Category: Alerts

Veterans’ Opioid Lawsuits Could Be Among Strongest in Litigation

By Emily Cox
veterans opioid lawsuits
Flickr/Beverly

Opioid litigation insiders are already projecting that veterans’ opioid lawsuits will have a lot of traction when individual cases begin transferring into the newly established multidistrict litigation (MDL).

The Judicial Panel on Multidistrict Litigation (JPML) centralized all local government opioid lawsuits Dec. 5 before Judge Dan Polster in the Northern District of Ohio. So far, all 155 cases are from government entities. However, the panel acknowledged that far more cases from a wide variety of plaintiffs and defendants will probably come forward in the future to join the litigation. It is likely that Judge Polster will establish different tracks within the MDL to separate different claims and parties. Individuals coming forward to take opioid manufacturers and distributors to task for profiting from addiction will undoubtedly be one of these tracks. And, veterans’ opioid lawsuits could be among the strongest among these cases. The predatory practices of the manufacturers who egregiously exploited veteran vulnerabilities for financial gain coupled with negligence from the VA irrefutably put veterans at significantly higher risk for opioid addiction than the general population.

Veterans’ Opioid Lawsuits

Recently, the VA has come under fire for its role in fueling the veteran opioid epidemic that is killing our soldiers after they come home from action. Newsweek reports that the VA recklessly overprescribed opiates for more than a decade. By 2011, veterans were twice as likely to die from an accidental opioid overdose as their civilian counterparts. To address the issue, the VA began frantically instituting mandatory opiate cutoffs for veterans with chronic pain. This initiative has also faced scrutiny for being a potentially unsafe approach, and vets are still dying from overdoses. In October, parties reached a $2.3 million settlement for an opioid overdosing at a VA medical center that resulted in the death of a former Marine. The VA has been the primary target in veterans’ opioid lawsuits so far. But, it’s only part of the story behind the veteran opioid crisis.

Pharmaceutical Companies’ Role in Veterans’ Opioid Lawsuits

Purdue Pharma played a key role in spreading opiate use among veterans. The OxyContin manufacturer gave $200,000 to the VA pain management team to essentially create propaganda. Their efforts resulted in the initial VA – Department of Defense guideline material that concluded opiates “rarely” cause addiction. Purdue’s 2001 marketing budget plan also praised that “additional corporate initiatives and partnering efforts were very successful Veterans Administration.”  The plan also praised other major health organizations for promoting the fraudulent “Pain: The 5th Vital Sign” campaign. However, targeting the VA was not a novel initiative on Purdue’s part.

In October, the City of Paterson filed a lawsuit against some of the country’s largest drug companies. Paterson lists Purdue Pharma, Teva Pharmaceuticals, Johnson & Johnson, Janssen Pharmaceuticals, Endo Pharmaceuticals, and Insys Therapeutics as defendants. The claim alleges that these opioid manufacturers targeted veterans with chronic pain due to their specific susceptibility to opiate dependency.

Pharmaceutical Companies Preyed on Veterans’ Underlying Issues

Sixty percent of veterans who fought in the Middle East and 50 percent of older veterans have chronic pain. Veterans with chronic pain have much higher rates of compounding conditions like post-traumatic stress and traumatic pain injury. These conditions contribute significantly to pain-management challenges. Furthermore, their pain is generally connected to traumatic events. This trauma can affect one’s ability to cope with physical discomfort and manage pain. If the trauma is not well-managed, then chemical dependency can become an issue.

“The opioids help ameliorate that anxiety,” Dr. Peter Abaci, the medical director of Bay Area Pain and Wellness Center in Los Gatos, Calif., and author of Conquer Your Chronic Pain: A Life-Changing Drug-Free Approach for Relief, Recovery, and Restoration said. “It takes over everything – the decision making and how they feel – and they latch onto that. It’s the only thing to calm them down, and they can potentially develop addiction from there.”

Consequently, it’s imperative to treat also these underlying conditions before addiction can take hold. However, VA medical centers often don’t have the resources to bring in counselors, psychologists, dieticians, physical therapists, and other professionals to supplement patients’ treatment protocol. Pharmaceutical companies were more than happy to exploit this, swooping in with a solution that saved the VA tons of time and money, while endangering millions of those injured while defending our country. Opioid manufacturers knew that there was a tendency towards chemical dependency if veterans’ underlying issues remained untreated while taking these highly addictive pain medications. And, these reprehensible companies squeezed every dollar they could out of it. Now, exploited veterans will get a chance to squeeze back. After all these heroes have sacrificed, they deserved far better and hopefully they’ll get it.

 

 

 

 

 

 

 

Opioid Lawsuits Receive Centralization in Northern Ohio

By Emily Cox
Opioid lawsuits
Flickr/Cindy Shebley

As the opioid crisis continues to ravage the country, the Judicial Panel on Multidistrict Litigation (JPML) has elected to centralize the corresponding torrent of opioid lawsuits filed by various local governments.

Five days after the panel heard arguments on consolidation in St. Louis, the JPML reached its decision Tuesday. The panel has centralized the landmark litigation before Judge Dan Polster in the Northern District of Ohio. The transfer order effects 155 cases from 25 different courts.

The panel indicated that, although individual issues may still arise, they don’t negate the efficiency inherent to centralization at this early stage. Furthermore, the opioid lawsuits all implicate questions of common fact that these pharmaceutical companies engaged in substantially harmful marketing practices and widespread diversion. The panel acknowledged that far more suits with a wide variety of plaintiffs and defendants were likely to come forward. Consequently, the JPML suggested Judge Polster should consider establishing different tracks within the multidistrict litigation (MDL) to separate out different claims and parties.

“All of the actions can be expected to implicate common fact questions as to the allegedly improper marketing and widespread diversion of prescription opiates into states, counties and cities across the nation, and discovery likely will be voluminous,” the panel said. “In our opinion, centralization will substantially reduce the risk of duplicative discovery, minimize the possibility of inconsistent pretrial obligations, and prevent conflicting rulings on pretrial motions.”

The JPML chose the MDL’s venue in part due to Ohio’s substantial number of opioid-related overdoses and the state’s expenditures of massive sums to deal with the crisis. Furthermore, the district is geographically central and relatively close to defendants’ headquarters. Also, Polster’s previous MDL experience in managing several hundred cases over gadolinium contrast dyes further recommended his court going forward with the opioid lawsuits.

Opioid Lawsuits

The MDL’s lawsuits assert that opioid manufacturers grossly overstated the drugs’ benefits while downplaying their substantial risks to essentially saturate the entire country with their highly addictive pain pills. Some government entities are also pointing the finger at distributors. They claim distributors cashed in on Big Pharma’s depraved marketing scheme by consciously failing to report, or even monitor, suspicious drug orders.

Many believe that the opioid crisis litigation mirrors the tobacco lawsuits of the 1990s. Just like Big Tobacco, Big Pharma allegedly began pushing fraudulent research to show their products were not addictive to massively expand market share. Others are also criticizing the federal government’s inaction to address a problem that could take down the U.S. as a major world power. Addict care and law enforcement efforts come down primarily on local governments and taxpayers. So, it’s finally come to the point of the quintessential straw that breaks the camel’s back. Resources to address the crisis are being stretched to the max. Consequently, lawsuits will have to take up the slack to bring these drug companies to heel.

“If I’m right, that this was a massive fraud, we should not be the ones who are bearing [the cost],” a leading opioid attorney said.

“It ought to be Big Pharma.”

Consequently, he was reluctant to escribe “epidemic” to the opioid problem as the situation was purposefully devised by the pharmaceutical industry to create it.

These are “large companies pouring large amounts of money to lie to people,” he continued. However, he remains optimistic that an opioid MDL may lead the way to a brighter tomorrow.

“It is an incredible thing to witness,” he said. “Everybody is collaborating to come together to find a solution.”

Overdoses Behind the Opioid Lawsuits

In 2016, more than 60,000 Americans lost their lives to drug overdoses. Also, from 2013 to 2016, there was a five-fold increase in prescription painkiller drug deaths. In 2013, the death toll was 3,105. By 2016, prescription pain pill killer deaths had skyrocketed to 20,101 people in the U.S. That’s more than the total casualties from 9/11, and the Iraq and Afghanistan wars combined. …And, it’s turned into an annual thing. The Centers for Disease Control Prevention reports that 145 Americans are dying daily from opioid overdoses.

While you can’t put a price on human lives, the Medical Care Journal did in October 2016. Its study put the economic cost of opioid abuse, dependency, and overdose at $78.5 billion. Most of these costs are on the shoulders of taxpayers and local government entities. Furthermore, the Council of Economic Advisers released a report this month. They indicate that the total toll of the opioid crisis cost the American economy $504 billion in 2015. This is equivalent to 2.8 percent of gross domestic product for that year.

Disputes in the Opioid Lawsuits MDL

While most parties involved in the litigation pushed for centralization, there were some disagreements on the venue. Approximately 40 claims requested various courts across the nation. Meanwhile, 46 of the lawsuits argued that the MDL should be in either the Southern District of Ohio or the Southern District of Illinois.

The bulk of defendants also sought consolidation. The three major opioid distributors facing lawsuits, AmerisourceBergen Corp., McKesson Corp., and Cardinal Health, sought centralization in the Southern District of West Virginia. Meanwhile, several of the manufacturers were looking toward the Northern District of Illinois or the Southern District of New York.

Phizer Inc. argued that the panel should be exclude it altogether from any MDL. The Big Pharma giant based its reasoning on the fact that it has beat all five of the government suits it has faced. However, since the company has no pending cases, the panel didn’t address its concerns.

About 15 additional plaintiffs argued against consolidation or just that their suits be left out of the MDL. Among these was the city of Chicago. In 2014, Chicago was the first to sue over opioids.  Counsel for Chicago expressed concerns that it would have to revisit “painfully negotiated” issues. At the least, the city requested that it could complete document discovery before sending a case into the MDL. But, the JPML has denied this request.

Everett, Washington also opposed centralization. The city sued drug makers earlier this year. Counsel for the city said that the crisis was too dangerous to test the limits of the MDL construct.

“This is not a case to test these waters,” he said during oral arguments. “People are dying every day.”

 

 

Century Fox Reaches Landmark $90M Investor Settlement

By Emily Cox
Century Fox
Flickr/Logoprof

According to an agreement filed Monday in Delaware state court, Twenty-First Century Fox Inc. reached a $90 million deal to settle derivative claims from investors over a series of sexual harassment incidents at Fox News. The settlement also requires the media outlet to create an advisory council to improve workplace culture.

The agreement requires third-party insurers of Fox News Chairman Robert Murdoch, the estate of former CEO Roger Ailes, and Twenty-First Century Fox board members to pay $90 million back to the company. Furthermore, shareholders claim board members failed to acknowledge a culture of rampant sexual harassment at Fox News.

Fox reached the deal as reports of sexual misconduct in the entertainment industry continue to skyrocket. The lead plaintiff is Michigan-based City of Monroe Employees’ Retirement System. The entity engaged in more than a year of discovery before Fox struck the settlement. The plaintiff’s lawyer is hailing the settlement as a historic step in addressing sexual harassment, discrimination, and retaliation in the workplace.

“For far too long, corporate leaders failed to act against harassing conduct in their midst by treating it as isolated incidents,” the attorney said in a statement. “The events giving rise to this case and the stream of reported misconduct by powerful individuals in the media industry and beyond show that corporate boards have an obligation to implement policies and structures that will protect current and future employees from the widespread improper abuse of the past.”

In addition to monetary provisions, the agreement will require the implementation of the Fox News Workplace Professionalism and Inclusion Council. The council will provide the company with top-tier guidance on inclusion, diversity, and how to better its workplace environment.

Century Fox Sexual Harassment Allegations

Fox News sexual harassment stories began to leak last July when TV host Gretchen Carlson sued Ailes in New Jersey state court. According to her complaint, Carlson was fired for speaking up and defending herself against Ailes’ inappropriate, sexually harassing comments. In response, Twenty-First Century Fox fired Ailes and agreed to settle Carlson’s lawsuit for $20 million. Ailes died in May.

According to court documents, Ailes had also targeted other women at Fox. These included Megyn Kelly and Rudi Bakhtiar. Furthermore, former host Andrea Tantaros filed a claim against Fox News and several network leaders while Carlson’s suit was ongoing.

Six months after Fox News ousted Ailes, Bill O’Reilly struck a massive sexual harassment settlement. The popular host agreed to pay $32 million to Lis Wiehl, a longtime network analyst to settle sexual harassment allegations. These included allegations of continual harassment, a nonconsensual sexual relationship, and sending gay pornography and other sexually explicit material to Wiehl. Furthermore, this was at least the sixth, and largest, agreement O’Reilly or Fox have made to settle harassment allegations against him. In the midst of these continual lawsuits, Fox granted O’Reilly a four-year contract extension for $25 million a year. The network only finally ousted the host when some of the settlements and allegations became public. After leading advertisers began to boycott his show, Fox forced the controversial host out to protect the company.

Century Fox Derivative Action Claim

In conjunction with the settlement, a derivative action was filed Monday against Ailes, Murdoch, his son and CEO James Murdoch, his son and Executive Chairman Lachlan Murdoch, and other members of the Century Fox board. Claims include breaches of fiduciary duty against Murdoch and directors. There is also an unjust enrichment claim against Ailes’ estate.

Shareholder court documents indicate that the City of Monroe system served a demand for books and records to Century Fox mere weeks after Carlson filed her complaint.

“The public revelations of the toxic culture since July 2016 have led not only to numerous sexual harassment settlements and racial discrimination lawsuits, but to departures of talent and damage to good will,” the complaint says. “This, in turn, has caused damage to the Company’s reputation and good will, as well as significant financial harm.”

The shareholders claim that breaches in fiduciary duty caused at least $200 million in harm. This includes $47 million for Ailes’ severance pay, $25 million for O’Reilly’s, and more than $55 million to settle sexual harassment and racial discrimination claims against Fox News. Court documents indicate that the company has also paid an estimated $20 million in litigation costs.

“Fox News has a sustained and systematic history of sexual harassment by its executives and talent,” the complaint says. “Had the Board exercised even minimal oversight, they would have been aware of this history, given the negative publicity around many of these lawsuits, and given the sheer number and in some cases substantial sizes of the settlements relative to the salaries of the plaintiffs.”

Century Fox Workplace Professionalism Council

The investor settlement emphasized the implementation of the new Workplace Professionalism and Inclusion Council. The council will report to the Century Fox board. It will have the power to oversee and recommend policies and procedures. This includes the hiring of outside consultants and conducting independent investigations.

Top human resources executives at Fox will staff the council along with four independent members. Former U.S. District Judge Barbara S. Jones used to serve in the Southern District of New York and is now a law firm partner. Sylvia Ann Hewlett is the founder and CEO of the Center for Talent Innovation and founder of Hewlett Consulting Partners. Virgil L. Smith is chairman of the consulting group Smith Edwards Group. He also spent a combined 44 years at Gannett Co. and McClatchy Newspapers. Finally, Brande Stellings is a leading expert on women’s leadership and diversity. She also used to serve as the vice president of litigation at NBC Universal.

“The Workplace Council gives our management team access to a brain trust of experts with deep and diverse experiences in workplace issues,” Jack Abernethy said. Abernathy is the co-president of Fox News Channel. “We look forward to benefiting from their collective guidance.”

 

 

Forced Arbitration Bill Prioritizes Banks Over Consumers

By Emily Cox
Forced arbitration
Flickr/Mike Mozart

Recently, American consumers lost the right to hold massive financial institutions like Wells Fargo and Equifax accountable. Vice President Mike Pence and 50 U.S. senators signed the disgraceful forced arbitration bill in the dead of night this past month, killing essential Consumer Financial Protection Bureau (CFPB) regulations. President Trump quickly signed the bill into law, wiping out the CFPB rule that protected Americans’ constitutional rights to take financial giants to task in court when they break the law.

The bill restores forced arbitration. This allows big banks to use the fine print in customer agreements to force consumers into a rigged arbitration process. Banks designed and controlled this system to avoid taking responsibility for illegal acts. Forced arbitration also allows banks to hide scandals and avoid public accountability. Senators are well aware that giving these massive financial entities the power to strip consumers of their rights is inherently wrong. So, they waited until well after 10pm when the public wasn’t looking to make their move. Furthermore, the Senate does not seem to fully grasp the reality of forced arbitration, and U.S. consumers, seniors, and service members will pay the price.

The Realities of Forced Arbitration

The bill allows large institutions to defraud overseas service members, abuse seniors in nursing homes, and sexually harass women at work with little to no provisions for these individuals to seek recourse for these violations. The bill forces these individuals to go it alone behind closed doors in secretive arbitration processes.

After deducting attorney fees and court costs, 6.8 million consumers recover $440 million from class actions against these entities each year. On average, only 16 consumers receive cash relief from arbitration each year. Big banks know that if consumers can’t band together, very few will be able to hold them accountable in court alone due to time and money constraints.

Proponents of the bill claim they are protecting small banks and credit unions. However, 97 percent of credit unions don’t use arbitration clauses. And, a mere eight percent of smaller banks use these provisions. Credit unions even told lawmakers that there was “very minimal usage, if any.”  However, these admissions did not stop senators from using these claims as a prop for the bill.

Opposition to Forced Arbitration

Some of the Senate is claiming that the CFPB rule they annihilated would force consumers into court. However, the rule only restored Americans’ ability to join other consumers to hold Wall Street accountable or go to arbitration. Suggesting that the rule forces individual to bring civil claims in court against their will is absurd.

More than 370 respected organizations want the rule upheld. These include the American Legion, the Military Coalition, AFL-CIO, NAACP, and AARP. These organizations insist the Senate does not have facts or logic to support its decision. They are questioning why Wall Street deserves more protection than seniors, service members, and consumers.  Why are special favors for Wall Street more important than our constitutional rights? Also, the bill only strips consumer protections. Banks still retain the right to sue their customers. Consequently, many Americans are questioning the types of behavior Mike Pence and half the Senate are protecting.

Equifax tried to force 145.5 data breach victims into the rigged arbitration system. Wells Fargo also did it after being caught opening millions of fraudulent accounts in its customers’ names. The financial institution also operated an extensive scam to slap customers with illegitimate overdraft fees. Consequently, voters across all parties line strongly support upholding the CFPB rule. Unfortunately, the federal government isn’t listening. Now, thousands of constituents may not be able to fight back against stolen identities, unauthorized credit cards, and mysterious bank charges. The Senate and President Trump are going to have to answer for it. And, simply demonizing lawyers is not going to cut it.

Hurricane Harvey Lawsuits Continue to Flood Courts

By Emily Cox
Hurricane Harvey
Flickr/Lt. Zachary West

In the two months since Hurricane Harvey thrashed the Houston area, more than 1,000 people have sued the federal government after the Army Corps of Engineers opened the floodgates of massive reservoirs, sacrificing West Houston’s Energy Corridor to the torrential flood waters to avoid catastrophic reservoir failure.

According to federal and state court dockets, about 80 federal and two state lawsuits are currently pending against the federal government. The lawsuits represent 1,001 homeowners and businesses damaged by the decision to release massive reservoirs directly into one of Houston’s richest neighborhoods in the middle of the night. Eleven of the lawsuits are seeing class-action status. Lawyers expect that thousands more plaintiffs could eventually join the legal fight. Damages also could reach more than $10 billion in what promises to be one of the most complex and expensive federal government litigations ever. However, many of the Energy Corridor’s approximately 9,500 residents are still weighing their options as they continue to sort through the wreckage. In fact, two months after the storm, dealing with the area’s utter destruction continues to fill most residents’ days.

Hurricane Harvey Vs. Katrina

Some residents continue to hold out hope that the Texas government will create a relief fund to recover their losses. Many are comparing the lawsuits to the long-running litigation over New Orleans’ levee failures during Hurricane Katrina. Consequently, a legislative resolution could be preferable to a drawn-out legal battle. But, there are some key differences in the two litigations.

In New Orleans, minorities from economically disadvantaged communities suffered the majority of the financial losses and thousands of deaths. West Houston victims are privileged white Republican energy executives. The main employers in the Energy Corridor are BP and Shell. The rest of the city makes a third of area’s median income. Second homes and pleasure sports cars are the norm. The massive debris piles include wine fridges, Chinese bar carts, and coffee table books on abstract art. Many of the residents evacuated the area in their own boats.

Another key difference in the West Houston litigation is that the legal argument is not about infrastructure failure from official neglect. The Hurricane Harvey lawsuits deal with the consequences of the federal government intentionally flooding one of the wealthiest parts of the Houston to save the rest of the city. Furthermore, the government didn’t even give residents a chance to properly evacuate. Instead, officials released the reservoirs in a late-night panic when rainfall exceeded expectations.

Hurricane Harvey Reservoir Release

One of the biggest complaints from West Houston residents is that the government didn’t given them a chance to save anything in its bid to save the city. Hurricane Harvey hit the Houston area the weekend of August 26. That Sunday night, the Harris County Flood Control District held a press conference. The agency indicated that water behind the Addicks and Barker dams surrounding West Houston was rising more than six inches an hour.

Consequently, the Flood District indicated that Energy Corridor residents should prepare to leave the next morning when the U.S. Army Corps of Engineers would begin controlled releases of the massive reservoirs. However, residents claim that the area was largely uninformed of the imminent releases or their anticipated impact. Regardless, that evening, water levels behind the dams rose faster than the government agency expected, prompting the government to take earlier and more drastic actions.

The Army Corps won’t confirm when the releases began. But, legal complaints and residents indicate the floodgates opened around 1 a.m. at twice the rate the government agency said it would release the reservoirs. As a result, 8,000 cubic feet of putrid water per second came cascading into the affluent neighborhood while many residents were sleeping. A West Houston resident described a muddy wave blasting open his back French doors in the dead of night. The Corps would not issue a press release on the expedited and accelerated reservoir release until after 1:30 a.m.

By Monday morning, Energy Corridor and Memorial homes that had never experienced any flooding were rapidly filling with water. The Flood Control District didn’t release a statement for area residents until 10:45pm that night to warn of increasing flooding.

Aftermath of Hurricane Harvey Dam Releases

By Tuesday, the Corps were releasing water at a rate of 13,000 cubic feet per second. This is more than three times the rate the government entity told residents it would release the water. Houston Mayor Sylvester Turner would not issue any evacuation orders for three more days. However, as water filled homes up to residents’ waists, then chests and necks, evacuation became the only option for many.

Medians became impromptu boat launches with fathers using bass-fishing boats and air mattresses to lead rescues as the government did nothing. However, some residents returned to recover possessions and save pets. One man died after being electrocuted while trying to save his sister’s cat. On Friday, September 1, as water continued to gush through the floodgates, Mayor Turner finally issued a voluntary evacuation order. He indicated that conditions would not improve for at least 10 to 15 days.

The district’s city council member, Greg Travis, also stepped in to assist residents save their things. He managed to call in five high-water vehicles for a patrol. Residents who had left were given 30 minutes to retrieve what they could from their homes.

On Saturday, Mayor Turner made the Energy Corridor evacuation mandatory as three hundred people had remained in their flooded homes. He also cut off electricity to the area and established a midnight to 5 a.m. curfew to address looting issues. The next day the Corps finally started slowing the rate of the water flooding into the area.

During the two weeks following the reservoir release, two elderly residents who were unable to escape would be found dead, and the stinking, hazardous waters continued to refuse to recede as people watched all their positions consumed by it.

Hurricane Harvey Lawsuits

The Fifth Amendment explicitly forbids the government from seizing citizens’ property without financial restitution. Case law provides that if the government doesn’t go through eminent domain proceeding before “taking” property for public good, the owner can claim “inverse condemnation,” arguing that payment is due because of unfairly taken, damaged, or destroyed property.

Before 2012, the government avoided taking legal responsibility for temporary flooding decisions. But, in 2012, the Supreme Court created a multifactor test to establish government liability in these cases. Justice Ruth Ginsburg wrote the majority opinion. The Justice held that the government needs to compensate property owners for a taking if it has compromised a “reasonable, investment-back expectation.”

For example, if it was reasonable to expect that a home wouldn’t flood and a court finds the government responsible, then the government must provide compensation. None of these homes had ever flooded. And, the Corps caused the only flooding from Hurricane Harvey after the storm. Consequently, many believe that West Houstonians absolutely qualify for massive takings claims. State Senator Joan Huffman, who is also a former judge, weighed in recently on the lawsuits.

“I’m not here to point my finger at the Corps, to say you should have done it or shouldn’t have done it. But they did it, and that act resulted in a taking,” Huffman said. For a local flooding attorney, the law is also pretty clear.

“When I look at the case law, and I look at what happened here…if this isn’t a takings case, then what is?” the lawyer asked.

However, other experts point out that the Corps’ decision raises issues of how the takings clause applies when the government has nothing but bad options. Regardless, the plaintiffs will need to prove that their homes wouldn’t have flooded if the Corps never released the reservoirs.

 

Happy Veterans Day from Arentz Law Group

Veterans Day 2017

This Veterans Day please remember the service of our veterans and our obligations to them and their families who have sacrificed so much so that we can live free.

Good Riddance to House Judiciary Chairman Goodlatte

By Emily Cox
Goodlatte
Flickr/Gage Skidmore

The notorious class action and mass tort adversary Virginia Republican Rep. Bob Goodlatte’s time terrorizing US plaintiff attorneys is coming to an end. The chairman of the House Judiciary Committee announced on Thursday that he won’t be running for re-election. Consequently, Goodlatte will be leaving the House at the end of his term next year.

Goodlatte has spent most of his time with the Judiciary Committee frantically cranking out bills to make it harder for consumers to hold businesses accountable. He is probably most famous for his ironically titled “Fairness in Class Action Litigation Act.” H.R. 985 would obliterate the vast majority of class action lawsuits. It rolls back protections for pretty much anyone harmed in any way by corporations that break the law. Among other things, the lawsuits it would essentially exterminate include cases against Big Pharma for horrific injuries caused by dangerous medications and devices. Also, cases against Ponzi schemes could also be a thing of the past, leaving investors with little to no recourse to recover their money from corporate criminals like Bernie Madoff.

Goodlatte Quest to Quash Class Actions and Mass Torts

The legislation was among a handful of bills that Goodlatte rushed through the House Judiciary Committee in February and March, ramming the legislation through in the dead of night and voting down all amendments solely along party lines to escape public notice or debate. He even refused to hold a hearing on the bill. Despite opposition by nearly every major civil rights organization, the bill passed the full House during National Consumer Protection Week in early March. But, the Senate has been sitting on the bill for the past eight months.

In the meantime, Goodlatte has set his sights on lawyer advertising and marketing for personal injury claims. He claims he’s working on behalf of consumers. However, this is ultimately another thinly veiled attempt to further his ultimate goal of obliterating corporate accountability to consumers. He’s bound and determined to set significant limits on how lawyers obtain clients. However, the Supreme Court ruled in 1977’s Bates vs. State Bar that the First Amendment protects the right for lawyers to advertise for personal injury clients. Protecting attorneys’ freedom of speech aside. This advertising is the only way many are even aware of their rights to seek recourse for their injuries.

Without lawyer ads, Justice Harry Blackmun wrote in the majority opinion, “the not-quite-poor and the unknowledgeable” might not know their legal rights. “Although advertising might increase the use of the judicial machinery, we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action,” Blackmun wrote.

Goodlatte claims his crusade is to protect the public. However, it looks like it is only an attempt to keep injured individuals uninformed that they have a right to take immoral corporations to task for egregious harm.

Goodlatte Legacy

Without Goodlatte’s manic obsession with protecting corporate interests guiding the House Judiciary Committee, hopefully justice for ordinary people will prevail. However, as long as H.R. 985 remains alive, so does his legacy.

The American Association for Justice has established a movement to help individuals take a stand against class action restriction. Consequently, Take Justice Back has numerous websites to help people act against this unconstitutional legislation.

 

Opioid Kickbacks Scheme Uncovered by Justice Department

By Emily Cox
opioid kickbacks
ccPixs.com

According to U.S. Department of Justice, a Rhode Island doctor pled guilty to an opioid kickbacks scheme Wednesday. He admitted to healthcare fraud and conspiring to receive kickbacks in exchange for prescribing an opioid fentanyl spray to patients who didn’t have cancer pain.

Dr. Jerrold Rosenberg, 53, indicated that he participated in the opioid kickback scheme between 2012 and 2015. Allegedly, opioid manufacturer Insys Therapeutics paid Rosenberg a total of about $188,000 to prescribe the company’s Subsys fentanyl product. Furthermore, he wrote a great deal of these prescriptions to patients without cancer.  Insys provided the illegal kickbacks under the guise of sham speaking engagements. The Justice Department said that Medicare at least partially reimbursed the cost of the drug in many cases.

“Patients trusted Dr. Rosenberg to make medical decisions based on the best available treatment, not based on speaker fees, kickbacks, and other financial incentives,” the Rhode Island Attorney General said.

“He violated the law and his oath as a physician to do no harm when he placed greed over patient care, thinking little of the long-term consequences of patients taking this extremely powerful, highly addictive opioid.”

Opioid Kickbacks Scheme Indictment

The Justice Department charged Rosenberg with 13 counts of health care fraud, one count of conspiracy to pay and receive kickbacks, and five counts of receiving opioid kickbacks. In his plea, he admitted to one count of health care fraud and one count of conspiracy to receive opioid kickbacks. However, his decision to negligently prescribe Subsys wasn’t entirely for personal gain. His son was an Insys sales representative from 2012 -2013. His son also made commissions off his father’s inappropriate prescriptions.

The FDA approved Subsys in 2012 to treat breakthrough cancer pain for patients. But, this indication is only for patients already receiving and tolerant of opioid therapy for ongoing cancer pain. However, Rosenberg blatantly misrepresented that patients were suffering from cancer pain when they weren’t in order to secure insurance approvals for prescriptions.

The court has sent Rosenberg’s sentencing for January 16, 2018. He could face as many as 15 years in prison and fines up to $500,000. However, Rosenberg has already agreed to pay $754,736 in restitution.

As the opioid crisis continues to embroil the nation, one has to consider how much of it was bought and paid for by pharmaceutical companies. Furthermore, how many of our doctors were bought and paid off in the process?

 

 

Glyphosate Exposure Is Skyrocketing in America

But federal regulators are still failing to take acknowledge significant risks that have already caused the European Parliament to ban glyphosate.

By Emily Cox
Glyphosate Exposure
Flickr/Chafer Machinery

A new study indicates that glyphosate exposure is higher than ever. But, as Monsanto continues to saturate the market with crop seed that is genetically modified for glyphosate use, regulatory authorities continue to make little effort to track its health effects even in the face of mounting lawsuits asserting the popular herbicide causes cancer.

The medical journal JAMA published the glyphosate exposure study today. Researchers indicate that human glyphosate exposure has increased almost 600%  in the past decade. Given the prevalence of the herbicide on the worldwide market and serious allegations of its toxicity, one of the most surprising findings is that it’s essentially the only one of its kind. Studies have evaluated how much glyphosate is in our food, air, and water. However, this is one of the only studies that has looked into how much of this chemical is making its way into our bodies. Given its widespread use, the study merely confirms what many scientists have feared for the past decade.

“This study demonstrates something many scientists have been worried about,” says Michael Hansen, Ph.D., senior scientist at Consumer’s Union. “As use of the chemical grows, more of it is getting into our bodies.”

The Rise of Glyphosate Exposure

Glyphosate is the active ingredient in the popular weed killer Roundup. Beyond lawns, gardens, and golf courses, it’s used on a wide range of crops. In fact, Roundup helped Monsanto corner the global seed market with its genetically modified Roundup ready crops, launching GMOs into mainstream commerce. These crops include maize, cereals, legumes, sunflower, potatoes, and cotton.

As its use has grown, so have concerns over potential risks from glyphosate exposure. In 2015, the World Health Organization classified glyphosate as a probable carcinogen. Earlier this year, California mandated cancer warning labels for products containing the chemical after the pending Roundup cancer litigation released Monsanto internal documents that indicate the agrochemical giant knew that glyphosate exposure may cause cancer. And, now the European Parliament has voted in favor of totally banning glyphosate by 2022.

However, despite all of this, U.S. federal regulators are shockingly silent on glyphosate. In fact, the EPA continues to insist that glyphosate is safe. And, in 2013, the agency actually increased allowable levels so that twice as much of the herbicide can be used on certain crops. Furthermore, somehow, the Department of Agriculture’s pesticide program still does not monitor glyphosate. Likewise, the Centers for Disease Control and Prevention’s program on human exposure to environmental chemicals does not factor glyphosate exposure.

“It’s a huge gap in our safety net,” Hansen says.

U.S. Glyphosate Exposure Findings Reflect Regulatory Indifference

Monsanto’s domination of America’s food chain through lobbying, insidious legal tactics, and its genetically modified seeds, manufactured solely for the purpose of increasing glyphosate’s market share, has come at a price. And, if worldwide cancer concerns are legitimate, then the price may be too high.

California researchers in the Rancho Bernado study measured the urine concentrations of glyphosate of 100 elderly people living in the large southern California suburb. They collected samples between 1993 and 1996, and then again between 2013 and 2016.

Researchers found a staggering increase in overall glyphosate exposure levels that exceeded detection limits. Originally, only 12 of the samples had detectable levels of glyphosate. By the 2010’s, 70 not only had detectable levels. They had thirteenfold the concentration of these levels compared to the 1990’s. Also, the body’s release of metabolite chemicals required to process the chemical increased by more than 300 percent. Researchers expressed concerns over their findings and indicated that the chemical has made its way into the regular dietary intake of many Americans.

“We’re being exposed to more and more of this chemical,” says Paul J. Mills, Ph.D., a professor at the UC San Diego School of Medicine and the study’s lead author.

“Most people don’t even realize that they are consuming it through their diet.”

Mills and his fellow researchers are planning several follow-up studies to assess health outcomes and glyphosate exposure in different parts of the country.

Glyphosate Exposure Risks Are Still Largely Unknown

In 2016, Environmental Health published a report that looked at glyphosate exposure in human and animal studies. Researchers found a link between glyphosate exposure and numerous health problems. These included liver and kidney damage, non-Hodgkin’s lymphoma, and endocrine disruption. However, very few human studies exist on glyphosate exposure. So, researchers had to rely on mostly animal studies.

Consequently, there’s no way to truly assess how much glyphosate is potentially harmful to humans.

“The safety limits we have right now are complete guesses,” says Bruce Blumberg, a scientist at the University of California at Irvine who has studied glyphosate.

Given recent developments that indicate that Monsanto had its hand in glyphosate studies that the EPA used to determine the chemical’s safety, it might be about time that the U.S. took a page from the European Parliament’s playbook and revisited glyphosate’s safety.

Opioid Investigation Probes Massive Painkiller Shipments

By Emily Cox
Opioid Investigation
Flickr/Me

Lawmakers in the ongoing opioid investigation into West Virginia’s ruinous epidemic are turning up the heat on an Ohio wholesaler over its shockingly large pain killer shipments to the drug-ravaged state.

Amid allegations that Miami-Luken shipped inordinate amounts of powerful painkillers to West Virginia’s southern counties and failed to report “suspicious” local pharmacy orders, a congressional committee investigating the state’s opioid crisis is looking for answers and documents from the prescription drug distributor.

On Monday, the US House Committee on Energy and Commerce requested Miami-Luken to turn over West Virginia pharmacy drug shipment records. Specifically, the panel asked for files regarding the company’s painkiller shipments to four south West Virginia drugstores. These include Westside Pharmacy in Oceana, Beckley’s Colony Drug, Tug Valley Pharmacy in Williamson, and Kermit’s former Sav-Rite Pharmacy.

Kermit is a small town in Mingo County on the Kentucky border with less than 400 residents. However, Miami-Luken sold more than $3 million a year of opioids to the Kermit pharmacy for six consecutive years.  During this period, the company distributed 14.7 million doses of hydrocodone throughout Mingo County. The county has a population of only 27,000. This is an average of 90 doses per year for every adult and child in the county.

“As we have continued our investigation, it became increasingly clear that we needed to extend our oversight into Miami-Luken, a significant opioid distributor that we know has been active with West Virginia’s pharmacies,” said committee Chairman Greg Walden, Rep – OR, and committee Ranking Member Frank Pallone Jr., D – NJ, in a joint statement. “West Virginia is among the hardest hit states by this epidemic, and it’s critical we get to the bottom of how such large quantities of opioids were readily available in such small towns.”

The DEA’s Miami-Luken Opioid Investigation

The congressional committee’s opioid investigation is also requesting copies of the company’s written protocol for identifying suspicious orders. The lawmakers also wish to see suspicious order reports filed with the DEA. As part of an ongoing separate federal opioid investigation, the DEA cited Miami-Luken’s inordinately large drug shipments in a “show-cause” order. The order indicates that company higher-ups failed to take action even when employees flagged suspicious sales. According to the order, a sales representative reported to superiors that Tug Valley Pharmacy’s prescription painkiller sales were unusually “high” in 2008. The sales rep noted that the pharmacy also filled nearby pain clinic prescriptions. However, superiors at the company never investigation the legitimacy of these prescriptions.

In 2009, Miami-Luken went on to ship 258,000 doses of hydrocodone to Tug Valley Pharmacy in just one month. This is more than 10 times what typical rural West Virginia pharmacies receive each month.

Bankruptcy records indicate that Miami-Luken was also major supplier for Sav-Rite Pharmacy. According to the DEA, Miami-Luken “failed to maintain effective controls against diversion” of hydrocodone between 2008 and 2011. The small Mingo County pharmacy purchased 10.8 million doses of the painkiller during this time.

The DEA has also called Miami-Luken’s shipments to Colony Drug in Raleigh County into question. For example, the company shipped 16,400 doses of oxycodone to the Beckley pharmacy in March 2008. This shipment jumped 227 percent to 37,200 doses the very next month. The prescription distributor never investigated this substantial increase. Meanwhile, Wyoming County’s Westside Pharmacy can legally only receive 6,000 monthly doses of oxycodone. Miami-Luken’s shipments exceeded this limit every month from September 2008 to December 2015. But the company only ever reported one suspicious order from the pharmacy.

Opioid Investigation Probes Suspect Terminations

The committee also requested personnel records of those the company terminated over prescription drug compliance issues. The committee is particularly interested in employees who lost their position once the DEA began its investigation. This includes former CEO, Anthony Rattini. In the face of the DEA inquiry, Miami-Luken stripped Rattini of his duties to report suspicious opioid orders. In fact, court records indicate that the company’s board Chairman Joseph Mastandrea intends to testify the he relieved Rattini of these duties “as DEA inquiries increased.” The congressional committee wants documents detailing this removal and the specific reasons behind it.

West Virginia has the highest drug overdose rate in the nation. However, Miami-Luken also distributes to Ohio, Indiana, Kentucky, western Pennsylvania, and southern Michigan. Maybe not so coincidentally, these are the regions hit hardest by the opioid epidemic, according to the Centers for Disease Control.

“These are the areas where the [opioid-related] death rate is so high that some of the funeral homes have to have refrigerator trucks to store bodies in waiting for funerals,” committee leader Tim Murphy, R – PA said.

As the opioid investigation continues, Miami-Luken is fighting the DEA’s efforts to revoke its license so that it can continue distributing “medicine” into the very heart of darkness.

 

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