civil case because they will no longer face criminal liability.

“No longer can Michael or Jeffrey Derderian … refuse to answer interrogatories and depositions that we may set up,” the attorney said. “That was a very big obstacle for us.”

The Derderians are both still defendants in the civil case, even though they are shielded from paying damages above their insurance coverage after filing for bankruptcy protection.

The end of the criminal case could also be a boon for civil attorneys because prosecutors have promised to share evidence once the criminal case is over.

A new law passed by the Rhode Island General Assembly in June could encourage some defendants to offer out-of-court settlements before trial.

Under the old law, a jury’s total damages award would be reduced by either the amount of earlier out-of-court settlements by defendants or the proportion of liability that a jury assigned to the defendants who settled, whichever is greater.

Under the new law — which affects only cases in which there are at least 25 deaths — the jury’s award would be reduced on a dollar-for-dollar basis for out-of-court settlements. The degree of liability found by the jury would not be a factor in reducing the award.

“This will make it easier to settle with defendants who want to settle,” said Steven Minicucci, an attorney who represents 17 families who lost relatives or were injured.

Minicucci said many of the injured victims have continuing medical expenses and would benefit from out-of-court settlements rather than waiting for an eventual jury award, which could take years.

“This will hopefully speed up the process and get us to a point where there will be a mechanism to deliver some of the resources into the hands of victims sooner rather than later,” he said.

Michael Cassidy, an associate professor at Boston College Law School, said the jury in the case would likely feel enormous pressure to award large monetary damages. That pressure could be magnified, he said, because it will be difficult to find jurors who haven’t heard about the anger many victims feel about what they see as lenient punishment in the criminal case.

“I would find it hard to believe that the jury wouldn’t take that into account, at least subconsciously,” Cassidy said.

“The family reaction to this plea bargain (for the Derderians) has been so great and so anguished in some respects I would find it hard to believe that the jury wouldn’t worry that a modest civil verdict might have the same effect,” he said.

A Queens boy severely injured in a deadly crash that led to changes in the state’s drunk driving laws has settled his lawsuit against the driver.

Angel Reyes confirms the two and a half million dollar settlement. He says Angel – who is now 14 – is doing as well as can be expected, but he will have a shunt in his brain for the rest of his life.

Reyes was severely injured in October of 2004 when he and 11-year-old Vasean Alleyne were hit by a car driven by a drunk driver in Kew Gardens Hills.

Vasean died as a result of his injuries, but because there were no aggravating factors, like speeding or running a red light, the driver could only be charged with a misdemeanor.
The passage of Vasean’s law changed that.

His family also reached a settlement, but the deal is confidential.

On Oct. 22, 2003, plaintiff’s decedent Quoc Nguyen, 50, a mechanical engineer, left his workplace, got into his 1987 Jaguar XJ6 and started the car. He then got out of the car with the engine running. The car began to move in reverse, as either Nguyen had put it in reverse or, as plaintiffs alleged, it had shifted gears spontaneously. Nguyen tried to run after it, but the moving vehicle knocked him down. He was run over several times and was killed.The decedent’s purported wife, Christie Nguyen; his minor twin daughters from a prior marriage; and Nancy Recinos, Christie Nguyen’s daughter from a prior marriage, sued Ford Motor Co., Jaguar Cars Ltd., Bolsa Transmission, which had provided an oil change, and Maureen Kurdi, the car’s prior owner who had sold it to Nguyen.Against Ford and Jaguar, the plaintiffs claimed design and manufacturing defects and failure to warn, claiming that the Jaguar XJ6 had a defectively designed transmission, outer manual lever and cable shift system, making it vulnerable to mispositioning of the gear shift mechanism and unintended, spontaneous shifting from park into reverse, resulting in movement of the vehicle without driver action.

Against Bolsa, the plaintiffs argued that its employees were negligent because when they changed the oil in the car, they should have discovered the defective condition of the transmission. Bolsa settled with the plaintiffs prior to trial for $25,000.

Alleging negligence against Kurdi as well, the plaintiffs argued that Kurdi was aware of defects in the vehicle when she sold it to Nguyen. The case against Kurdi was dismissed in exchange for a waiver of costs prior to trial.

Ford argued that it was not liable for any defects, as it had not purchased Jaguar until 1990, a few years after this vehicle was designed.

Jaguar, denying that the transmission or its controls had any defects, asserted that the vehicles in its Jaguar XJ series had never been the subject of any other lawsuits, consumer complaints or technical services bulletins regarding the transmission or its control mechanism.

In addition, Ford and Jaguar argued that the decedent, who was the fourth owner of the vehicle, had likely worked on the vehicle himself. They claimed that the transmission had been removed and improperly reinstalled, without the linkage being appropriately readjusted. At trial, the defendants showed a videotape of the underside of the transmission, which they argued showed that the bolts were inserted the wrong way, parts were missing and critical parts were not reinstalled.

Jaguar moved to dismiss the claims of Christie Nguyen on the ground that she was not a legal heir of the decedent, as her purported marriage to him was not valid. A separate two-week bench trial was held on the issue of the validity of the marriage. Nguyen alleged that they were married in a Buddhist ceremony in Australia. However, they failed to file a marrigage license in Australia. Nguyen further alleged that the couple later renewed their vows in a ceremony before a Buddhist nun in California. No marriage certificat was file din California, however, and the Buddhist nun in question testified that she had not married the couple and was in fact not authorized to perform marriages. She also testified that she could not read or write English, and denied having written a statement purported by Nguyen to be the nun’s statement that she had performed the marriage.

Judge Brenner found that Christie Nguyen was not the decedent’s spouse, nor was she his putative spouse as she could not have had a good faith belief that the two were legally married, as she had been married previously and fulfilled all legal requirements in connection with her prior marriage. The claims of Christie Nguyen and her daughter Nancy Recinos in the underlying case were dismissed.

Plaintiffs alleged that the decedent was making about $180,000 per year as a mechanical engineer and would have continued to support his twin daughters through their 23rd birthdays, including paying for their college educations. Plaintiffs’ economist Barbara Luna calculated that each of the twins was entitled to recover a total of approximately $150,000 for loss of support. Counsel for the twins also asked the jury to award $2 million to each girl in damages for loss of society, comfort and care.

The jury returned a verdict in favor of Ford and Jaguar, finding no design or manufacturing defect.

The operator of a bus that exploded and killed 23 nursing home residents during the Hurricane Rita evacuation poorly maintained his vehicles and had drivers work excessively long shifts and lie about them, a prosecutor said in his opening statement Tuesday.

The attorney for James H. Maples, 67, president and director of Global Limo Inc., who along with his company is accused of conspiring to falsify driver time records and failing to inspect buses to ensure their safety, said the government has no evidence to prove its claims.

Assistant U.S. Attorney John Kinchen told the jury that Maples only maintained buses to “keep the wheels rolling and make money.”

He said the buses had “compromised steering, bad brakes, major things, but (they) still went out on the road.”

Thirty-seven nursing home residents were on one of Maples’ buses evacuating Houston ahead of Hurricane Rita when it caught fire Sept. 23, 2005, on a freeway near Dallas. Many were disabled and unable to escape.

The accident is believed to have been caused by an overheated bearing in the rear wheel well, probably the result of poor maintenance. The tire ignited and the fire engulfed the bus, then probably caused oxygen canisters to explode, investigators said.

The witness list includes several safety inspectors and bus drivers, including Juan Robles, who was driving the bus that exploded. Robles, an illegal immigrant from Mexico, was cleared of charges in exchange for his cooperation. He was expected to testify on Wednesday.

Kinchen said drivers were directed to falsify logs and stay on duty up to 30 hours without adequate rest.

“We couldn’t stop to rest,” Francisco Sanchez, a bus driver for the company, testified through an interpreter. “We had to follow the rules and get to our destination on time.”

Sanchez said he felt he would lose his job if he did not fill out his time sheet as “off duty,” but U.S. District Judge Ricardo Hinojosa struck the comment because Sanchez’s fears were based on conversations with other drivers and was speculative.

Maples’ attorney, Charles Banker, countered that investigators took a “shoot first, we’ll pick up the pieces later” approach.

Banker said drivers were “willing to say what the federal government wants them to say” to avoid being charged themselves, and suggested the drivers were simply confused by new safety laws or just made mistakes.

“They were confused. They didn’t do the logs right. And we’re here to prosecute Mr. Maples?”

He said Maples spent so much maintaining his small fleet of buses he was sometimes late paying drivers and other employees.

The judge ruled any evidence not directly related to the charges in the indictment cannot be presented without lawyers proving to him that the evidence is relevant.

The most serious of the charges in the three-count indictment against Maples is the conspiracy charge, which carries up to five years in prison and a $250,000 fine. If the company is convicted on that charge, it could be fined $500,000.

The conspiracy charge alleges that drivers operated in pairs, with one driving and the other resting in the passenger seat. There was no sleeper berth for the resting driver as required by law and indicated in driver logs.

The other charges allege that Maples and his company knowingly and willingly failed to inspect and maintain the buses.

Maples, a former NFL player, has spent the last year free on $75,000 bond.

Global Limo was shut down two weeks after the accident. In May, victims reached an $11 million settlement with Global and BusBank, the travel broker that hired the bus.

Since the wreck, the U.S. Department of Transportation has issued new guidelines for carrying medical oxygen, recommending that tanks be secured in an upright position and limited to one canister per patient in the passenger compartment.

A trucking company worker accidentally damaged a pressurized tank of sulfur dioxide, releasing a cloud of the noxious gas and sickening dozens of people.

Fifty-two people exposed to the chemical Tuesday were decontaminated and taken to hospitals. Several of them, including a firefighter, reported trouble breathing, but none of the injuries appeared to be serious, said city Fire Director Onofrio Vitullo.

The mid-afternoon accident happened as a worker attempted to dismantle a pressurized tank at Full Circle Carriers, a trucking company. The worker snapped the neck off the tank, releasing the gas cloud, officials said.

Witnesses said people began vomiting after breathing the gas, a poisonous industrial chemical that smells like a match that has just been struck.

Deputy Fire Chief Lathey Wirkus arrived at the scene and began to feel his lungs burning.

“I started screaming at all these people to run down the street,” Wirkus said. “They were hacking, coughing, snot coming out of their noses.”

Wirkus saw a dog nearby on its side with its tongue panting.

“I thought to myself, `If this dog is in this condition, imagine what it’s going to do to all of us,’” said Wirkus, who received oxygen at a hospital.

Sulfur dioxide is chiefly used in the preparation of sulfuric acid and other industrial chemicals, but it can also be used as a disinfectant, a refrigerant and a food preservative.

A hazardous material crew was brought in to seal the tank, Vitullo said. Police closed roads leading into the area, four miles (6.5 kilometers) south of Newark.

Eddie Rodriguez, 52, a truck driver from Cliffside Park, was having a shipping container loaded onto his truck when he suddenly smelled a strong odor, and then he could not breathe.

“I looked in my mirror and the guy behind me got out of his truck and started throwing up and gasping for air. All that time, I couldn’t breathe either,” Rodriguez said. “Everywhere around me, like 50 guys were feeling the same way.”

Rescue workers took Rodriguez to a decontamination tent, stripped off his clothes, then washed him down with soap and water before taking him to a hospital.

Hasbro Inc., the second largest toy manufacturer in the U.S., issued a recall on parts of a play workbench set after two young children choked on the oversized plastic nails, the company announced last week.

According to Al Verrecchia, the chief executive at Hasbro, the toy parts subjected to the recall are two plastic nails that are included in the Playskool Team Talkin’ Tool Bench. More than 255,000 workbench sets have been sold in the last year.

While the toy nails, which were three inches long and more than an inch wide, met federal safety standards, Hasbro issued the voluntary recall after they were named in a civil lawsuit filed by the parents of one of the boys who suffocated on the nails.

In February, the toy maker learned of the death of a 19-month-old child, who allegedly choked on one of the plastic nails. Last week, they discovered the toy part was blamed for another death that prompted a product liability lawsuit filed against the company.

“As soon as we heard that, we made the decision to get the product back and find out what’s going on,” Verrecchia said.

The child’s workbench was designed for children over the age of three, said company officials. Both children who suffocated on the nails were younger than that.

A speeding sport utility vehicle plunged into Elliot Bay early Sunday, killing two teens and injuring four others who were rescued from the water, police said.The Ford Explorer carrying six boys in their late teens flew off an embankment after failing to navigate a corner, police spokesman Sean Whitcomb said.

“Drugs and/or alcohol may have played a factor, but certainly excessive speed did play a factor,” Whitcomb said.

Fire department medics and someone who lived nearby rescued the four survivors and helped them to shore, Whitcomb said.

They were taken to Harborview Medical Center with severe injuries, some of which may be life-threatening, Whitcomb said.

Authorities did not release the victims’ names.