Lawsuit Information Center

July 27, 2015

What is a Wrongful Death Claim? | Learning About Lawsuits

Wrongful death? Survival action? What’s the difference?

Whether it stems from medical malpractice or an auto accident, negligence can unfortunately result in death. In most personal injury lawsuits, the plaintiff filing the lawsuit is the one that suffered some sort of physical injury. They are suing because they desire compensation for the injuries they sustained, and the costs associated with those injuries.

When the plaintiff dies, although they have sustained harm from another’s negligence, they are obviously not around to sue that party. A wrongful death claim allows those who were affected by that person’s death to sue the person responsible. However, there are two separate types of claims involving deaths: Wrongful Death Claims and Survival Actions.

July 27, 2015

What Is A Motion? | Learning About Lawsuits

by Ronald V. Miller, Jr.

If you are a plaintiff in a lawsuit, you are asking the court to do something for you. In most personal injury cases, you are asking the court to award damages in your favor, typically by way of the jury. Throughout the lawsuit, there will be other “lesser” things that you will ask the court to do. For example, perhaps you want the court to exclude certain evidence, protect certain information in discovery, or even dispose of the case without ever having to set foot in a courtroom. Considering that courts are formalized tribunals, you cannot just make a call or send them a letter. This is where a motion comes into play.

July 20, 2015

Difference Between Jurisdiction and Venue

by Ronald V. Miller, Jr.

Jurisdiction and venue often arise in the context of “forum shopping” when filing lawsuit.

Unquestionably, it is better to file a lawsuit in some places compared to others and good lawyering requires careful consideration of venue and jurisdiction and the distinction between the two.

In many jurisdictions, like Maryland and Virginia, one or two places tend to be the preferred stop for plaintiffs’ lawyers for personal injury lawsuits.

To better understand “forum shopping,” you have to understand the concept of a “forum” in the first place, which requires an understanding of the difference between personal jurisdiction and venue. Before we distinguish jurisdiction from venue, let’s talk about them both.

What Is Jurisdiction?

Personal jurisdiction is an incredibly important piece of the puzzle when putting together a lawsuit. It boils down to is a court’s ability to exercise its power over an entity, whether that is a person, business, trust, etc.

For example, say you are a Maryland resident, it would feel unfair if an Oklahoma court could render a judgment over you if you have no connections to that state. That is where the doctrine of jurisdiction comes into play: it is all about the court’s ability to bring you under its power.

July 20, 2015

What Are Special Damages? | Learning About Lawsuits

by Ronald V. Miller, Jr.

The American civil justice system allows for one type of recovery in personal injury cases: damages. Damages, or compensation, can manifest themselves in a few different forms in personal injury cases. People tend to throw around terms such as “general damages,” “special damages,” “non-economic,” and “economic” damages, so this post should help you differentiate between these various types of damage awards.

What Are Special Damages?

What is so special about special damages? Well, not much other than the fact that they can be readily quantified. Whenever a car accident or other type of personal injury accident occurs, the injured person will incur expenses associated with the accident. These are hard numbers that can be measured.

July 13, 2015

What is Discovery? | Learning About Lawsuits

by Ronald V. Miller, Jr.

Discovery is the most important part of civil litigation (apart from the trial.) Discovery also tends to be the most expensive part of civil litigation. This is often a long and exhaustive process that entails most of the legwork in litigation. At the end of the day, though, discovery is really only about one thing: getting information from the other side to use at trial.

Discovery: An Overview

When one party sues another, they have to (or at least should) have information that supports their claim. Granted, they do not need to prove their case in the complaint. But going in they should already have enough information to know that their claim has a basis in both law and fact. Once the complaint is filed, they can fine tune the information that they have and supplement it using discovery. Discovery should be thought of less as one amorphous thing and more so as the combined efforts of various discovery devices. More on that later.

One of the reasons discovery can get expensive is because its scope unbelievably wide (although it is getting more narrow of late). Parties can utilize the discovery process to find any piece of information that is reasonably calculated to lead to the discovery of admissible evidence. And just because the information sought is not admissible in and of itself, it is still discoverable on the chance that it might to lead to something that is. Information obtained during discovery will also be public record if it makes its way into the court file, so there is also a potential that a person or corporation may have to put personal or sensitive information out there. There are, of course, ways to shield this from happening, but a party will have to show a judge that the information should be protected before any information will be shielded. The discovery process also does not go on forever. A judge will set out a schedule, during which discovery can be obtained. If information is discovered after the final date, then it cannot be utilized at trial.

June 25, 2015

Changes to the Federal Rules | Discovery Implications

by Ronald V. Miller, Jr.

Big changes are coming to the Federal Rules of Civil Procedure. A few of these changes make some pretty significant amendments to language in the discovery rules. Depending on how they are applied and interpreted, there is real potential for a reduction in the amount of information that can be discovered, which would reduce the cost of litigation across the board.

The Changes

Here’s a quick breakdown of the changes that were approved by the Supreme Court in April:

Getting rid of the language in Rule 26 that allows for discovery of information “that may lead to the discovery of admissible evidence.”
Relying on a balancing test to limit the scope of discovery.
Making fee-shifting a bigger deal when handling protective orders.
Will amendments to the FRCP change the landscape of discovery in federal courts?
Requiring objections to requests for production to state if documents are actually being withheld as a result of the objection.
Making changes to how electronically stored information (ESI) is preserved and destroyed.
Getting rid of the appendix of forms.
Reducing the time to serve a summons after filing a complaint by 30 days.
Reducing the time for a court to enter a scheduling order by 30 days.

What This Means For Discovery

Changes in discovery rules is a big deal. We have been all playing under the old rules for a long time now. This is a big change. Discovery is ALWAYS a battlefield in civil litigation. We are all looking for some angle to advance our case in a way that increases (plaintiffs, the good guys) the value of the case.

June 24, 2015

MDL Requested in Power Morcellator Cases

by Ronald V. Miller, Jr.

Around 22 complaints involving power morcellators are pending in 16 different U.S. federal courts around the country. Plaintiffs are now requesting a federal judge to centralize proceedings for Multidistrict Litigation (MDL). [2017 update: there was at Ethicon power morcellator. It has already been dissolved. The cases that settled in the MDL had high dollar amounts. But there were only 42 cases.] I touched on the issues surrounding power morcellators on more than one occasion, but let’s talk about where these cases are and where they are going.

Power Morcellator Lawsuits

Power Morcellator Litigation Heating Up

Power morcellators are surgical devices that are used to cut portions of the uterus into small fragments so they can be easily extracted through a patient’s stomach. Morcellators are utilized in laparoscopic hysterectomies where patients want to avoid traditional surgical scarring. Although morcellators are a great way of avoiding just that, the nature of the device and procedure often means that fragments of tissue are left behind after a procedure. Doctors and patients really didn’t worry about this too much because they were under the impression that the risks associated with leaving trace amounts of tissue behind were low.

Starting in 2006, however, pathologists informed a manufacturer of power morcellators, Johnson & Johnson, that their use has the potential to cause cancerous cells in the uterus to spread. Typically, these cells would have been contained in the uterus, but using a morcellator could break up cancerous fibroids in the uterus, increasing the risk of cancer spreading throughout the body. Granted, it’s not like every patient who undergoes a hysterectomy is faced with this risk. Current estimates suggest that about 1 in 350 patients who undergo this procedure have cancer cells contained within the uterus. So the incidence of cancer may be low, but considering that around a half-million patients have undergone a laparoscopic hysterectomy, around 1,500 patients were wantonly exposed to the risk of cancer.

June 17, 2015

Was Pfizer Was Warned About Zoloft Defects?

by Ronald V. Miller, Jr.

An interesting new piece of evidence recently came to light at a trial against Pfizer in Philadelphia. Internal memos suggest that Pfizer actually believed that Zoloft caused birth defects in pregnant women for years, perhaps providing the smoking gun that was missing in previous Zoloft cases.

The News

A jury in Philadelphia, PA is currently listening to evidence in a trial against Pfizer brought by the family of an 8-year-old girl, who was born with heart defects. The family’s suit alleged that Pfizer failed to adequately warn women that their antidepressant, Zoloft, might lead to birth defects. The 8-year-old girl in this case was born with congenital defects and malformations in her heart, which were allegedly caused by exposure to the drug Zoloft. In their lawsuit, the family specifically notes that the girl was born with a hole in her heart and has experienced several cardiac episodes over the years.

As part of their case, the plaintiff’s family identified internal reports by Francesca Kolitsopoulous, who is the associate director of Pfizer’s Worldwide Strategy epidemiology group. According to the evidence presented at trial, she specifically warned Pfizer executives about studies showing a link between Zoloft and heart defects.

The report suggests that she even recommended that the drug’s label be modified to warn users of this new information. Kolitsopoulous pinpointed a link between the drug and septal heart defects. This nugget of information is incredibly relevant to this case, given that it is the exact type of injury suffered by the plaintiff.

June 17, 2015

HeartWare VAS Recall: Defects Could Cause Serious Injury

by Ronald V. Miller, Jr.

Nearly 2,000 HeartWare Ventricular Assist Systems (VAS) are being recalled because of potentially faulty power supply connectors. The defect could lead to serious injury or death in the event that power failure causes the entire system to stop working.

The Recall

The FDA issued a Class I recall for certain VAS devices after receiving numerous reports of malfunctions. Luckily, most of the failures did not result in any damage, but there was at least one serious injury reported due to a power failure. A “Class I” recall means that the FDA thinks that there is a “reasonable probability” that the continued use of the product will lead to serious health consequences or even death. Obviously, this is a recall to take very seriously should you use VAS. Mechanically, the main issue is that power connector ports tend to wear down over time. Should they become worn down enough, the power supply would lose its connection to the system, effectively rendering the VAS useless. Patients have reported that the power supply connectors have become twisted or bent, which prevents them from connecting the device control unit to the VAS itself. You know how when you’re vacuuming and you round a corner too quickly, ripping the cord out of the wall and bending up the power cord prongs? That’s what is going on here. The stakes are just a little higher.

June 4, 2015

No Bifurcation in Androgel Lawsuits, Trials to Proceed

by Ronald V. Miller, Jr.

AbbVie, manufacturer of the drug Androgel, recently asked a federal judge overseeing litigation against them to bifurcate expert discovery and summary judgment in pretrial proceedings. After rejecting the request, the judge then outlined a schedule for bellwether trials to move forward.

AbbVie’s Request

Low T Cases Moving Forward

In the ongoing MDL involving Androgel and other “low T” treatment drugs, AbbVie recently asked Judge Matthew Kennelly to amend the schedule for choosing bellwether cases for trial, specifically noting that they wished to bifurcate expert discovery and summary judgment. Summary judgment would have involved causation and other relevant issues. Judge Kennelly decided that doing so would not be fair and reasonable to both parties, although he extended the general process for choosing bellwether cases. AbbVie is probably pretty happy about this extension considering that they tried to slow down the bellwether trial process before.

While a previous case management order suggested that cases should start going to trial in 2016, Judge Kennelly is now requiring the parties to submit a proposal for the selection process by August 10, 2015. Cases will be divvied up into two categories: 1) blood clot cases involving thromboembolism or deep vein thrombosis and 2) heart attack cases. If all goes to plan, a final bellwether selection should be made by the end of August.