Boston Accident Lawyer Blog

In my previous post on this subject, I discussed why backyard swimming pools are generally a very strong liability risk. This type of liability broadly falls under an area of law known as "premises liability”. Legally, property owners in Massachusetts have an obligation to provide a safe environment for visitors and guests. In the event of a pool accident, an experienced Massachusetts premises liability attorney should be consulted. Under no circumstances should anyone who has been injured in such an accident, speak to an insurance representative or any other person, until they have spoken first to an experienced Massachusetts premises liability attorney. Swimming pool injuries and deaths involve complex medical and legal issues. When young children are injured, these injuries frequently involve neurological and cognitive impairment that is not always immediately apparent. Hence, the legal response to such an injury requires considerable legal experience in this area of practice.

In terms of geographical incidence of swimming pool injuries, studies indicate that (logically,) children in northern and northeastern states are involved in a higher percentage of these accidents than occur in warmer states such as Florida and California, owing to greater inexperience around swimming pools in the winter states. Anyone who buys a home with a swimming pool, or puts one in their backyard and thinks there is nothing more they need to do but ‘clean out the bugs’, is making a serious legal mistake. Proper swimming pool safety requires that several measures be taken:

• The area around the pool should be secured from curious children or intruders (usually by a view-obstructing high fence)
• Supervision appropriate to the ages of the persons using the pool should be present (as was apparently not the case in the Connecticut case in my previous post)
• The water should be regularly maintained for cleanliness and proper chemical balances.
• If a diving board is present, measures need to be taken to keep users from endangering one another.
• Signs pointing out particular hazards or warnings should also be openly and clearly displayed.

The types of injuries suffered in swimming pool accidents usually group as follows:

• Fractures resulting from improper diving or falling on hard, wet surfaces around the pool
• Head and brain injuries or spinal cord damage resulting from collisions in the pool or unsafe diving conditions
• Infection or illness caused by unsafe levels of bacteria in the water
• Toxic reaction to excessive use of chemicals
• Brain damage resulting from lack of oxygen in near drowning accidents, particularly those involving children
• Death by drowning

Rule One for homeowners with a swimming pool: Make sure that your homeowners’ insurance policy provides coverage for liability claims arising from the use or maintenance of your pool. Generally, I would not advise anyone with a swimming pool at their home to carry anything less than a bare minimum of $1.5 million in coverage. Many homeowners’ policies require a separate umbrella to provide this type of coverage; check with your insurance agent to make sure that you are adequately insured. Aside from individual homeowners, potential defendants in a swimming pool accident case commonly include a condominium association, an apartment building owner, a day camp or summer camp operator, a school district or university, or a hotel/motel resort. In some cases, where negligent installation or repair of a pool played a role in the accident, the manufacturer or installer of the pool might be liable as well. Aware of the dangers associated with swimming pools, the U. S. Consumer Product Safety Commission is conducting a national Pool Safety Campaign. Click on these links to learn more.

In the mean time, if you or someone you know has been injured in a swimming pool accident, contact our office for a free consultation. We are experienced with this type of litigation, and can provide you with the expert legal guidance you will need.

In sum, I’d say this to any owner or operator of a swimming pool, whether residential or commercial: Stay cool this summer. But when it comes to legal measures, be cool in protecting your legal interests. Or things could get very hot.

Summer is usually a time when thoughts turn to cooling off and leisurely days around a swimming pool (especially during heat waves such as we’ve had recently here in Massachusetts.) That makes perfect sense, but in my view as a Boston accident lawyer, not enough people are aware of the dangers of backyard swimming pools – whether in-ground or above-ground. In my career, some of the worst injuries I have seen involve swimming pool injuries. While having a swimming pool at your house can sometimes add to a home’s market value, legally, it can pose serious, and even deadly, hazards.

This was recently made clear in a suit filed in neighboring Connecticut, which resulted in a settlement of $1.1 million to the family of a 3 year-old boy who drowned in a swimming pool. Actually, this case illustrates two important points: 1) The risks that are associated with swimming pools (this falls under “premises liability”); and in this case: 2) The risk that can arise when parents represent to third parties that their son or daughter is capable of caring for another person’s child by babysitting, when in fact they know that their child has no particular skills to do so (this is known as “negligent entrustment.”) This particular case out of Cheshire, Connecticut, involved the death of a 3 year-old boy, Cole Veenhuis, who drowned May 2 2009 in his family’s swimming pool while being baby sat by Krista Repko, a teenager that had been hired by the boy’s parents to baby sit him and his twin sister.

Apparently, after the boy fell into the family pool, the teenage bay sitter “Froze up for a significant period of time and didn’t immediately jump into the pool to rescue the youngster”, according to the attorney for the parents of the deceased boy. As a result, the boy drowned when it appeared that he could have been saved with a quick response. The deceased boy’s mother, Diane Veenhuis, told the New Haven Register in a statement that her son’s death “Was definitely preventable and morally should have been foreseeable by the individuals we entrusted.” Diane and Richard Veenhuis alleged in their suit that the baby sitter’s mother, Michelle Repko, misrepresented her daughter’s abilities as a baby sitter to them, assuring them that her daughter could react responsibly to almost any emergency. “It wasn’t until after the tragedy when information was disclosed, which had we known, we would not have chosen her for a baby sitter,” Diane Veenhuis said.

Following an investigation into the circumstances surrounding the drowning, the police and the Connecticut state attorney’s office chose not to bring charges.

The Veenhuis family plans to put the settlement money in a trust for their daughter to be used in part to help Hannah deal with the pain associated with the loss of her brother, as well as to establish a memorial fund in Cole’s name. “Life doesn’t last forever, but our love for Cole will,” Diane Veenhuis said. “Our hearts are forever broken.”

A case like this illustrates the need to be aware of the dangers that swimming pools represent. In a great many of these types of cases, the injuries and drowning deaths that occur are sustained by children. This is so for a variety of reasons:

• The water is blue and attractive; (in legal parlance, a swimming pool is known as an “attractive nuisance”);

• It is difficult to know exactly how deep a given area of the pool is because unlike in commercial settings (such as hotels) and with municipal pool settings, there is almost ever any signage at the edge of the pool indicating pool depths at particular points along the pool; This increases the odds that neck and back injuries will result when someone jumps into a too-shallow area of a pool. Paralysis injuries are not uncommon.

• The pool is almost always surrounded by concrete or flagstone-type walking surfaces, which are slippery when wet and can cause severe injuries in the form of broken bones and concussions that can result in brain damage.

• Often, there is a diving board present, which can result in traumatic injuries when falling the ‘wrong way’.

In my next post on this topic, I’ll discuss the type of injuries that are common to this type of event, and what legal measures should be taken to minimize them.

Massachusetts just got a lot more sane in the area of dealing with the legalities of liquor liability, particularly with the need for ready compensation to pay for injuries and damages that often follow negligent service of alcohol by a licensed bar or restaurant. These injuries and damages usually result from a Massachusetts motor vehicle accident, but can injuries stemming from a patron being over-served alcohol at a bar or restaurant can also occur without any vehicular accidents being involved. On May 28 2010, Governor Deval Patrick signed into law Chapter 116 of the Acts of 2010, which amends M.G.L. Chapter 138 Section 12, the relevant law in Massachusetts that governs issuance of liquor licenses to bars and restaurants.

It may come as a surprise to many readers, but previous to the enactment of this legislation, bars and restaurants were not required to carry liquor liability insurance in Massachusetts. Not in any amounts, at all. Shocking, isn’t it? Consider: If you own or operate a restaurant in Massachusetts, you are required to produce proof to the local (i.e., city or town) licensing authority of a number of different things before you can be issued a license to operate (known legally as a “victualler’s license.”) The facility needs to pass inspections by the local Board of Health, adhere to state labor laws, produce proof of workers’ compensation insurance, contribute to the state unemployment insurance system, and (almost always) carry a policy of General Liability insurance. But to be issued a liquor license, while you would have to you surmount several additional hurdles before being issued such a license, you would not have had to produce evidence of a policy of liquor liability insurance, at all.

Why is this so important? Because almost all General Commercial Liability insurance policies don’t provide liability coverage for legal damages and injuries that result from the negligent service of alcohol by bartenders and/or wait staff. So while you could swallow a piece of glass in a restaurant and the owner’s general liability policy would almost certainly pay for damages, and while you could suffer a slip and fall accident on site and there would also be coverage to pay for your damages, there wouldn’t be coverage if someone in that restaurant was negligently over-served alcohol, then left the facility and caused injury to you while intoxicated. The stark reality is that up until now, the majority (though not all) bars and restaurants in Massachusetts “went naked” when it came to liquor liability insurance. If someone was unlucky enough to be injured by (usually) a drunk driver who was negligently served alcohol at a bar or restaurant, they had to get simultaneously lucky enough that the OUI driver had been served at a facility that carried liquor liability insurance. If the bar or restaurant who negligently served the alcohol didn’t have a specific policy of liquor liability insurance, there was often no source of money to pay a liability judgment. In that case, collecting on a judgment rendered in a plaintiff’s favor, was often impossible. I’ve blogged about this in the past.

Thankfully, that has now changed. M.G.L. Chapter 138 Section 12 has now been amended to require any Massachusetts bar or restaurant owner seeking a liquor license, to first produce evidence of a valid policy of liquor liability insurance, in minimum amounts of $250,000/$500,000, before any such liquor license may be issued. The “$250/$500” provision refers to the legislative mandate that the policy provide minimum liquor liability coverage amounts of $250,000.00 for bodily injury or death for one person, and a total of $500,000.00 for bodily injury or death per incident, for more than one person within the same incident. The certificate of insurance evidencing this coverage must be in a form acceptable to the local licensing authority. Given the types of devastating injuries and long-lasting medical expenses that can result from drunk driving collisions, I have to say that these “250/500” limits are rather low. But it is a start toward improvement in this area of law, and it is certainly better than what existed previously.

So, while driving on the road in Massachusetts didn’t get instantly safer with the passage of this legislation, the odds that a victim of a drunk driver who was negligently over-served alcohol by a restaurant will have access to liability insurance to pay for his or her damages, just got a lot brighter. Governor Deval Patrick deserves credit for signing this bill into law, and the Massachusetts Academy of Trial Attorneys deserved credit for filing this legislation and securing its passage.

My regrets over not having posted for awhile here, but let’s get back to things today:

Normally, as this is blog is about Massachusetts personal injury cases and Massachusetts tort law, I write about plaintiffs’ civil justice issues occurring primarily in this state. However, a recent case verdict out of the state of California offers some instructive points on how personal injury plaintiffs can achieve far better legal and financial results with a small firm, than with a large law firm. On this very point, by the way, visit the “About The Firm“ tab at my web site Home Page. See the article. "The Urge To Merge: Bad News." I think you’ll find it interesting.

Two small plaintiffs’ law firms in California teamed up to obtain a $29 Million verdict against a corporation who operates a chain of 33 nursing homes across California and Utah, “Horizons West,” in an all-too-familiar case of nursing home negligence and abuse. The plaintiff was the estate of a 79 year-old woman, an Alzheimer’s Disease patient, who died after not receiving prompt medical treatment for eight days after she fell and fractured her hip. Aside from that untreated injury, the patient also developed a bed sore during those eight days, which was also listed as a cause of death on her death certificate. The plaintiffs’ lawyers, both essentially solo practitioners, alleged that the defendant nursing home intentionally understaffed the facility, or kept it at a bare minimum relative to the number of patients residing there, all to maximize its profits. Any surprise there? I’ve been writing and speaking about how corporations do this to consumers, patients, and all kinds of people, for over 20 years now. (If anyone still doubts that, take a look at my last post about BP and the Gulf oil spill.)

The plaintiffs’ lawyers who deserve the credit for this victory are attorney Edward Dudensing, principal of a two-lawyer firm in Sacramento, California, and attorney Jay Renneisen, founder of a two-lawyer firm in Walnut Creek, California. These two very small firm lawyers convinced the jury in this case that this nursing home operator intentionally and chronically understaffed their facilities, and that the owner of these facilities engaged in a corporate scheme that siphoned profits to another corporate entity, while giving the accounting appearance that the facility being sued, had essentially no assets. This is a common legal ploy with businesses that are sued: Set up a corporation separate from the corporate defendant being sued; give it a different name, different address, different staffing, different corporate officers and board of directors, different tax ID numbers. Discreetly siphon off funds from the primary corporate defendant, to that 2nd corporation, and essentially claim that the defendant corporation that is being sued is bankrupt and “judgment-proof”, to quote the legal term.

Thankfully, this scheme didn’t work here, because there happens to be another legal term known as “Piercing the corporate veil.” This occurs when a party (usually a plaintiff) successfully demonstrates to a court that the additional corporation is essentially what is legally known as an “alter ego” of the allegedly bankrupt defendant. In this case, these two talented small law firms were able to prove to the jury, that the defendant corporation was anything but devoid of assets, and that the secondary corporation was legally liable for the torts of the named primary defendant. According to Jay Renneisen, one of the plaintiffs’ two lawyers, “We were able to show how all the profits and assets floated up to the top (of the secondary corporation,) and all the liabilities were saddled on [the original corporate defendant], effectively leaving the defendant with no assets.” One particular trick the primary defendant tried, was to purchase a (liability) insurance policy for $1 million with a $1 million deductible, essentially yielding zero coverage. Making matters even worse, was that a $100,000 premium was paid to an insurance company owned by the parent of the “real” corporate defendant. This translates to the owners of this defendant essentially getting paid for lying (by collecting the “insurance” premium.) All this came into play (though not exclusively) in the jury’s award of punitive damages here.

There were far more egregious reasons to punish these defendants, than the assets manipulation and "alter ego" corporate scheme that they engaged in. The defendant corporation, Horizons West, was shown to have delayed the diagnosis and treatment of this 79-year-old Alzheimer’s patient, for eight days after she fractured her hip in a fall. As stated above, during that delay in treatment, she was left in a bed and developed a bed sore that also contributed to her death. At trial, the plaintiffs’ lawyers argued that the facility intentionally under-budgeted for staff, for the sole purpose of maximizing net income. Documents introduced at trial showed that the same day that the patient fell, the nursing home was given and acknowledged a “deficiency citation” from the state department of health, for assigning staff below what would be needed to provide the state-mandated 3.2 nursing hours for each patient per day. Just how bad was the staffing? Discovery showed the defendant employed 24 accountants for the company’s books, and only three nurses for the patients.

The facility intentionally reduced staffing, (including the day the patient fell and broke her hip,) to avoid paying staff overtime, the plaintiffs’ attorneys showed. Evidence at trial established that the facility put only one licensed nurse on duty for over 40 Alzheimer’s and dementia patients. The plaintiffs’ lawyers produced a former employee at the nursing home, a certified nursing assistant, who broke down in tears as she testified that the reason she quit the facility, was because she felt the patients were not getting the amount of type of care they needed. I’ve always been convinced that demonstrative evidence is among the most powerful types of evidence to use before juries and judges (aside from documentary evidence.) In this case, the plaintiffs’ lawyers took a page out of my playbook and taped all of their depositions. They then had these videos at the ready at trial, and used those videotaped depositions to expose contradictions and inconsistencies in witness testimony.

For example, in one witness’ in-court testimony, a nurse testified that she remembered repositioning the patient to relieve her bedsore, even though there was no notation in any medical records of turning or repositioning the patient. Cue the lights: The plaintiffs’ lawyers then played for the jury this same witness’ prior videotaped deposition testimony, where this nurse not only said that she couldn’t recall whether she had repositioned the plaintiff or not, but also appeared annoyed in the deposition that she would be even expected to recall any events that occurred five years earlier. The effect this contrast had on the jury? “One juror said that (deposition video) was the last thing left in his mind when they went into deliberations,” according to Edward Dudensing, one of the two plaintiffs’ lawyers. Great legal work.

In the end, the jury was so outraged that it ignored the plaintiffs’ request for $10 million in punitive damages and instead nearly tripled that amount to $28 million.

So let this case send two messages: One, that Massachusetts juries as just as smart as California juries, and when juries learn the truth about Massachusetts nursing home neglect and abuse, they will punish corporate defendants severely; and two: That by no means does it take a “major law firm” to get superior legal results. Most major or large law firms I know of would not have had either the agility or creativity to accomplish what these two independent lawyers did here. I operate my law firm the same way, which is why we get the superior results that we do, and why I admire these two lawyers' results here.

To analogize: If you had to choose, which would you rather have fighting for you in court: A swift, agile Bobcat, or a large, lumbering hippo?

I’ve written a considerable amount in the past about how big corporations and insurers regularly engage in cost-benefit decisions that show little regard for the safety and welfare of average Americans and consumers. If anyone has any doubts about this truth, (notwithstanding the myriad factual examples of corporate greed and disregard for Americans’ safety that have been previously offered by me and many other informed writers,) then consider this: TransOcean Corp., the owner of the Gulf oil rig that blew up on April 20 this year, spewing millions of gallons of crude oil into the Gulf of Mexico in the process, has wasted no time whatsoever in racing to federal court in Houston, Texas, to deny and/or limit liability for the incalculable environmental, financial, and physical damages that have resulted from this calamity.

Eleven rig workers are dead, millions of gallons of crude oil are spewing unstopped into one of the world’s most environmentally sensitive fishing grounds, and numerous industries and countless jobs have been impacted long into the future. The economic and financial harm that are likely to result from this spill could easily run into the billions of dollars, and this company has raced into court to deny that it is in any way responsible for this catastrophe, and to in any event limit its liability to a grand total of $26.7 million. Yes, that’s right: $26.7 million. Why the rather peculiar figure of $26.7 million, you might ask? That's the claimed value of the rig sitting at the bottom of the ocean. That's all TransOcean says it should be held laible for - if anything at all - as the result of this calamity. To put it to scale, that’s about 1/100th of what the total damages in this horrific event may eventually come to.

Worse, a federal judge in Houston granted TransOcean’s request, suspending all pending cases against it for the time being. On what basis does TransOcean make this claim? Under an ancient maritime law that allows vessel owners to limit their liability to the value of the vessel and its freight. Known as the Limitation of Liability Act, the law was passed in the mid-1800’s to protect U.S. maritime vessel owners, eliminate risk in some crisis situations, and aid in U.S. competition with foreign ships. Yes, that is the law that TransOcean claims applies to it now, in 2010, in the middle of one of the worst ecological catastrophes on record.

Pretty unbelievable, isn’t it? Not if you’ve been a liability lawyer for any appreciable amount of time. Doubtless trying to shield itself from shame in the process, a TransOcean spokesperson said the company filed the request in court on instruction from its insurers, in order to preserve its insurance coverage. Yet in the filing, TransOcean denies that the explosion and resulting injury and oil spill are its fault. Commenting on the court filing, a TransOcean spokesperson said, “We believe it is necessary to protect the interest of employees, shareholders and the company.” If anyone reading those words believes for one second that TransOcean is engaging in these maneuvers to protect its employees, they may as well join the Flat Earth Society. TransOcean, like all major corporations, is interested in one thing and one thing only: Maximizing their bottom line. Profits, pure and simple. Behind the scenes, almost everything else is secondary and expendable. That's standard operating procedure for large corporations. Money comes fist; morality, far behind.

Houston attorney Kurt Arnold commented that “TransOcean has compounded this terrible tragedy with a shameful legal filing that is intended solely to protect the company's interests.” Arnold has filed several lawsuits resulting from the offshore explosion. “They haven't even said they're sorry, much less take responsibility. Now they're running off to court in hopes of getting a ruling that will limit their liability to what is on the bottom of the ocean. I think the filing is completely frivolous,” Arnold said. A list of 102 lawsuits already filed against the company was filed with the court Thursday. Thankfully, there are some lawyers, anticipating TransOcean's move, that have filed parallel lawsuits — one naming TransOcean and the other against BP, Cameron International and Halliburton for their various roles in the building, maintenance or use of the rig.

I say “thankfully”, as corporations like TransOcean, BP and Halliburton must be held legally accountable for the harm they cause in situations like this (as well as in smaller, much less well-known examples of negligence.) Only when corporate defendants like TransOcean, BP and Halliburton are hit and hit hard with economic damages and judgments, will they alter their behavior and put safety before profits. Whether the negligence involved concerns product liability, worker/employee injuries, or construction site injuries and negligence, corporate greed must be punished, and severely, before corporate America will ever alter its ways.

Trust me, I’ve seen more examples of this in my legal career, than I care to. I assure you, it’s true.

In my previous post, I reported on the fact that Johnson & Johnson has been dragged into court by the United States Attorney in Boston, accused of hatching an elaborate scheme to press nursing home doctors to prescribe J&J’s anti-psychotic drugs, including Risperdal, to Massachusetts nursing home residents who were not suffering from mental illness or psychosis, but only dementia. Critically, it is widely known in the medical and geriatric care communities that the use of anti-psychotic medications in patients suffering from dementia, doubles the risk of death. The “marketing” scheme was a twisted effort by J&J to increase sales of their anti-psychosis drugs even higher than the $100 million in annual sales they were previously enjoying.

Antipsychotics were approved by the U.S. Food and Drug Administration (FDA) to treat people with severe mental illness – such as schizophrenia. While many of these medications have brought relief to severely mentally ill patients, and while they have their valid place in medical practice, in general they produce horrible side-effects. These unavoidable side effects include:

• Dystonia - A neurological movement disorder in which sustained muscle contractions cause twisting and repetitive movements or abnormal postures. Essentially, this condition can reduce someone to an involuntary mass of body spasms, or twist you into distorted postures.
• Parkinsonism – Muscle rigidity and muscle tremors; Essentially, this can reduce the body or parts of it, to being as stiff as a board.
• Akathisia - A syndrome characterized by unpleasant sensations of "inner" restlessness that manifests itself with an inability to sit still or remain motionless. This condition can produce symptoms ranging from anxiety, to a complete inability to still or stand still.
• Tardive dyskinesia, A condition in which the sufferer may show repetitive, involuntary, purposeless movements often of the lips, face, legs, or torso. These involuntary, purposeless movements usually occur in the face and lips, reducing someone’s expression to a mass of jerking tics.
• Pancreatitis – An extremely painful and emiserating condition, leaving one’s midsection enflamed, swollen, and producing severe fevers.
• Seizures – Causing patients to be constantly exposed to horrid and frightening neurological attacks, never knowing when the next one is to come – not to mention the brain damage that can result from seizures.
• Diabetes – Placing patients at risk of losing their limbs due to amputations often necessitated by the disease.
• Neuroleptic malignant syndrome, in which the body’s temperature regulation centers fail, resulting in a medical emergency, as the patient's temperature suddenly increases to dangerous levels. Essentially, the patient is subjected to sudden, high-grade fevers that are usually witnessed in the worst if influenza infections.

The list of these well-known side effects goes on and on. Now you know why it’s widely estimated that approximately two-thirds of mentally ill patients who are prescribed many anti-psychotics, stop taking them: They’re known as the “Treatment that’s worse than the disease.” And all of the above side-effects, and more, pale in comparison to the most widely-known side-effect of these drugs: That when given to patients suffering from dementia, they double the risk of premature death.

So how were J&J, and their criminal co-conspirator OmniCare, able to do this? Because as with many drugs approved by the FDA to treat specific illnesses and conditions, it is nonetheless legal for doctors to prescribe drugs, including anti-psychotics, “off-label” for other purposes. While that practice may be strictly legal when engaged in by individual doctors with individual patients, J&J engaged in a widespread, full-blown campaign to aggressively market their drugs to nursing homes as being appropriate, even desirable, for use with patients not suffering from mental illness, but merely dementia. Under J&J’s and OmniCare’s scheme, J&J quietly (and illegally) paid OmniCare millions in kickbacks to push these drugs to nursing home doctors. Once OmniCare sold these antipsychotics to nursing homes, it actually then filed for reimbursement from Medicaid for purchasing these drugs from J&J. Medicaid is the joint federal-state health care program for the poor – which pays for nursing home care for many poor seniors.

I trust you see the added hook here for OmniCare – not only did this scheme allow them to grossly increase their sales of these anti-psychotic drugs to nursing homes, but the fact that they were selling to nursing homes that cared for many poor elderly patients, allowed OmniCare to then bill Medicaid for the cost of buying these drugs from J&J in the first place, (who also paid OmniCare kickbacks for purchasing the drugs from them.) End result: J&J, the drug manufacturer, massively increased sales of their anti-psychotic drugs to their distributor, OmniCare (from $100 million to $280 million.) OmniCare received millions of dollars in kickbacks from J&J on the front end, for buying higher amounts of these drugs from J&J, and then OmniCare illegally billed Medicaid on the back end for reimbursement of the cost of purchasing the drugs from J&J, since the drugs were administered to low-income or indigent nursing home residents.

And the thousands of powerless Massachusetts nursing home residents who were needlessly pumped full of these mind-altering anti-psychotic drugs? There were less than nothing; an afterthought in this twisted scheme. As to just how many Massachusetts nursing home residents were victimized in the process of bloating both J&J and OmniCare’s profits, consider this: The Massachusetts Attorney General reported that a whopping 28 per cent of Massachusetts nursing home residents were given these anti-psychotic drugs, last year alone. Of that figure, 22 per cent were not mentally ill or did not have a medical condition that warranted such extreme treatment. This rate was the 12th highest in the nation.

Pretty sick, isn’t it? Yet nothing new for huge corporations like this.

This sad and sick story illustrates two key points: 1) Massachusetts nursing home abuse and neglect is rampant – far more common than most people can imagine – and it’s not always committed by a cruel or thoughtless health aide, acting alone. In this case, the abuse was actually aided and abetted by nursing home doctors who didn’t question either J&J’s or their distributor’s (OmniCare’s) claims about the use of these anti-psychotic drugs with patients who were not suffering from mental illness or psychosis. 2) This twisted story illustrates how Massachusetts and the rest of this country must remain vigilantly opposed to big business and corporate efforts to enact “tort reform”. As I’ve said before, “tort reform” is nothing more or less than an effort to re-write liability laws, to allow big business and others to commit wrongdoing, and be shielded from the lawsuits that would hold them accountable. Thankfully, we haven’t reached that stage yet in Massachusetts, which is one reason why nursing homes and their doctors will think twice about engaging in such irresponsible and unethical conduct in the future: Because they’ll pay in court if they don’t.

Continue reading "Massachusetts Nursing Home Kickback Scheme Lands Johnson & Johnson In Federal Court - PAa 2 of 2" »

This case is filed under “Nursing Home Abuse and Neglect” on this blog for a good reason: That’s exactly what it is – except that the abuse wasn’t committed by a lone employee of a single nursing home, who ended up abusing patients. It was committed by a conspiracy among a multi-billion dollar pharmaceutical firm, dozens of separate nursing homes, and doctors and nurses also. If true (and to date, I see little evidentiary reason not to believe the allegations) it is a sickening story of corporate and individual greed, compounded by some of the worst examples of human cruelty to the most frail and forgotten members of society – nursing home residents.

By all credible accounts, the story seems to have unfolded as follows: Pharmaceutical giant Johnson & Johnson apparently paid tens of millions of dollars to a firm called OmniCare, which although most people have never heard of, happens to be the nation’s largest provider of pharmaceutical drugs to nursing homes. The illicit payments were designed specifically to entice and assure that the company (OmniCare) aggressively and intensively pushed several of its drugs, particularly the powerful antipsychotic drug Risperdal, to nursing home doctors, using aggressive rebate programs and other financial incentives. The scheme is alleged to have lasted from 1999 to 2004. What’s the problem with that, one might ask – don’t some nursing homes need antipsychotic medications? Yes, but the twisted cruelty and malignancy here, is that Johnson & Johnson and OmniCare aggressively waged a campaign with nursing homes and their doctors to prescribe antipsychotics such as Risperdal, to patients suffering from dementia – not psychosis. J&J marketed their antipsychotics as a legitimate, valid medication to “sedate and control” patients suffering from dementia, when it was originally designed and approved to treat severe mental illness.

That twisted marketing campaign resulted in J&J nearly tripling sales of its antipsychotic drugs to OmniCare, from approximately $100 million just before the scheme began, to in excess of $280 million when the operation was discovered by government investigators in 2004. Imagine - - $100 million in sales (of these drugs alone) was not enough for J&J: They concocted this twisted scheme to fatten their profits even more, all the while risking the health and lives of tens of thousands of helpless nursing home patients. It is well- known in the medical profession that prescribing antipsychotics to patients suffering from dementia more than doubles their risk of death due to these medications. But that didn't phase J&J, nor OmniCare, in their insatiable quest for more profits.

Before anyone thinks that dementia and psychosis are similar, let me assure readers of this blog, as someone who is very familiar with nursing home practices and medical issues related to dementia, that dementia and psychosis are completely, totally different illnesses, and to deliberately try to lump them together and push these mind-altering drugs into a population that is least capable of defending themselves, and doubling their risk of death, is beyond sick. It is among the most disgusting stories of corporate greed I have encountered in my legal career. Yet, it is nothing new for corporate America: The crazed drive for greed and financial gain at any cost to human life and human dignity, controls so much of corporate America. It has, for so long. If anyone doubts this, think of these names: Ford Pinto, The Dalkon Shield, Philip Morris, W.R. Grace, Lehman Brothers, AIG, Goldman Sachs, the banking industry, the insurance industry, Toyota, on and on. It never seems to end. I’ll provide more details on this elaborate corporate scheme, in my next post.

Whether it’s Big Finance, Big Insurance, Big Tobacco or Big Pharma, overall, Big Business never seems to “get it” when it comes to acting ethically and obeying the laws they’re required to operate under in this country. This time the focus is on Big Pharma, though that’s nothing new.

Pfizer, Inc., that giant of the pharmaceutical industry, was found by a jury in U.S. District Court in Boston last week, with violating the federal Racketeer Influenced and Corrupt Organization Act (RICO,) a law designed to thwart and punish a variety of illegal activities dealing with financial transactions. Oddly enough, (or not so oddly,) RICO was first passed by the U.S. Congress in response to organized crime’s (read: The mob’s) activities in transferring and hiding financial transactions across state lines. Now, Pfizer’s been found to have violated the Act.

What was Pfizer up to? It seems that for the past ten years, Pfizer embarked on a targeted campaign to promote their epilepsy drug, Neurontin, for officially unapproved uses. Kaiser Foundation Health Plans, Inc., and Kaiser Foundation Hospitals, alleged that over the course of ten years, Pfizer consistently promoted Neurontin to it for unapproved uses, representing to its doctors that Neurontin could effectively treat a number of different medical conditions, including migraines and bipolar disorder. Neurontin was approved by the FDA in 1993 to treat epilepsy, and nothing more. According to Tom Sobol, a lawyer for Kaiser ,”The jury found that Pfizer engaged in a racketeering conspiracy over a ten-year period. That bodes well for future (similar) cases.” The jury deliberated for two days before finding Pfizer guilty of violating RICO. They determined the damages owed Kaiser to be $47 million, but under RICO, the damages are tripled. Hence, the total cost to Pfizer is $142 million. The federal trial was based in Boston, as U.S. District Court Judge Patti Saris is charged with overseeing a number of federal lawsuits from across the United States, targeting Pfizer with personal injury claims and allegations of fraudulent marketing of this drug. These injury claims would take the form of Product Liability suits, rather than Medical Malpractice.

When will Big Business get it? When will they cease their relentless quest for profits, no matter what the cost to society at large, or to themselves? Do they never learn from the shameless corporate fools that went before them? The terms “Ford Pinto”, “Asbestosis”, “Predatory Mortgages”, “Tobacco Cancer” and “Corporate Greed” all ring loudly. Does it not shame the leadership of this global company that they have been found guilty under a statute originally passed to police and defeat organized crime?

And remember, readers:: It’s these very kinds of companies and industries that want “tort reform” -- Big Business. They'd just love to shrink your legal rights and expand their profits. Don’t let them do it.

Following my previous posts on this subject, comprising Part One and Part Two, let’s now get to the legal decision rendered by a Massachusetts Superior Court judge in the suit filed by Nicholas Parsons and his parents against the Town of Tewksbury, Parsons, et. al, vs. Town of Tewksbury, et. al.., Middlesex Superior Court Civil Action No. 09-1595.

The plaintiffs here brought three claims before the court: 1) A negligence claim, in tort, against school officials and the Town, alleging that school officials knew or should have known that the harm that young Parsons suffered was likely to occur; 2) A claim, also in tort, known as “Intentional Infliction of Emotional Distress.” This claim alleges intentional conduct by a defendant which causes extreme emotional distress to a victim. In law school classes this particular tort is known as “The Tort of Outrage”, in that it seeks to hold someone civilly liable for emotional harm resulting from intentional acts that a reasonable person would find to be “outrageous”, or conduct that “shocks the conscience” of a reasonable person. 3) A constitutional claim, alleging that the inaction of school officials to protect the Parsons boy from obvious harm amounted to a violation of his due process rights (specifically, to safety and protection) under the Declarations of Rights contained within the Massachusetts Constitution.

As I said in my previous two posts on this case, an attorney’s view of this decision will depend almost entirely on whether that attorney practices as a plaintiffs’ or defense counsel. Everyone who knows me, knows that when it comes to the civil side of my practice, I am a plaintiffs’ lawyer. I represent people who have been injured and harmed as the result of someone else’s negligence. That being the case, I find this judge’s decision to be seriously lacking in legal reasoning on at least two of the three claims presented in this case. While the decision offers a small, and nascent, basis for optimism that school officials will in the future face greater liability for the safety of students in their charge, on the whole it is shocking in its ignorance of the outrageous acts of not one, but several school officials who failed to act to protect this boy from violent assailants – regardless of their ages.

Before I articulate my reasons for that position, the judge here, judge Kenneth Fishman of the Massachusetts Superior Court, did rule correctly as a matter of law on the plaintiffs’ claim that school officials knew or should have known that the harm that young Parsons suffered was likely to occur, and that they were negligent in failing to prevent that harm. The judge dismissed this count of the plaintiffs’ suit, and he did so correctly as a matter of statutory construction. The reason is that there is a fairly well-known statute (among lawyers, that is,) called the Massachusetts Tort Claims Act (“MTCA”,) which was created by the state Legislature to shield municipalities from being liable for many forms of ordinary negligence. This Act gives what is called “sovereign immunity” to cities and towns in Massachusetts, meaning they cannot be held liable for harm someone by suffered, unless it can be shown that the officials involved acted affirmatively (deliberately) to create the situation that caused the harm. (In this case, for example, the plaintiffs would have had to show that school officials actually asked or encouraged the bullies involved, to harm the victim. Not relevant.) The judge here correctly found that the MTCA and the sovereign immunity it provides, barred the plaintiffs any recovery on this first count.

However, as to the plaintiffs’ next two claims, the judge erred gravely, in my legal opinion. On the second of the plaintiffs’ counts, alleging intentional infliction of emotional distress, I cannot see how, under the facts present in this case, the judge could have dismissed this count. As I noted above, to recover on this count, a plaintiff must show that the defendants’ conduct was as matter of law, extreme and outrageous. How evidence showing that multiple school officials knew what was going on with the violence in this school directed at this boy - which resulted in his being beaten so badly that his leg was broken - and none of them did anything to prevent or stop it, does not constitute “extreme or outrageous” conduct, I do not understand. I say this as an attorney and legal analyst & commentator. The farthest this judge would go here, in characterizing this shocking negligence by teachers and school administrators alike was that the defendants “may have mishandled and underestimated the seriousness of the situation” brewing in this school. However, he found that, as a matter of law, school officials’ conduct was not “extreme or outrageous”.

Concerning the plaintiffs’ last count, their constitutional claim that young Parsons’ rights to due process (to protection and safety in school,) under the Declaration of Rights within the Massachusetts Constitution, were violated, he rejected this third and final claim, also.
Seeking legal authority to support his reasoning, the judge reached into federal law to borrow and apply a legal concept which says that, in order to recover on this constitutional count, Parsons would have to show that the school officials' conduct rose to a level extreme enough to “shock the conscience” – and that the actions of school officials here did not rise to a level extreme enough to "shock the conscience." That reasoning itself shocks my conscience.

• Multiple school officials knew this boy’s safety – possibly his life – were at risk – and did nothing.
• Parsons’ mother had personally appealed to school officials to do something to stop the escalating violence of these bullies and protect her son. They did little to nothing
• “Behavior Management Facilitator” Robert Ware knew of the escalating violence against this boy, even himself witnessing the boy being victimized, and did nothing.
• Parsons’ English teacher was told by students that the reason why Parson and Willett were absent her class, was because a fight had been scheduled between the youths in the boys’ bathroom – and did nothing.
• “Guidance Counselor" Adam Colantuoni knew of this planned fight – he was observed monitoring a boys' bathroom on the day of the fight, and yet neither he nor Robert Ware reportedly took any actions to prevent the fight.
• When Robert Ware arrived at the nurse's office, and found Parsons wounded with a broken leg and crying, his response (as recounted in the plaintiff’s complaint) was to swear at the young boy, telling him to "walk it off" and to follow him out of the nurse’s office. Thankfully, the nurse intervened, demanding that Parsons be placed in a wheelchair, summoning an ambulance immediately.

In the face of all the above, this judge found that the sum of this shocking conduct, was not “extreme or outrageous” enough to allow relief under Parsons’ constitutional claim. Note to Judge Fishman: It’s legal reasoning like this that makes people argue that judges be elected (a concept I don’t agree with, but decisions like this feed that idea.)

Notwithstanding the judge’s dismissal of this last (constitutional) count, after he rejected it in the instant case, he did state that, "as a general proposition, a cause of action can, in certain circumstances, be brought directly under the ... Declaration of Rights in the absence of a statutory vehicle for obtaining relief." It is here where some legal observers find hope that future cases like this might be decided differently. Recognizing that state or municipal officials could, “potentially.” violate the state constitution without engaging in affirmative threats or intimidation themselves - Fishman determined that such a constitutional claim was viable "as a general proposition." In my view, the judge largely waxed philosophic, but perhaps there is cause for some hope. Optimists are viewing this Superior Court ruling as a suggestion that public school officials might have a duty under the Massachusetts state constitution to protect students from bullying, thus potentially creating an avenue of liability that to date has been seen as legally impossible in the absence of a specific statutory remedy.

I suppose one could view this decision in that optimistic light – a nascent step in the slow process of allowing for liability in these school cases under the state constitution. Hopefully, it can be seen as some small measure of hope that students who are subjected to violence in school can indeed hold liable – and recover compensation from - the very school officials whose duty it is to safeguard them.

However, that won’t do much for Nicholas Parsons or his family now. My thoughts to them, and my admiration for trying.

P.S.: As of the date of this post, the anti-bullying bill under consideration by the Massachusetts Legislature, was, thankfully, passed with its original provisions of mandatory training for school staff and reporting of bullying incidents. This past Thursday morning, March 18, these key provisions had been removed by the House Ways and Means Committee, headed by Rep.Charlie Murphy, of Burlington. It appears that Murphy had temporarily buckled to a behind-the-scenes lobbying campaign by the Massachusetts Association of School Superintendents, and others, who (God forbid,) shuddered at the idea that they should be held to higher standards of professionalism and accountability in this area. Later that same day, these key provisions had been inserted back into the bill after Ways and Means Committee members and other House members gave Murphy an earful. Another important post-script: A great deal of the progress made in this important area of public policy is owed to a journalist who stood up publicly on several occasions, to raise awareness of this problem: Kevin Cullen, columnist with The Boston Globe. He deserves thanks from anyone and everyone who has felt the impact of this issue, from the parents of suicide victims Phoebe Prince and Carl Walker, to those who are unknown.

In my previous post on this subject (apologies that I haven’t followed it up earlier,) I discussed the ongoing tragedy of bullying in schools, and of how the most recent victim was a young girl in South Hadley by the name of Phoebe Prince, who committed suicide after repeated abuse by a group of girls at South Hadley High School. I also discussed how, up until perhaps now, there has been almost no statutory vehicle in Massachusetts to attach civil liability to school administrators or personnel – public or private – for injuries and harm done to children bullied at school. A recent Massachusetts Superior Court decision may – just may – have opened the door to legal changes much needed in this area of civil justice.

The case, Parsons, et. al., vs. Town of Tewksbury, et. al., involved a Tewksbury Middle School student and his parents who sued the Town of Tewksbury and school personnel for negligence, and other counts, in not intervening to protect this student from repeated bullying by other classmates at the school. The case reveals a shocking level of violence inflicted against the young student, and even more shocking negligence in the form of inaction by school personnel to intervene and protect this young boy from savage abuse at the hands of other students. The facts are truly horrific. I trust that my readers are familiar with the term “Dumbing Down”, to describe how people are in general nowhere near as well educated in this country as they were in decades past (and if anyone has any doubts about that, just watch one of Jay Leno’s famous “Jay Walking” pieces, where he asks average Americans questions about the most basic subjects, and 99% don’t have a clue as to the answers.) While stories like this case from Tewksbury must be told, I believe that in the process they can create a “Numbing Down” in people: The effect is that, horrific as a story like this is, it fails to provoke outrage or shock in people. The reason: Violence and indifference is so increasingly widespread in our culture. Too many people read of horrific stories like this, and just turn the page. I hope that won’t happen here. I wish to also say that, while some lawyers see hope in this decision, as a Boston injury attorney, I find this decision disappointingly weak. It’s my legal opinion that this judge should have found liability against the town and the school in this case (which he did not,) and that he should have issued much stronger language.

The case begins in April 2006 with young Nicholas Parsons, a student at Tewksbury’s Wynn Middle School, who was being repeatedly assaulted and battered by a group of other students at this school. Young Parsons reportedly had fallen out of friendship with a group of male students who made it a practice of harassing and threatening weaker students. Parsons told the school guidance counselor, Adam Colantuoni (who was also named as one of the defendants in the suit,) that these bullies had been harassing him repeatedly. The plaintiffs’ suit alleges that Colantuoni took little to no action to halt the assaults. Not long after Parsons had reported the problem to Colantuoni (the school’s “guidance counselor”,) the leader of the bullying group, a student by the name of Tyler Willette, ordered another student to slam Parsons' head with a book. Not only did this other student carry out this order, he did it in the presence of a teacher, who sent the attacking student to the school's "behavior management facilitator," a man by the name of Robert Ware (who was also a named defendant in this suit.) By all credible accounts, Ware neglected to discipline the assaulting student, instead merely ordering the boys to apologize to each other. In the event you’re wondering where this gets worse, read on.

When Parsons’ mother learned of this inaction by Robert Ware to in any way discipline the student who attacked her son, she called the school to complain. The result: Shockingly, the school took no action to discipline this student or take any other measures to stem this violent behavior. During the school’s April vacation break, Tyler Willette (the bullying leader, who originally ordered another student to hit Parsons in the head with a book,) reportedly tried to start two fistfights with Parsons near his home, and then tried to provoke an additional fight upon their return to school. Initially, Parsons declined to fight, but after another teacher (this time, a gym teacher,) failed to discipline Willette for violently charging Parsons in a gym class, Parsons decided he had no choice but to take corrective and defensive action on his own. Reluctantly, he agreed to face Willette in a ‘scheduled’ fight, in the hope that doing so would stop future harassment. News of the fight, set to take place on April 26 2006 inside a boys' bathroom, spread among the student body, as also did a threat by Willette, that he would break Parsons' leg with a karate strike. It gets worse: Even though both Robert Ware and Adam Colantuoni were observed monitoring a boys' bathroom on the day of the fight, (an activity that neither man typically engaged in, and which was evidence that both men knew this fight was going to take place,) neither man reportedly undertook any effort to intervene in the fight. If this inaction doesn't shock the conscience, it gets worse still: Both boys' English teacher, after learning from other students that the two boys were absent from class because of the fight taking place during that class period, did nothing to alert school administrators. At this point in this situation, that now numbered four (4) adult school administrators - all "trained professionals" receiving salaries and benefits - who did absolutely nothing to stop this escalating cycle of violence.

Yes, by all credible accounts, what you’re reading is all true.

In the boys’ bathroom, Willette attacked Parsons, shoving him, then kicking him in the legs with special katate moves as he had threatened to do, in the process fracturing Parsons' femur. Then, as Parsons lay on the floor with a broken leg, Willette punched him in the head twice. With Parsons crying out in pain, in a show of ‘mercy’, Willette and a friend then reportedly took Parsons to the school nurse. When Robert Ware (the school's "behavior management facilitator”, if you can believe that,) arrived at the nurse's office, Parsons, who had been crying, was unable to lift his swollen leg below the knee. Ware’s response (as recounted in the plaintiff’s complaint): He swore at young Parsons, telling him to "walk it off" and to follow him out of the nurse’s office. The nurse intervened, demanding that Ware be placed in a wheelchair, and she summoned an ambulance to transport Parsons immediately to the hospital.

Willette’s punishment for this aggravated assault and battery? Nothing but a brief suspension - a slap on the wrist. Robert Ware’s and Adam Colantuoni’s punishment for their shocking negligence and reckless indifference to this situation? Nothing of any consequence. They're still on the job, collecting their salaries. Nicholas Parsons? He suffered multiple surgeries and hospital stays as the result of his injuries, and suffered enormous emotional trauma. He'll carry those injuries the rest of his life.

Parsons and his parents subsequently sued the town, Ware and Colantuoni in Superior Court for negligence, intentional infliction of emotional distress and violations of the Massachusetts Declaration of Rights.

I’ll discuss the legal analysis and result that the court arrived at, and why I think it’s more of a disappointment than anything else, in my next post. In the meantime, let your anger and disgust over this story fuel you to put your school administrators – public and private – on notice that you’re not going to tolerate this reckless disregard for the safety of students, in your community. Otherwise, I have some news for you: It won't stop.

My readers of this blog know that I’ve previously written about the subject of bullying (a 3-Part post; after reading each post, click on "Next" to take you the Parts 2 and 3) in schools in Massachusetts – and of the tragic consequences that follow. The last time I wrote of this subject, had to do with the suicide death of Carl Joseph Walker-Hoover in the New Leadership Charter School in Springfield. Just a few weeks ago, the equally horrific story of Phoebe Prince was placed before a stunned public. Phoebe Prince was a beautiful young girl whose family recently emigrated from Ireland, to start a new life here. Except that new life was met with death – death at the hands of a sadistically cruel group of ‘mean girls’ from the school Prince attended, South Hadley High School. Those girls targeted the Prince girl because she was apparently the object of a male student’s attention. (It’s also been stated by more than one person at the school, that these girls targeted Prince because she was pretty.) The girls repeatedly bullied the Prince girl, taunting her physically as well as through mentally sadistic use of social media such as Facebook and MySpace, calling her a ‘slut’ and worse. The Prince girl’s parents approached the school’s administrators on more than one occasion, pleading with them to take strong steps to protect their daughter from these abusive classmates, only to see the mildest, most anemic of responses taken to protect this poor girl.

On January 14 2010, Phoebe Prince went home and hung herself in her closet. Her sister found her.

The shocked protests from parents throughout the town arose, their voices shocked and sickened. The South Hadley police promised a ‘full and complete’ investigation. The media both reported on – and editorialized on – the school’s failure to act aggressively to protect the girl. Legislators fumed about “doing something about this” in the state legislature. All the while, the South Hadely School Department engaged in two predictable – and pathetic – tactics: Demurral and denial. And the sadistic ‘mean girls’ who essentially murdered this innocent youth? Whose repeated assault and battery and mental torture drove her to take her own life? Legally, they may be untouchable. There may be nothing that can be done to prosecute them. These twisted, ugly girls (ugly in the deepest, most lasting sense,) were actually widely rumored to openly laugh at how they ‘snowed’ police investigators who earlier questioned them about their actions and Prince’s suicide. It' not yet clear that the Northwestern District Attorney’s office, might be able to prosecute these girls.

One might think that as a Norfolk county criminal defense lawyer, I’d want that freedom from prosecution in Massachusetts for school bullying, to stay this way. I don’t. While I would safeguard the right of any student accused of such a potential crime, to receive a full and vigorous legal defense, I very strongly believe that the law should criminalize bullying by students in schools. And I believe that the legislature must act, now, to create such a criminal statute. Massachusetts has enacted laws protecting people from assaultive and abusive conduct, which run the gamut from A to Z. Why have we not done the same to protect schoolchildren from the assault and battery, and mental abuse, that so many of them suffer?

It gets even worse. You see, not only is there no statute criminalizing this type of bullying in schools – laws that would enable prosecutors to bring charges against thugs like these girls – but there has largely existed no cases on point yet that would render schools or municipalities civilly liable for this type of negligence (negligence which I think should be legally categorized as wrongful death.) On the civil level, that changed – slightly – these past few weeks. And while advocates of stronger school protection laws over bullying were heartened, I wish that the decision had been a much stronger one.

I’ll discuss that case, the legal ruling, and what it means for the future of these kinds of cases, in my next post. Look for it, as the ongoing development of this area of law is critically important. To anyone who doubts that, remember the names Carl Joseph Walker-Hoover and Phoebe Prince. Aside from the internet, their names can be found on tombstones in two separate cemeteries.

It’s no secret among people who know me, that, as a Boston Massachusetts product liability lawyer, I’m one of the sharpest critics in the legal community of the pharmaceutical industry, and particularly, pharmaceutical advertising. Yes, I’m fully aware of the societal value that pharmaceutical companies can and do bring to bear, in addressing a number of diseases and medical conditions. And I believe that they are entitled to make a healthy profit in so doing. But what I’ve – and we’ve – all witnessed in the last 10 or 12 years, is the way that pharmaceutical companies pimp their products to the general public through television, radio, and print advertising. It is often obscene, and in my opinion ought to be legislated as illegal. However, there’s a sticky little thing called "commercial free speech”, which delves into an entirely separate subject of First Amendment issues, which I won’t distract my readers with right now. Not that it isn’t very important, but I’ll save that for another day.

Long gone are the days when pharmaceutical company sales reps solely called on – of all things – doctors’ offices - to sell their products. No, they got around that. Their thinking: “Why rely on doctors to write prescriptions for our products, when we can generate demand at the consumer level? Yeah, we’ll flood print and broadcast media with ominous-sounding ads showcasing all kinds of diseases and medical problems, and in the process, get millions of people to march into their doctors’ offices, and demand to be given prescriptions for our products.” This seemed like an even surer bet than taking doctors out to lunches and dinners, and hosting them with everything from golf outings to “professional seminars” at warm, sunny destinations. (Which they still do, but that practice has been gradually dropping, as regulators see more and more how incestuous and unethical a practice it obviously is.)

Take a little test: The next time you’re watching a TV show (ideally during prime time, (8:00-11:00 PM,) keep a pen and paper next to you. Write down the number of advertisements that you see about any kind of drug or health product. Ninety per cent of the time, it's a pitch from a pharmaceutical company, talking about the horrors of this or that medical condition, and urging you to “Ask your doctor about_______.” Do the same thing the next time you’re reading a newspaper or a magazine. Or listening to the radio (except when driving.) Chances are you’ll realize that the average viewer, reader or listener is inundated, constantly, by drug companies trying to get you to “Ask your doctor” about whether you “might have” some medical problem or condition, and whether their product “might help you.” Not only are ads in newspapers across the country regular fare, but full page ads. Any idea what a full page ad in an average major city daily newspaper goes for, say, Monday through Friday? About $10,000.00 – and more on weekends. Hawking everything from Aspirin to Zithromax, for every condition from high cholesterol to depression to heart disease to smoking, they never cease their constant drumbeat to “Ask your doctor about ______.”

Not quite the harmless commercial activity it’s claimed to be (at least by the pharmaceutical companies.) You see, in the mad frenzy to get drug companies’ products to market so they could hawk them in this way straight to the general public, science and sound practices took a back seat. “Clinical Studies” were skewed. “Scientific research” became less important than scientific fact, and profits became the driving force in research and development. It doesn’t take a genius to see what flows from all this.

One glaring example of this is what happened with a diabetes drug manufactured, and quite forcefully marketed, by GlaxoSmithKline. The drug, Avandia, has become well-known for causing serious injuries in persons taking the drug. About 13,000 former Avandia users in the United States have suffered heart attacks and other serious injuries while using Avandia, and many of these users have filed suit against GlaxoSmithKline in state and federal courts. Product liability lawyers across the United States have known for years that this drug was dangerously defective and posed an extremely elevated risk of harm to those who used it. Now, a Harvard University study has shown that Avandia creates more than double the risk of heart attack in users, compared with other diabetes drugs. The study is slated for publication soon by the American Diabetes Association.

GlaxoSmithKline’s own study of Avandia, conducted with i3 Drug Safety, an independent drug safety firm, found that Avandia users have a 35 percent to 41 percent increased risk of heart attack over users of Actos, Avandia’s main competitor. The Harvard study analyzed clinical data from the medical records of 26,375 patients at several Boston area hospitals and clinics associated with Harvard Medical School. All the records reviewed involved a diagnosis of diabetes and the use of at least one oral diabetic medication used between 2000 and 2006. The researchers then scoured the records to find all patients who suffered “myocardial infarction” or heart attack. The incidence of heart attack was more than double for Avandia compared with its main competitor, Actos.

A company spokeswoman was unavailable for comment Wednesday. No surprise there. The 13,000 people who have filed suits against GlaxoSmithKline, are distributed across the United States, and the suits are filed in both federal and state courts. In California alone, almost 3,000 suits have been filed in state Superior Court. All of the suits accuse GlaxoSmithKline of falling to warn patients about the increased risk of heart attack, strokes and heart failure, and of aggressively marketing Avandia in the face of clear evidence of this elevated risk. On the federal court level, thousands of cases have been consolidated, initially into three bellwether test cases. Medical negligence is one thing. Negligence by definition involves an unintentional act. But from all indications in the Avandia case, GlaxoSmithKline intentionally hid damaging clinical information from the public, all in the name of higher sales and fatter profits. Nothing new there.

When will corporate America wake up and realize that the viral corporate greed that has previously infected so many companies, whether automobile manufacturers, tobacco companies, or toy manufacturers, doesn’t pay? When will they break out of their frenzied drive for more sales and profit at any cost, and place the interests of their customers first? When does this all end? The best and, in the real world – only answer to these questions is “When they get hit so hard in court, that none of them will ever think of it again." That’s why the tort system in this country is so critical. The day the average citizen loses his right to hold corporate America accountable for its misdeeds, is the day we will all suffer a loss that can not be replaced. Remember that the next time that some pro-business type tells you that "tort reform" is a good idea.