JOEL BIEBER'S BLOG

     As I began down that lonely road of blog creativity, I wasn't sure which road to take. The Robert Frost poem was ringing in my ear. I know that some of my blogs have not been up to the level of winning any 2008 Webbies. ( Does such an award really exist?).

     Recall and legal notices are filling my in box. For instance, Nestle recalls 900,000 lbs of Lean Cuisine. Like the little boy said to Shoeless Joe Jackson, "Say it ain't so". (Nestle story). I also saw that a Sheik spent 350k on a mind mapping and motivational guru to help Michael Jackson get his creative mind juices flowing again. (Jackson) That made me think, who is there for me to get this legal blog flowing today. Then I thought, would it be interesting to blog on how business lobbyists are adapting to the power shift in Washington and what that means to upcoming legislation? (AP article) To that question I could almost hear my mind shouting out loud.

     After this mental rambling, I decided to string together a couple of legal stories that you can click to, if one of them does interest you. First, The National Law Journal reports that legislators are working on bills that will overturn the recent Supreme Court decision in Riegel v. Medtronic, which gave immunity to a product manufacturer under an interpretation that Congress granted immunity when such products are approved by the FDA. Senators Kennedy and Waxman filed Amicus briefs that state that Congress did not intend to "pre-empt state tort actions". Second, Lawyers USA did a story that sets forth that FDA staffers objected to the Bush policies that were being pushed that put the FDA in the position of arguing Federal Preemption, for individuals injured by drugs sold by Big Pharma. This was an interesting read. Finally, to finish the blog out in continuing rambling fashion. In an unprecedented action, The Washington Post   reports that the FDA is opening up three offices in China to improve the safety of Chinese exports to the US. In a time that the FDA is admittedly understaffed, I hope that they can do some good in this area, despite those issues. 

Legal Smorgasborg

     I saw a story that equates legal appeals to something that sounds like the seven degrees of Bacon. (you probably should google that, if you don't know what that means, just like the title of this blog). According to Law.com, former Supreme Court Justice Sandra Day O'Connor is going to be sitting with the 3rd Circuit Appellate panel as a visiting Judge, and is scheduled to hear four oral arguments in Philadelphia, this week. The "Bacon" factor is that the first lawyer to argue,Mark Perry, clerked for Justice O'Connor, during the 93-94 term. Joining Perry on the legal brief was Eugene Scalia, the son of Supreme Court Justice Anthony Scalia.

     Here is a head scratcher. Dolan Media Publications sent me a publication entitled "20 Things Lawyers Need To Know". In it, there is an article that discusses what law firms need to know about young lawyers that they may be hiring, called the Generation Y aka the Millennials. In the article, it states that as an employer, I must understand that these young lawyers may present such characteristics as a higher expectation for time off; weaker proofreading skills; lower standards for written work; less loyalty to their firms; more emphasis on privacy of their phone use; and higher expectations for quality of life. Wouldn't it be great if you could just go to some website like flightstats.com, where you can find out if a plane regularly runs late. Maybe we could call it Millennial.com. Uh oh, that one is already taken so I guess I cannot post scouting reports on lawyers arriving late to work. That article was quite an endorsement for hiring new law graduates.  

     Finally, I am on a email blast that notifies me of product recalls. One that is a little unusual but worth noting is that Worldwise, Inc. has recalled about 223,000 dog leashes. According to the notice, the metal clasp connecting the leash to collar can snap back unexpectedly. Worldwise has received injury reports that include facial cuts, collar bone injury, a displaced eye lens and a broken tooth. These leashes were sold in such places as Dollar General Store. For more information, go to their website at squareonesystems.com. 

Ibuprofen and Heart Attacks

     Heart attack and those being treated for heart ailments have a higher risk of a second heart attack or death, if they take such painkillers that include ibuprofen or are Pfizer's Celebrex. This, according to a recently published Danish study and reported by Bloomberg news. (article)

     According to the study, there was also a connection to the withdrawn drug that was manufactured by Merck, Vioxx. According to the senior cardiology resident at Copenhagen University Hospital,"The take-home message is that we need to be careful when using NSAIDS among patients with previous heart attack or heart failure".

     A study presented in March, according to the Bloomberg article, found that patients taking the highest dose of Celebrex at 400 milligrams twice per day, were found to have tripled their chance of a heart attack or stroke, compared to those taking a placebo.  Currently, Celebrex, unlike Vioxx, remains on the market and generated $2.3 billion in 2007 sales for Pfizer. 

A Lion of a Problem

     Usually I am attaching a story that has caught my attention. However, there is an ongoing story in Midlothian that just makes me shake my head. You can probably guess by the blog title, it involves a lion. It also involves no responsibility.

     There is a lion who is roaming the yards and neighborhoods of Midlothian. One neighbor saw it sprinting across her back yard. Another neighbor went out back and saw it sleeping in a tree. Now, this is a lion that reportedly weighs about 300lbs.

     It is speculated that the lion is or was owned by someone who has several animals. It is known that there are some homes that have such animals as camels and an assortment of monkeys. This, because places around Salisbury and Midlothian have various zoning laws that allow wild animals. Now, no one is claiming that they have lost their lion. In fact, when the lion is sighted, calls have been placed to the Virginia Game and Fishery Department and they merely respond that capturing lions is not their job. So, the lion continues to roam and fortunately, no event has occurred except the excitement of seeing a lion up in the tree. That's the clue that may indicate that the lion is domesticated. However, no one will take responsibility for the ownership or the capture.

     In my business, I regularly send settlement packages to insurance companies, in an attempt to settle car crash cases. The packages include the documentation of medical reports and records, as well as pictures of the scene or the cars and any other relevant evidence, regarding the facts of the injury and the crash. Sometimes, I feel like I am saying that there is a lion in the tree and you need to do something about it, insurance company. Their response can be as frustrating as, "it's not our job or not related to the crash". That is why we fight hard to preserve the jury system. That is the equalizer that was created by our founding fathers, to point to the responsible party. It's great when a jury tells an insurance company, through its verdict, that it is time that they pick up the lion!  

   

A President McKinley Life Intersection

     Sometimes in the morning, while putting in my time on the exercise machine, I watch History Detectives on PBS. They typically have two or three episodes that discuss some artifact and its connection to a historical event. It makes my exercise go a little quicker, although not quick enough.

     This morning, one of the episodes involved an investigation regarding the flag that was draped over the coffin of President McKinley. He had been assassinated, and as history records, that was the event that caused Secret Service to begin providing security for our Presidents. I am attaching information on this episode for your review.(PBS episode)  

     The episode revolved around whether a flag that had been passed down by a Charles Kennedy, was, in fact, one that had draped over the McKinley coffin. That part of the story and the course of investigation were very interesting. However, almost as an underlying story, the course of events that impacted Charles Kennedy was also life changing.

     Apparently, Mr Kennedy was a sergeant at the time, who was ordered to head up the detail that went to Ohio, to preliminarily guard the body at the tomb that housed the casket, until the burial area memorial was set up. As a result, Sergeant Kennedy ended up moving to Ohio right after that. Then, when he got out of the service, he went to work as the administrator and keeper of that cemetery. He ultimately was buried in sight of the final resting place and memorial of the President. It was clear that his life ended up revolving around that moment when he was ordered to Ohio, with the McKinley detail.

     There are files sitting on my desk right now as a result of a moment in time that have impacted my clients. That moment is usually a crash that has caused a life long injury or some emotional scar from the negligence of someone else. In my own life, having been in a crash, I sometimes intuitively feel as though a car is going to run a red light. This reaction, simply because of my memory from my own crash. 

     We cannot control those moments. We can only control how those moments effect us. Some clients are able to fully recover and seemingly put it behind them. Lurking in the background is probably some emotional scar from the crash. Other clients have life long problems and permanent injuries. When these cases settle, sometimes true value is not received because there is not enough insurance coverage. At some jury trials, I try to remind the jury that while they will leave this case behind when they leave the Courtroom, my client will be left with what the jury deems to be Justice.

     A moment in time can effect a lifetime.  If we truly thought about how a moment can change life, it may make us be more thankful for what we have and more considerate of the opportunities that God has given us. For me, that History Detective episode was that reminder. 

A Wonderful Love Story

     I am attaching a wonderful story that ran in the Richmond Times Dispatch on Saturday.(TD Story) Vernon Schooles had previously stated that he did not want to live one day longer than his wife. On Thursday, after having been married for 76 years, Virginia and Vernon Schooles both passed away on the same day. The story speaks to the sanctity of marriage, the strength of love and the wonders of the heart. I am posting it as a blog, because I so enjoyed this story and I hope you will too. Based on the story, they had a wonderful relationship, that was centered around Godly things. Now, they are in heaven together.  

Post Election Quickies

     Just what you need. Yes, this is a blog on the election. Actually, I have had my fill of the election. I feel like I went up to the buffet at the Golden Corral just one too many times. In fact, I am thankful that I will not have to see any more political commercials. At least, until the next election cycle. I guess in reallity, this is just my rambling blog on how thankful I feel that the election is over.

     When I came to work today, my email inbox was filled with messages on the election. Some were bemoaning the results. Others were telling me how excited they were. In looking at the lay of the land, I guess you could find something to be thankful for if you are a minority party member and, of course, if you support the majority party, then you were celebrating the Presidency.

     Shortly, I am about to participate in a lawyer conference call to discuss how the election will impact lawyer issues in the coming legislature. I suppose there will be a discussion of possible bills to be introduced and Judicial appointments that will be made. At the end, I expect that there will be one more call to request donations. Kinda like the minister would always say in church,"where two or three are gathered together, take up an offering".

     One lawyer put it succinctly that perhaps the election will be favorable to lawyers financially, but that we will have to pay more taxes on our earnings. As the Bible says,"unto whom much is given, much is required". It will be interesting to see whether campaign promises will be a reality. In watching the returns last night, on one station, they were somber and low key. On another, I fully expected the "commentators" to actually be wearing victory hats.

      For many of us, time will only tell what the result of the election will mean. I expect, though, that Big Business today is a little worried. They provide lip service to allowing the free enterprise system to work. On the other hand, over the last eight years, they have spent inordinate amounts of money in lobbying and not trusting the free enterprise system. Then, when things have not worked out, they immediately turned to the government and begged for a bailout. For the moment, we can all stop and be thankful that we do not have to listen to any more campaign promises for a while. That really seemed worth blogging about!

More Federal Preemption Discussion

     The American Association of Justice, formerly the American Trial Lawyers Association, sent around an email which does a great summary for the Levine case, that was heard yesterday, by the US Supreme Court. As described in the article, Wyeth v. Levine is the most hotly contested case of the Court's term. I am posting the article to give you an overview of the questioning of the Justices, as well as legislator reaction. While the Court will not issue an opinion until the end of the term, sometimes the questioning does give insight into how the Justices are leaning. Despite the length, here is the AAJ article for your consideration:

Wyeth v. Levine went before the Supreme Court on Monday. The case was heavily covered, with articles appearing in national newspapers and on all four wire services. A number of papers described the court as divided and predicted that the case will be decided on narrow grounds.

        In an article on the front page of its Business section, the Washington Post (11/4, D1, Markon) reports that Diana Levine's suit against Wyeth is "one of the most hotly contested cases of the Supreme Court's term. The justices yesterday debated Wyeth's contention -- which is supported by the Bush administration -- that the lawsuit should be thrown out because federal law preempts such state court claims." There were "divisions within the conservative bloc on the court." Justice Samuel A. Alito Jr. questioned how the [Food and Drug Administration] (FDA) approved a drug "as safe and effective' when 'you have the risk of gangrene.'" Also, "Justice Anthony M. Kennedy disputed Wyeth's contention that it could not have followed the Vermont law under which Levine sued without violating the federal law that regulates drug labeling." However, "Justice Antonin Scalia grilled Levine's attorney intensively, scowling at him." There is "an intensifying national debate over 'preemption,'" and "Levine's lawsuit struck a particular nerve, with both sides mounting intensive media campaigns before yesterday's argument."

        The New York Times (11/4, A20, Lipak) reports that this "was supposed to be the term's blockbuster business case," but the argument "quickly turned into a search for limiting principles." According to the Times, "Several justices appeared open to the idea that preemption could follow from the FDA's approval of a drug label -- but only if drug companies remained subject to lawsuits if they failed to disclose new information about potential risks," and "other justices seemed prepared to allow preemption -- but only if the drug agency had considered the particular risk before approving the label." The Times adds, "Given the justices' interest in those refinements, the court seemed unlikely to rule broadly on the larger issues in the case: whether the agency and other federal regulators set minimum safety standards that states are free to augment or whether they make judgments about the optimal balance between risks and benefits that states must follow."

        The AP (11/3, Sherman) added, "Several justices indicated that if the U.S. Food and Drug Administration had clear information about the risks of Wyeth Pharmaceuticals' anti-nausea drug Phenergan, and approved its warning label anyway, then Wyeth probably would prevail in its court fight against Diana Levine of Vermont." However, "there was considerable skepticism among the justices -- and disagreement between the opposing lawyers -- that the FDA had a clear picture of the disastrous consequences of improperly giving Phenergan by" IV push.

        The Wall Street Journal (11/4, A3, Bravin) notes, "Several Supreme Court justices expressed skepticism with arguments given Monday by business interests hoping for wide immunity from lawsuits over federally regulated products." Also, "several justices seemed to be searching for a moderate position, whereby private lawsuits might be permitted in extraordinary circumstances. The justices seemed disinclined to permit private lawsuits to simply re-evaluate data that the FDA had fully considered."

        USA Today (11/4, Biskupic, Appleby) points out that "much of the give-and-take centered on what happened in Levine's case. A majority of the justices did not tip their hand, although they emphasized different issues." While "Justices Ruth Bader Ginsburg and Samuel Alito raised questions of patient safety and the adequacy of FDA review of the drug label," both "Chief Justice John Roberts and Justice Antonin Scalia focused on drugmakers' ability to meet federal requirements without further demands from the states." Another USA Today (11/4, Biskupic) article reports, "A majority of the justices did not tip their hand during the hour of oral arguments. Many suggested a key question may be how the FDA had handled any attempt by Wyeth to change its label to made clear the dangers from the particular administration used on Levine."

        The Legal Times (11/3, Mauro) reported, "The Supreme Court appeared torn" during the argument, and "the case could be decided narrowly, giving little guidance about broader preemption issues beyond the area of drug labeling." In contrast, McClatchy (11/3, Doyle) reported, "several justices appeared ready to declare that federal regulations preempted certain state lawsuits. That would be a major victory for the drug company." CongressDaily (11/3, Edney) also reports that Levine's lawyers "faced hefty skepticism from justices."

        The Los Angeles Times (11/4, Savage) reports, "If the court agrees with the administration, congressional Democrats have said, they will seek to revise the law and restore consumers' right to sue." The Kiplinger Letter (11/4, Craver) reports, "Lawmakers have already taken action to help remedy the issue. In reauthorization legislation for the Consumer Product Safety Commission, Congress nullified the preemption language by inserting a section that preserves the right of consumers to seek restitution from those who caused them harm." During President Bush's administration, "over 60 proposed or final regulations put out by government agencies include language aimed at shielding companies from product liability claims. Les Weisbrod, president of the American Association for Justice, said, "In effect the Bush administration has made the safety of Americans secondary to corporate profits."

        In the Health blog on the Wall Street Journal (11/3), Sarah Rubenstein wrote, "what happens in tomorrow's presidential election may be every bit as important as what the Supremes say about Wyeth v. Levine," because "a Wyeth victory in court could be offset by an Obama presidential victory and a Democratic Congress."

        Dow Jones Newswires (11/3, Favole) and NPR (11/3, Totenberg) also cover this story. Dan Slater, in the Law blog of the Wall Street Journal (11/3), and Sarah Rubenstein, in a separate Health blog posting on the Wall Street Journal (11/3) website, also cover this story.

        Sen. Leahy argues Levine should prevail. In the Congress blog on The Hill (11/3), Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, wrote that "every American consumer will have a stake in the outcome" of this case. "The justices' ruling in Ms. Levine's case will affect the millions of Americans who use prescription drugs and may suffer avoidable injuries." Meanwhile, "the Bush Administration is taking the drug companies' side against consumers, putting corporate profits above all else." However, "corporate accountability and the right of American citizens to seek justice in their state courts hang in the balance." Should the Court overturn "the Vermont jury's decision, even the most misleading, inaccurate or insufficient drug label, if okayed by the FDA, will immunize a company from virtually all attempts by injured consumers like Ms. Levine to receive compensation."

        WSJournal argues Levine victory would stop drug innovation. The Wall Street Journal (11/4) editorializes that the "drug-approval system...balances the risks of treatments against the risk of not being treated at all. And a jury, faced with a single sympathetic plaintiff, is in no position to rule on the correctness of those FDA judgments." The Journal adds, "it amounts to double jeopardy to say, even if you" go through the approval process and correctly label the drug, "that you can still get sued if something goes wrong because someone else made a mistake. If a known and disclosed medical risk can still lead to a law suit, drug companies can literally be sued for anything." The Journal concludes, "if we want state juries second-guessing the FDA at every turn, let's pass a law in broad daylight so everyone knows whom to blame when drug innovation stops cold."

Wyeth v. Levine Followup

     This Federal Preemption case was heard this morning, involving the i.v. push therapy of a drug that is manufactured by Wyeth. As I have previously blogged (blog), Wyeth was arguing that it should be immune from suit because its drug had been approved by the FDA and such approval should remove any responsibility for injury. The Associated Press (AP article) described the arguments by the counsel and Justices. It seems that the Justices focused on the warning label and how Wyeth knew that the warning was inadequate and that they should have gone back to the FDA for a different label. According to the AP article, Wyeth's counsel responded that the FDA could have changed the warning, because it also knew about the issues that were not listed in the warning.

     This case has been broadcast as the Court's opportunity to take up drug company immunity. However, according to the reported arguments (Wall Street Journal) there is a potential that such immunity may not be exactly reached, if the Justices place their focus on warning instead of immunity. Notwithstanding, the Presidential and Congressional elections may have an impact. There are bills that have already been introduced that would serve to overturn any immunity that would be granted to the drug manufacturers, based upon any FDA defense. For such bills to possibly get passed, it is expected that the Democrats would have to control the House,Senate and President, to get the necessary votes and signature. This will be a sidebar issue as the tally of votes comes in. 

Law and Politics

    Experienced political campaign managers call the final days of campaigns "the silly days".  That is because candidates take their last swings in an attempt to get votes.  Many of those swings are slanted as just plain negative advertising.  Some of the ads are even downright mean.  In the small print, they usually come from some identifiable group, as the culprit who has paid for them.  In races that involve lawyer candidates, the advertising can even take on an attack at the law and the justice system. 

    I am attaching two mailers that were just sent in a house race in South Carolina.  The incumbent state representative is running against a lawyer challenger.  These mailers show that the incumbent apparently feels that he can make headway, by attacking this candidates occupation: the practice of law.

    One mailer says to "tell her to fight for tort reform, not trial lawyer and get rich quick schemes".  Another, allegedly paid for by "South Carolinians for Responsible Government" goes on to say, "We used to call them bank robbers, now we call them trial lawyers".  Both mailers use artwork that portray lawyers in an unfavorable light. 

    As a lawyer, you have to recognize that you cannot go on a one person march, to correct any image problem that lawyers may have.  You can only try to do your best in representing those that you call client. 

    Statistical surveys show that while lawyers as a whole, may not be popular with the public, that has not caused individuals to view their lawyer with great respect.  In fact, political surveys have even shown that these kind of ads are not effective.  Plus, voters have become much more savvy and are less influenced by such advertising.  However, I attach these pieces in my blog for a dual purpose.  One, political campaigns are nasty and will continue to be nasty, unless candidates that put this nonsense out, become aware that such advertising only hurts their campaign.  Two, when individuals realize that big government wants to limit access to the courthouse, then voters will get angry and vote in representatives, who are looking out for them. 

    It is up to us, as voters, not to accept this kind of negative campaigning.  Plus, candidates should not be allowed to hide behind silly groups that call themselves "for responsible government".  If you put out this kind of advertising, you should have to own up to it.  No one should be able to be anonymous and be able to attack, behind a lack of identification.  How about some political advertising, that has some truth in it.

Click on the following two attacments to view the discussed ads. 

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