Seventy five percent (75%) of a contingency fee may be much smaller than 75% of the attorney fees calculated on an hourly basis (i.e., the hours worked by the attorney multiplied by the attorney's normal hourly billing rate). Plaintiffs in Alaska with modest claims previously faced the risk of having to pay a large attorney fee award to the defendant if they did not "beat" the defendant's offer of judgment while only receiving a modest attorney fee award if they instead prevailed. In the case handled by the Alaska Personal Injury Law Group, the Alaska Supreme Court ruled that Rule 68 attorney fee awards could be calculated for both defendants and plaintiffs on an hourly basis even if the plaintiff hired his attorney under a percentage contingency fee. This ruling affirmed an attorney fee award to Mr. O'Donnell's client that State Farm had argued was far too large.

The bottom line is that this decision substantially increases the incentives for insurance companies to accept reasonable settlement offers (instead of delaying, litigating, and hoping that claimants will eventually settle for less), at least when injured individuals are represented by competent counsel and the insurance company knows that their attorney is willing to go to trial.

Okagawa v. Yaple, Opinion No. 6494 (July 16, 2010), accessed at: http://www.courts.alaska.gov/ops/sp-6494.pdf

Mr. Moody received his law degree from the University of Arizona in 1972 where he served as Editor-in-Chief of the Law Review and received the academic award of Order of the Coif. He served as a law clerk to Judges Thomas Stewart and Victor Carlson in Juneau before moving to Anchorage. Mr. Moody has practiced law in Alaska since 1975 specializing in representing those injured by negligence or defective products, and claims against insurance companies for fraud and bad faith conduct against their policyholders.

Mr. Vollertsen was also selected as an Alaska Super Lawyer. Mr. Vollertsen has been a member of the Atkinson, Conway & Gagnon law firm since 1982. His practice includes complex litigation matters primarily involving products liability, wrongful death, and personal injury. He served as Law Clerk to Chief Justice Edmund Burke of the Alaska Supreme Court. Mr. Vollertsen was also editor-in-chief of University of San Francisco Law Review, 1980-81, and contributing editor to Alaska Court Review, 1983-2000. Mr. Vollertsen was also named by Best Lawyers in America as Alaska's "Personal Injury Lawyer of the Year" for 2009.

The rigorous merit-based process used for Super Lawyers selection includes an evaluation of each candidate based on 12 indicators of peer recognition and professional achievement: verdicts and settlements; transactions; representative clients; experience; honors and awards; special licenses and certifications; position within law firm; bar and or other professional activity; pro bono and community service as a lawyer; scholarly lectures and writings; education and employment background; and other outstanding achievements. This ranking is then followed by a peer evaluation from other Alaskan attorneys in the practice area. The final candidates selected were those with the highest point totals from each category, and included only five (5) percent of all attorneys in Alaska.

Mr. Moody and Mr. Vollertsen are also all AV rated by Martindale Hubbell, the highest national rating for legal ability and ethics, and have been listed in the Best Lawyers in America for over 10 years.

Bruce Gagnon, Robert Dickson, Patrick Gilmore and Jerry Juday, also with the Atkinson, Conway & Gagnon law firm, were also selected as Alaska Super Lawyers in their respective areas of practice.

Source: http://www-nrd.nhtsa.dot.gov/Pubs/811171.PDF

Two new studies support the early data on the efficacy of a new MRI tool--diffusion tensor imaging--in the diagnosis of traumatic brain injury (TBI). Diffusion tensor imaging allows the care provider to visualize the brain's white matter, which contains the fibers that connect nerve cells. Conventional MRI would commonly not reveal any differences between the patients with mild TBI and controls. DTI, however, is finding objective evidence on imaging that is consistent with a positive finding on neuropsychological testing.

One study at the University of New Mexico has found that diffusion tensor imaging can be used to reliably detect and track brain abnormalites in patients with mild TBI. The study compared patients with known mild TBI and found that conventional MRI did not reveal any differences between those with TBI and control subjects. The diffusion tensor imaging, however, demonstrated white matter abnormalities in the subjects known to have TBI. Thus, the technique was successful in finding objective evidence of injury when conventional MRI failed to do so. Another important finding was that, when the patients found to have such abnormalities were evaluted with diffusion tensor imaging 3-5 months later, a period by which recovery is expected, the diffusion tensor imaging was able to track these white matter changes, as well. The study concluded that diffusion tensor imaging can provide an objective biomarker that can assist in the classification and tracking of mild TBI injuries and their effects.

With this kind of literature developing about the effectiveness of diffusion tensor imaging, we expect this imaging technique to provide patients with better diagnosis and treatment. The reader may also be interested in our previous reports about this literature, here, and here.

Sources:

Mayer, AR et al. “A Prospective Diffusion Tensor Imaging Study in Mild Traumatic Brain Injury.” Neurology, February 23, 2010, Vol. 74, pp. 643-650.

Bigler, ED and Bazarian, JJ. “Diffusion Tensor Imaging: A Biomarker for Mild Traumatic Brain Injury?” Neurology, February 23, 2010, Vol. 74, pp. 626-627.

"Use of Herbal Products and Potential Interactions in Patients With Cardiovascular Diseases," Journal of the American College of Cardiology, 2020; 55:515-525.

Medpage Today, 2/1/10.

Source:

"Clinical Pharmacology and Dietary Supplements: An Evolving Relationship," Clinical Pharmacology & Therapeutics, Vol. 87, No. 2, Feb. 2010.

Most persons infected with Salmonella develop diarrhea, fever, and abdominal cramps 12–72 hours after infection. Infection is usually diagnosed by culture of a stool sample. The illness usually lasts from 4 to 7 days. Although most people recover without treatment, severe infections may occur. Infants, elderly persons, and those with weakened immune systems are more likely than others to develop severe illness. When severe infection occurs, Salmonella may spread from the intestines to the bloodstream and then to other body sites and can cause death unless the person is treated promptly with antibiotics.

Sources:
Feb. 1, 2010, USDA

January 31, 2010, USDA

CDC Investigation of Multistate Outbreak of Salmonella

The findings are set out in an article in the International Journal of Clinical Practice. The researchers reviewed over 50 studies published since 1995. The data particularly focused on erectile dysfunction medication, and showed the over 44% of these drugs were fake. The consequences were dire for some, including 150 men admitted to hospitals after taking counterfeit tadalafil and herbal preparations that claimed to cure the dysfunction. Seven were comatose and four subsequently died. Two pregnant women died after being given injections of a counterfeit iron preparation for anemia. Fifty-one children died of kidney failure after taking paracetamol syrup contaminated with glycol, an antifreeze used in cars.

We have previously reported on the problem of herbal preparations being spiked with prescription medications here, here, here, here and here.

Source:

Jackson et al. Counterfeit phosphodiesterase type 5 inhibitors pose significant safety risks. International Journal of Clinical Practice, 2010

We see corporate deceit in many of the cases we handle, so we get hardened to it. Sometimes we see a story, however, that amazes even us. This is one of them. A St. Petersburg, Florida company, Youth Research, had been hired to perform child safety tests on cigarette lighters. It has now been found to have falsified the tests and to have submitted fraudulent reports to federal regulators. The discovery of the fraud has prompted the Consumer Product Safety Commission to order 12 lighters off the market until they have been retested.

The CPSC implemented lighter safety standards after research showed that children under the age of 5 had inadvertently started 5,900 residential fires resulting in 170 deaths and 1,150 injuries in a two-year period. The standards require that panels of 100 children be given dummy lighters to see if they can activate the lighters. A lighter would pass only if 85% of the children could not activate it. In creating the fraudulent test results, the company altered birth dates and identity records and eliminated data that showed that a child could ignite the lighters.

The woman at the center of the fraud, Karen Forcade, has now pleaded guilty to fraud in federal court.

Sources:

St. Petersburg Times, January 23, 2010.

The Tampa Tribune, January 24, 2010

United States of America v. Karen Forcade, U.S. District Court, Middle District of Florida, Case No. 8:09-CR-544-T-27TBM.

As for the safety of these products, the industry has repeatedly picked the pockets of consumers with this magical thinking: "it is all-natural, so it has no side-effects but it works better than drugs." Of course, for a compound to work, it must have an effect, which means it is capable of affecting the body and causing side effects. It can't be effective and affect the body positively but never affect the body negatively. If it can affect the body at all, it is capable of having side effects, period. It is as if they were saying, "yes you can have the money and never pay taxes on it." Yet, we know that the IRS always gets its piece. And, herbals and diet supplements will always tax the body--there are always side effects.

We can't blame the industry, because we let them get away with selling billions of dollars of useless or dangerous or tainted products. We let Congress take money from the industry's lobbyists to pass DSHEA and dodge the effective regulation of the marketing and manufacturing of these products. We let the diet supplement industry tell consumers, "Ego exigo, proinde is est bonus,"...."I sell it, therefore it is good." We do not demand that the marketeers prove their case that a product is safe or efficacious, the simple standard the drug and OTC industries must meet.

Today's news comes to us from the Journal of the American Medical Association reporting on a study of over 3,000 people between 72 and 96 who were followed for over 6 years. None had dementia before the study began. Those who took the supplement fared no better than those who took a sugar pill in tests examining memory, language, attention, and other measures of cognitive function.

With annual sales of gingko biloba of over $250 million dollars, the industry could well afford to pay for its own testing for safety and efficacy. But, instead we paid for the testing with public funds. We let that happen, too.

Sources:

Snitz BE, et al "Ginkgo Biloba For Preventing Cognitive Decline In Older Adults" JAMA 2009; 302(24): 2663-70.

Diet Supplement Glucosamine No Better Than Placebo, February 20, 2008

New York Times, Extra Vitamin E: No Benefit, Maybe Harm, March 24, 2009

New York Times, Vitamin Pills: A False Hope?, February 16, 2009

The FDA has taken the position that generics are equivalent, but the public is not informed about the agency's standard of review: a generic is deemed "bioequivalent" if it achieves 80 to 125% of what the brand-name drug provides. This is a huge variance, and one we don't accept in many human endeavors, whether we are talking about a pilot landing a plane or sending in what we owe to the IRS.

Indeed, specialists acknowledge a growing concern that patient experiences on generics are problematic, especially for those patients who have conditions that present significant risk of injury if chronic conditions are not properly treated, as in epilepsy or atrial fibrillation. For example, The American Academy of Neurology has released a position paper on generics, stating that: “The A.A.N. opposes generic substitution of anticonvulsant drugs for the treatment of epilepsy without the attending physician’s approval.”

If you take medications for a condition that has the risk of significant injury or death if your medications are not effective, you should discuss this concern about generics with your prescribing physician. Become an informed consumer about the generic drug you are being asked to take. And regardless what you are told, pay close attention to your symptoms and changes in your condition after taking generics so that you can determine from your own experience whether a generic drug is right for you.

Sources:
New York Times, Dec. 17, 2009

The People's Pharmacy, Dec. 17, 2009

This decision follows on the heels of the United States Supreme Court's ruling in Wyeth, Inc. v. Levine that the FDA's approval of a drug's label does not provide immunity from suit by federal preemption when name-brand drugs cause injury. The Eighth Circuit's decision in Mensing was the first federal appellate decision since Levine to rule that federal preemption does not immunize generic drug manufacturers from liability.

Please see our earlier discussions about the importance of defeating this preemption doctrine.

3/4/09, 12/15/08, 10/20/08, 9/11/08, 8/15/08, and 7/17/08.

Sources:

Mensing v. Wyeth, Inc., (pdf)

•More than half of the adult population, about 114 million people, consume dietary supplements.
•The majority of consumers mistakenly believe that dietary supplements are approved by a government agency –- two-thirds of them thought that the government requires that labels on supplements include warnings about their potential side effects or dangers.
•The great majority of the estimated 50,000 adverse events that occur annually remain unreported to the FDA, even though manufacturers have since 2007 been required to report serious supplement-related adverse events to the FDA.
•A recent survey of more than 300 physicians who were residents in internal medicine at fifteen different U.S. training programs showed that one-third of them believed that diet supplements require FDA approval – the majority did not know that adverse events suspected to have been caused by supplements must be reported to the FDA.

The Journal emphasized that a wide range of supplements have been found to be contaminated with toxic plant material, heavy metals, or bacteria. Moreover, dozens of supplements have been found to be intentionally contaminated (“spiked”) with prescription medications, controlled substances, experimental compounds, or drugs already rejected by the FDA for safety concerns. As recently as July 2009, the FDA alerted the public to a list of 75 tainted weight loss products that contained undeclared medications, including the stimulant sibutramine, some at levels three times the maximum recommended daily dose. Others contains rimonabant (linked to suicide) and fenproporex (linked to addiction and suicide). Some weight loss pills, many from Brazil, combine multiple medications in a single formula, substantially increasing the risk of adverse events.

The Journal also explained how unscrupulous manufacturers were attempting to fly below the FDA’s radar by using analogues of pharmaceutical compounds. A recent analysis showed that half of 26 supplements marketed for enhancement of sexual function contained analogues of phosphodiesterase Type 5 inhibitors. Reports from three separate countries establish that the analogue of fenfluramine has been linked to liver damage, including fulminant hepatic failure requiring transplantation.

Most recently, tainted products were found being manufactured by a domestic company, American Cellular Labs, which was manufacturing supplements contaminated with anabolic steroids.

The article closed with the admonition that physicians should maintain a high index of suspicion for supplement-induced adverse effects, even when the component stated on the label are not known to cause the symptoms the patient is suffering. After recognizing that DSHEA presents "serious obstacles to the FDA's ability to detect and eliminate contaminated supplements," it called upon Congress to give the FDA the necessary authority and resources to regulate this industry, the author concluded that, until that regulatory authority was given: “Millions of Americans will continue to be exposed to unacceptable risks in exchange for purported but unproven health benefits.”

Source:

New England Journal of Medicine, Volume 361:1523-1525 October 15, 2009 Number 16