South Florida Personal Injury Lawyers

Eli Lilly & Co., makers of Zyprexa, have settled about 18,000 claims alleging that it did not adequately warn patients or vendors that it can cause diabetes, but about 1,200 plaintiffs are holding out, and more suits are being filed by state governments and insurance companies.

Lilly announced that it agreed to settlement terms with 14 law firms. Lilly is to pay just under $500 million to settle the claims in the fourth quarter. Lilly has previously paid $700 million to compensate 10,500 victims in 2005.

More Legal Trouble

Lilly isn’t out of hot water yet. The company is facing suits from third-party payers who claim they would not have paid more for Zyprexa over other brands if they had been adequately warned of its risks.

The 1,200 personal-injury lawsuits still remaining could still be a threat to the company, some lawyers say.

Several states are also discussing filing suit against the makers of the blockbuster drug. Connecticut Attorney General Richard Blumenthal has broadened an existing investigation into Lilly’s Zyprexa marketing practices with cooperation from other states. Blumenthal said a “potentially huge claim” alleging that Lilly marketed the drug for unapproved uses may be in the making.

Some attorneys general have already filed lawsuits.

“What’s left is a significant number of seriously injured plaintiffs’ cases pending in state and federal court, and you have a half-dozen or more attorney-general cases and you have third-party payer class-action cases,” said one lawyer, William Audet, who represents more than 300 plaintiffs whose suits were not included in the last settlement.

The videotape has no sound, but the images are clear.Brenda Lee Brown, 43, pushes her son’s stroller across a carwash parking lot. A black Isuzu Rodeo rolls, then speeds in her direction. She thrusts the stroller out of harm’s way before the vehicle crashes into her.

The sport utility vehicle ends up in the street, cars swerving to avoid it. Brown lays crumpled on the ground, unmoving.

Two days later, Mother’s Day 2005, she dies of her injuries.

This week, a jury will decide whether the tragedy was a freak accident or the result of negligence by Town ‘N Country Car Wash.

Steve Yerrid, who filed a wrongful death lawsuit against the carwash’s corporate owner on behalf of Brown’s widower and young son, said the case is about more than a grieving family.

“Corporate homicide,” he said. “This lady lost her life because this corporation acted so badly.”

The attorney representing Two Brothers of Spring Hill, the carwash’s owners, did not return a call for comment Friday. In court documents, the company has denied any wrongdoing.

Authorities did not criminally charge Densil Blake, the 50-year-old carwash employee sitting in the Rodeo’s driver seat. In their official report, they said he was wiping down the vehicle’s interior when he accidentally shifted it into drive. As the SUV rolled forward, he mistakenly hit the gas pedal instead of the brake. Blake later said he panicked.

At that moment, Brown was pushing her 18-month-old son’s stroller across the parking lot to her newly cleaned Nissan Pathfinder Armada. Just before she reached her car, the Rodeo shot forward.

“Mrs. Brown was catapulted into the air, onto the hood of the sports utility vehicle and ultimately thrown to the ground,” the lawsuit stated.

Yerrid will show jurors the tragic scene. Authorities didn’t have the security video during their initial investigation, he said last week. The man who runs the business, a former officer with the Philadelphia Police Department, failed to reveal to investigators that such a tape existed, court documents show.

Yerrid, who last year won a $216.8-million medical malpractice jury award, said he learned of the tape during his firm’s investigation into the incident. He argued in court pleadings that the carwash’s failure to disclose it provides a basis for punitive damages.

Brown’s husband, McNeil “Mac” Brown, and their adopted son Darnell, now 3, claim in the suit that the carwash negligently employed “incompetent drivers” and operated with a defective design that required customers to walk in front of cars as they exited the wash line.

The suit takes particular issue with Blake. During his deposition, he admitted that he had never had a driver’s license. He rode a bike to work. A ninth-grade dropout and a construction worker in Jamaica until he moved to Tampa in 2003, he said he learned the trade of detailing from his brother who worked at the carwash.

Blake said he never moved cars at the business and did not know how to operate them.

“I didn’t try to steer the car” away from Brenda Brown, he said, “because I cannot steer the car.”

But a former carwash manager described Blake as a responsible employee who on rare occasions drove cars around the parking lot. “Only 10, 20 feet at the most,” Robert Ledoux Jr. said during his deposition.

Last year, the carwash offered McNeil and Darnell Brown $1-million to settle their claim. But Yerrid’s firm contends, and a judge has agreed, that the business has a $2-million insurance policy limit.

Yerrid said the carwash industry needs stricter standards and regulations for hiring and training.

Jury selection for the trial is expected to begin Monday.

“No mother should go to a carwash and lose her life,” he said.

A retraction of a damning report on infant car seats may be a relief for parents who feared for their babies’ safety, but it is an embarrassment for a trusted consumer guide.Consumer Reports said it was conducting an internal investigation into what may have gone wrong in its tests. The magazine originally reported that many seats had “failed disastrously” in test crashes at moderate speeds, but the National Highway Traffic Safety Administration said the tests were conducted at drastically higher speeds than the report had claimed.

Nicole Nason, head of the National Highway Traffic Safety Administration, urged parents Friday to continue using the infant seats.

“You’re doing the right thing. Keep doing it,” Nason said on CBS’s “The Early Show.”

“Parents should have confidence in their car seats, and they need to keep using them,” she said.

Consumer Reports spokesman Ken Weine said he could not say how the tests might have gone awry or who, if anyone, was to blame for the report, which was retracted Thursday.

“This is very early,” he said Thursday. “We found this information out very recently, and as soon as we did we wanted to take the most important step, which is openly communicating with consumers.”

The magazine said it would review its study, retest the car seats and publish a new article as soon as possible. It asked readers and others who may have learned of the tests “to remember that use of any child seat is safer than no child seat, but to suspend judgment on the merits of individual products until the new testing has been completed and the report republished.”

The initial report, released earlier this month, concluded that many car seats failed in crashes at speeds as low as 35 mph. In one test, it said, a dummy child was hurled 30 feet.

But the NHTSA said some of the crash tests were conducted under conditions that would represent being struck at more than 70 mph.

“Consumer Reports was right to withdraw its infant car seat test report, and I appreciate that they have taken this corrective action,” NHTSA administrator Nicole Nason said. “I was troubled by the report because it frightened parents and could have discouraged them from using car seats.”

Nason said more than 100 worried parents had called the agency’s hot line on the evening the original report was released.

Phil Haseltine, executive director of the National Safety Council’s Air Bag & Seat Belt Safety Campaign, said the report had raised doubts among many parents about their car seats despite the “very rigorous standard at NHTSA.”

“I think it’s going to take a substantial educational effort to undo that damage,” said Haseltine, whose organization was created through a partnership of automakers, insurance companies and safety groups.

Researcher Kristy Arbogast, of the Children’s Hospital of Philadelphia, who has studied child seat safety, said, “The worst thing that could happen from a study like this is that parents take their children out of child restraints.”

In a statement Thursday, Consumer Reports said it had received information from the NHTSA “concerning the speed at which our side-impact tests were conducted” - supposedly, 38 mph. Weine said new information from the federal agency showed that the speeds were higher.

The Yonkers-based magazine tested the type of infant car seat that faces the rear and snaps in and out of a base. It initially found only two of the 12 seats worth recommending, and it urged a federal recall of one seat, the Evenflo Discovery. Evenflo had immediately disputed the tests’ validity.

However, Weine said a recall was still being urged for the Discovery and for another seat that was judged unacceptable because it did not fit well in several cars. Evenflo said Thursday that it had run 17 tests on randomly purchased Discovery seats in the last week, and the seat passed federal standards each time.

The original report found that all the car seats except the Discovery performed adequately in 30 mph frontal crashes, which is the standard for seats sold in the United States. But it noted that cars are tested by federal regulators at higher speeds - 35 mph for frontal crashes and 38 mph for side crashes - so the magazine said it tested the seats at those speeds.

“When NHTSA tested the same child seats in conditions representing the 38.5 mph conditions claimed by Consumer Reports, the seats stayed in their bases as they should, instead of failing dramatically,” Nason said.

Consumer Reports’ Don Mays, a product safety director, said at the time, “It’s unconscionable that infant seats, which are designed to protect the most vulnerable children, aren’t routinely tested the same as new cars.”

In the 35-mph frontal test, seats separated from their bases, rotated too far or would have inflicted grave injuries, Consumer Reports said in the original report. At 38 mph, four seats flew out of their bases following side impact, it said.

Weine said Thursday there was no information casting doubt on the 35 mph crashes.

Consumer Reports, published by Consumers Union, has a reputation for objectivity that it backs by refusing any advertising and by refusing to permit use of its reviews in others’ advertising.

It does occasionally get challenged by manufacturers. In 2004, as part of a settlement of an 8-year-old lawsuit, Consumer Reports said that its finding about the Suzuki Samurai SUV - that it “easily rolls over in turns” - applied only to severe swerving turns on the test track.

The family of a man who was killed and his brother who was injured when their car was hit by a drunk driver has filed a lawsuit against the driver, her family, and two insurance companies.

The suit seeks $22.3 million in damages from the uninsured drunk driver, Cory Sause, and two insurance companies. It also seeks damages from Sause’s mother, Heidi Sause, who provided her daughter with alcohol and allowed her to drive while intoxicated.

“This suit is not vindictive, it’s about consequences,” said Vicki Kibler, mother of the man who died, Patrick Kibler. “We gave the (Sause family) enough time to deal with this on their own before we filed the suit … I think it’s the right thing to do, based on how everything’s been handled.”

Patrick’s two younger brothers were also seriously injured in the accident, which took place on Dec. 21, 2004.

In the accident, Sause was driving with a blood alcohol level of .19 percent, which is nearly 2.5 times the legal limit.

The Damages

The Kiblers seek $14 million for damages related to Patrick’s death, and an additional $7 million for the injuries Patrick’s brother Scott sustained in the crash. They also seek $5 million for economic damages the family has sustained due to funeral expenses, medical bills, their own lost wages, and the loss of Patrick’s future earnings.

The family seeks to recover $1 million from Progressive Northern Insurance Company, who denied their $1 million claim for personal injury for both Patrick and Scott Kibler. They say they had $500,000 coverage for each of them for injuries sustained in accidents with uninsured drivers. They also seek $300,000 from Unigard Insurance Company for Scott.

Scott’s Injuries

Scott suffered numerous broken ribs, a broken wrist, and finger, a deflated lung for which he required a chest tube, and a severe brain injury that put him in a temporary coma and required brain draining. Scott continues to receive treatment for neurological problems.

“(The impact) goes on and on. The bills never stop,” said Vicki Kibler.

The family of the woman who died after a radio station water-drinking contest reportedly plans to file a wrongful death suit against the station.

According to The Associated Press, Jennifer Lea Strange’s family plans to announce the lawsuit at a news conference today in Sacramento, Calif.

Strange, 28, died Jan. 12, after entering a water-drinking contest sponsored by Sacramento radio station KDND-FM. Detectives have opened a homicide investigation after listening to a tape of the broadcast obtained by The Sacramento Bee newspaper.

Strange was one of 18 participants in a contest the disc jockeys on KDND’s “Morning Rave” program called “Hold Your Wee for a Wii.”

The contestant who drank the most water without going to the bathroom would win a Nintendo Wii gaming console.

Strange came in second after drinking nearly two gallons of water. Preliminary findings from the Sacramento County coroner’s office indicated that her death was “consistent with water intoxication.”

Judy Linder, a registered nurse, was listening to the program and was so alarmed that she asked a colleague to call and warn the station.

“She told them you could die from water intoxication,” Linder told ABC affiliate KXTV in Sacramento. “He [the disc jockey] pretty much blew that off and said they signed a release so, so what? Then he said why don’t your guys come down here and do it, and we said because we don’t want to die.”

Jokes About Danger

According to a tape of the show, the disc jockeys appeared to joke about the possible dangers of consuming too much water and alluded to a college student who had died during such a stunt in 2005.

“Yeah, we’re aware of that,” one of the disc jockeys said.

Another disc jockey said: “Yeah. They signed releases, so we’re not responsible. We’re OK.”

“And if they get to the point where they have to throw up, then they’re going to throw up, and they’re out of the contest before they die, so that’s good, right?” another disc jockey said.

The transcript also suggests that the announcers were aware that Strange appeared to struggle during the water-drinking contest.

Disc Jockey: “Jennifer, I heard you were not doing too well.”

Strange:“My head hurts.”

Disc Jockey: “Aw.”

Strange: “They keep telling me it’s the water. It will tell my head to hurt and that it will make me puke, but.”

Disc Jockey: “Who told you that? The intern?”

Strange: “Yeah. It makes you. & It hurts, but it makes me feel lightheaded.”

Firings at Station

KDND’s parent company, Entercom/Sacramento, fired 10 people, including the three announcers involved in the contest on Tuesday, and took “Morning Rave” off the air.

The company has promised to cooperate with the homicide investigation.

John Geary, the general manager of Entercom/Sacramento, recorded a statement for radio station listeners on Tuesday.

“First and foremost our thoughts and sympathies go out to Jennifer’s family and loved ones,” he said. “I also want to assure you that the circumstances regarding this matter are being examined as thoroughly as possible.”

Water intoxication can be a problem for marathon runners and other athletes who lose fluids and replace them too rapidly, but there are other infamous cases alleging water intoxication.

In 2005, Matthew Carrington, 21, of Chico, Calif., died after drinking excessive amounts of water during a fraternity initiation. Four fraternity members pleaded guilty to manslaughter and misdemeanor hazing in his death.

Sacramento lawyer and former U.S. attorney Bill Portanova believes that the Carrington case will be important to any lawsuit filed against KDND.

If KDND’s disc jockeys alluded to Carrington’s death, Portanova said, then they should have known about the risks. As for Strange’s signed release form, according to Portanova, “You can’t agree in advance to someone’s negligence.”

Portanova said he would be surprised to see an out-of-court settlement.

‘We Miss Her Dearly’

Meanwhile Strange’s husband and three children continue to grieve.

“She was trying to win something for her family that she thought we would enjoy,” her husband, William, said a short statement last weekend. “We will miss her dearly. She was my girl.”

Tracy Beam, Strange’s friend, blames the station.

“People have died from this before, and here we are. We don’t have our Jennifer,” Beam said.

The families of two children mauled in a November 2005 pit-bull attack

and other victims have settled their civil lawsuit against the dogs’ owners, attorneys said Wednesday.

Although none agreed to disclose terms of the settlement, attorneys for the families of Nick Foley and Jourdan Lamarre, who were most severely injured in the attack, confirmed the settlement.

“The parties have all met and the matter has been resolved, but there are technical agreements that need to be cleaned up,” said Stephen B. Cohen, an attorney for the Foleys. “Terms of the settlement are confidential.”

Martin Dolan, an attorney for the Lamarre Family, said there still were some issues to agree on, such as how to hold funds for Lamarre’s long-term medical care and negotiate outstanding medical bills. He said he expected that to be completed in about 30 days.

Attorneys met briefly Wednesday to inform a judge of their settlement. They asked for March 20 court date, at which time the lawsuit officially could be dropped, said Dane Loizzo, an attorney for Gerd Gerdes, a neighbor who also was attacked.

“Hopefully we will dismiss everything at that point,” Loizzo said.

Alfred Stavros, an attorney for the dogs’ owner, Scott Sword, called the situation a set of horrible circumstances.

“If Scott could take the injuries that the kid sustained, he would,” Stavros said. “He is very remorseful and did everything possible to help Nick avoid serious injury.”

Three pit bulls belonging to Sword and his live-in girlfriend, Cathie Doyle, escaped from their Hawthorne Drive home near Cary on Nov. 5 and attacked and injured six people.

Foley and Lamarre, then both 10, were going door-to-door selling candy and magazine subscriptions for a Girl Scout fundraiser when the dogs escaped after they knocked on Sword’s door.

The civil lawsuit originally was filed by Allstate Insurance Co., after the victims filed claims against the dog owners’ insurance policy. However, the parties counter-sued, seeking more than $50,000 for medical expenses.

Allstate Insurance Co. covers Doyle, who had a homeowner’s policy in her name, by as much as $300,000 for the damages, according to court documents. The insurance company had asked other parties in the case to come to court to determine what portion of the claim should go to whom.

“This is not an easy case for anyone,” Cohen said.

The settlement was equitable but not adequate for the severity of injuries the victims suffered, Stavros said.

“[Sword] doesn’t have money to pay … there are just no assets, if there were, we’d certainly pay them,” Stavros said.

Stavros wouldn’t confirm that the insurance company was paying the entire settlement but said Sword wasn’t paying any money directly out of his pocket.

Foley, who was the most seriously injured, remained hospitalized for about six weeks after the attacks. He continues today to receive extensive medical treatment for his wounds and will require additional surgeries.

“He’s lucky to be alive,” Cohen said.

Sword has pleaded guilty to three ordinance violations for letting the dogs run loose, and he was ordered to pay the maximum $150 fine.

The dogs were shot by police during the attack.

A judge has tossed out all but $10 million of a $190 million jury verdict ordering a company that makes water pumps to pay Celebrity Cruise Lines Inc. in a case involving an outbreak of Legionnaires’ disease on a cruise ship in 1994.Calling the jury verdict “manifestly erroneous,” U.S. Magistrate Judge James C. Francis IV let stand $10.4 million awarded in May 2006 for expenses such as refunding passengers, housing and transporting crew members and decontaminating the ship, the Horizon.

But he tossed out $135 million awarded for lost value to the business and ordered a new trial on the jury’s finding that Celebrity should receive $47.6 million in lost profits.

The verdict was in the cruise line’s case against industrial manufacturer Pentair Inc., whose subsidiary Essef Corp. was sued by Celebrity, along with two other companies. Pentair acquired Essef in 1999.

Celebrity had claimed several passengers contracted the disease, a respiratory infection, because a defective water filter in a whirlpool spa failed to stop the spread of bacteria.

Legionnaires’ disease, which got its name from an outbreak at an American Legion convention in 1976, is a form of pneumonia. Most people exposed to the bacteria never get sick, but the elderly and people with weak immune systems can be susceptible. The disease is treatable with antibiotics.

The judge said Celebrity provided substantial evidence that it suffered from a stigma after the Legionnaires’ outbreak and had to cut prices to attract passengers.

But he said Celebrity’s officers and employees failed to link any specific lost bookings to the Legionnaires’ incident and Celebrity did not identify one potential passenger or travel agent who declined to book a cruise because of it.

The judge also said there was evidence that Celebrity’s business had rebounded significantly by the end of 1994 and that the need to discount fares to attract customers later in the 1990s was a practice that ran “rampant in the cruise industry for reasons having nothing to do with the Legionnaires’ incident.”

Telephone messages for comment left with lawyers in the case were not immediately returned Wednesday.

A new study dispels convictions commonly held by business and medical lobbying interest groups that medical malpractice lawsuits are to blame for out-of-control health care costs and short doctor supply.

The report, titled “The Great Medical Malpractice Hoax,” released by Public Citizen, claims there is no medical malpractice lawsuit crisis in the United States.

The Real Crisis

The real problems, the study contends, are:

• The lack of emphasis placed on patient safety
• The high incidence of avoidable medical mistakes
• Lack of accountability for the small subset of doctors that account for a disproportionately large number of medical malpractice complaints

The report also gave several recommendations to congress, hospitals, and state governments to improve health care and lower its cost.

“Over the past few years, the Republican-led Congress has repeatedly attempted to curtail the legal rights of medical malpractice victims by capping damage awards and imposing other limits on access to the courts by consumers,” said Public Citizen President Joan Claybrook. “This report shows that lawmakers were misguided; in fact, Congress should work to reduce medical errors.”

The Recommendations

To prevent errors, improve patient safety, and reduce the costs of medical care, Public Citizen recommends that:

• Congress should implement a mandatory adverse event reporting system
  
• Install computer systems for prescriptions to avoid medication errors caused by bad handwriting
• Limit physician workweeks to cut down on mistakes caused by fatigue

• Improve physician oversight to discipline the small number of doctors who get a lot of medical malpractice complaints
• Increase funding to increase staffing and increase oversight