Colorado Law Blog

Vioxx Mass Settlement - The questions we have.

11 Nov, 2007  No Comment

     In September 2004, Merck withdrew it painkiller Vioxx from the market when concerns about whether it causes increased heart attacks and strokes.  On Friday, Merck and six lawyers who have secretly negotiated a settlement agreement, announced a global settlement.  Merck has agreed to pay $4.85 billion to settle lawsuits by people who claim they or their family members suffered injury or died after taking the drug.  The reports of the actual number of people who will be covered by the settlement varies from 27,000 to 50,000.  

But what will the individual client receive from this settlement.  This was the question asked by Beth Klein quoted in the Wall Street Journal: 

Beth Klein, a Denver plaintiffs lawyer who filed four Vioxx suits in New Jersey state court, said that while the settlement provides a welcome opportunity to avoid litigation, she would need a lot more information before she could recommend it. “People are going to want to know the lowest amount they could get, the worst-case scenario, before they agree to that settlement,” she said. That includes figuring out the cut that will go to health insurers and exactly how much her clients could get docked for having risk factors for cardiovascular disease. Right now, she said, “I don’t have a handle on what the payout will be.”

 WALL STREET JOURNAL ARTICLE

Merck has already spent more than $1.2 billion on defending Vioxx-related claims.  Merck decided to not settle cases. And in a series of cases in 2006 and 2007, Merck defeated plaintiffs in California, Florida, New Jersey, Illinois and Louisiana, while losing only a handful of cases.

According to the New York times, “While eye-popping, the settlement payment represents less than one year’s profits for the company, the third-largest American drug maker.”  After the announcement of the settlement analysts report that Merck’s shares increased 4/6% in value.

On November 11, 2007, we were able to obtain copies of the current versions of the Vioxx Settlement Documents. 

Description of Vioxx Settlement

 Examples of Vioxx Claim Settlement Valuations

November 10, 2007 Version Vioxx Master Settlement Agreement

The official website for the class action settlement has a calculator with which you can compute how much you will receive in the settlement.  VIOXX CALCULATOR 

Insurance Company Money Grab - ERISA Subrogation

10 Nov, 2007  No Comment

Many people faithfully pay their health insurance premiums so that they will be covered for major medical expenses.  But after they are seriously injured, they have a rude awakening.  Their insurance company wants its money back from any lawsuit, the insurance company wants the injured to pay for the litigation and do all of the work, and the insurance company may want all of the settlement - or all of its money back before the injured family gets a dime.  The worst of all are ERISA health insurance plans and auto insurance med pay, which is nothing more than a loan in many circumstances.  The injured person is out money for the insurance premiums, the costs of litigation, and the amount of medical bills that the insurance company promised to pay. 

Tom Carey lost his wife to gross medical negligence that destroyed her intestines leading to a horrible death.  His ERISA health insurance carrier wanted him to pay it back $1.4 Million dollars and undertake all of the costs and fees related to the medical malpractice lawsuit.  The OUTRAGEOUS story is here:

LATCHING ONTO A LAWSUIT - THE INSURANCE COMPANY MONEY GRAB

If you are injured because of the negligence, fault, or intentional misconduct of another, you must be aware of the terms of your health and med pay policies.  You have far greater protections as a consumer under state regulated health insurance plans than ERISA or MED PAY. 

Toy Hazard Recalls

9 Nov, 2007  No Comment

This year the Consumer Product Safety Commission has issued hudreds of recalls for defective toys.  The problems range in severety from violation of a lead paint standard, to serious injury risks caused by Aqua Dots, which if ingested, metabolize to a “date rape” drug.  The list of recalled products continuously grows, and please use this link to determine whether a product you are considering or have purchased has been recalled.   CPSC TOY HAZARD RECALLS 

Carrie Frank Joins Our Firm

26 Oct, 2007  No Comment

On November 1, 2007, Carrie Frank will officially join our firm.  Her creditials are very impressive.  She has been focused on automobile product defect and other significant product liablity cases for the last 20 years.  She has been instrumental in obtaining over $150 Million in settlements and verdicts in her career.

Carrie will be the President of the Colorado Trial Lawyers Association, and she leads education programs at the national level for the American Trial Lawyer’s Association (AAJ).  Carrie is listed as one of the top 3000 Plaintiffs lawyers in the United States on www.lawdragon.com.  Most of all Carrie brings a wealth of experience and a wonderful sense of compassion and detail to our firm.  Welcome Carrie!

Carrie will focus on auto accident and products liability matters including medical devices, defective drugs and other recalled and dangerous products.

EDUCATION:

University of Denver School of Law, Denver, CO., J.D., 1987
Editor, Family Law Journal

Columbia University School of Social Work, New York City, N.Y., M.S.S.W., 1981

C.W. Post College, Greenvale, N.Y., B.A. dual degrees, Psychology and Sociology 1979, magna cum laude

BAR ADMISSION:

State Court: Colorado, 1988
U.S. Court of Appeals: Tenth Circuit, 1988
U.S. District Court: District of Colorado, 1988

LAW PRACTICE:

Gilbert, Frank, Ollanik & Komyatte, P.C., Arvada, Colorado
Product liability and Personal injury litigation, 1988-present

Caplan & Ernest, L.L.C., Boulder, Colorado
Law Clerk, 1985-1988

District Attorney’s Office, Juvenile division, Boulder, Colorado
Student Attorney, 1986-1987

LEGAL ASSOCIATION MEMBERSHIPS:

American Association for Justice.
Attorney’s Information Exchange Group.
Colorado Trial Lawyers Association.
Trial Lawyers for Public Justice.

PUBLICATIONS:

“The Shocking Truth About Electrical Products,” Trial Talk, December 2006

“Recognizing Automotive Product Liability,” in Colorado Auto Litigator’s Handbook, Colorado Trial Lawyers Association, June 2006

“The Shocking Truth About Electrical Products,” Trial, January 2006

“Are You Missing A Product Defect Claim In Your Car Crash Case?” Trial, March 2004

“Are You Missing A Product Defect Claim In Your Car Crash Case? (Part II)” Trial Talk, December 2003/January 2004

“Auto Design Defects” in Litigating Tort Cases, West-ATLA Press, June 2003

“Are You Missing A Product Defect Claim In Your Car Crash Case? (Part I)” Trial Talk, December 2002/January 2003

“So You Think Your Job Is Done? Important Case Completion Issues,” Trial Talk, December 2000/January 2001

“Conversion Vans: Woodsheds on Wheels,” Trial, January 2000

“The Not So New, But Unknown, Powerful Plaintiff Settlement Tool,” Trial Talk, December 1999/January 2000

“Recognizing the Auto Restraint Defect Case,” Trial Talk, December, 1998/January 1999

“Product Liability: A Partial List of Internet Resources,” Trial Talk, December, 1998/January 1999

“Discovery to Disclosure: The Pretrial Exchange of Information in the New ERA,” Trial Talk, December, 1994

SEMINAR PAPERS AND PRESENTATIONS:

ATLA Education, Overcoming Juror Bias College, Part II: The Ten Commandments, National College of Advocacy, Denver, Colorado, October 26 - 29, 2006 (faculty)

ATLA Education Case Workshop Program, National College of Advocacy, San Diego, California, September 13 - 17, 2006 (faculty)

“Litigation at Sunrise - Products Liability,” Program Chair and Moderator, 2006 CTLA Annual Convention, Copper Mountain, Colorado, August 5, 2006

Products Liability Education program, Program Moderator, 2006 ATLA Annual Convention, Seattle, Washington, July 18, 2006

“Termination Without Trial,” Colorado State Bar - Litigation Boot Camp Program, Denver, Colorado, June 21, 2006

ATLA Education Advanced Depositions College, National College of Advocacy, Denver, Colorado, March 30 - April 2, 2006 (faculty)

“Using the Defendant’s Discovery Responses to Prove Alternative Designs,” ATLA 2006 Mid-Winter Convention, Honolulu, Hawaii, February 21, 2006

ATLA Education Case Workshop Program, National College of Advocacy, Pittsburgh, Pennsylvania, September 14 - 18, 2005 (faculty)

“Super Sunday - Mock Trial” Program Moderator, CTLA 2005 Annual Convention, Snowmass, Colorado, August 14, 2005

“Using Other Similar Incidents at Trial,” ATLA 2005 Annual Convention, Toronto, Canada, July 26, 2005

ATLA Education Case Plus: The Next Step in Developing and Testing Your Trial Story, National College of Advocacy, St. Louis, Missouri, May 4 - 7, 2005 (faculty)

“Using Focus Groups to Overcome Juror Bias,” Association of Trial Lawyers of America - New Jersey Educational Foundation, Edison, New Jersey, February 26, 2005

“Working with the ‘Special Needs’ Client from Beginning to End,” Personal Injury Settlement Planning, Colorado Bar Association, Denver, Colorado, February 4, 2005

ATLA Education, Overcoming Jury Bias in Complex Cases: Medical Malpractice and Products Liability, National College of Advocacy, Miami, Florida, January 14-15, 2005 (faculty)

“Compliance with Government Regulations - New Challenges and Defenses,” Kansas Trial Lawyers Association, December 2-4, 2004

ATLA Education, Overcoming Juror Bias College, Part II: The Ten Commandments, National College of Advocacy, Santa Fe, New Mexico, October 27 - 30, 2004 (faculty)

ATLA Education Case Workshop Program, National College of Advocacy, San Diego, California, September 29 - October 3, 2004 (faculty)

“Using Focus Groups to Overcome Juror Bias,” ATLA 2004 Annual Convention, Boston, Massachusetts, July 4, 2004

“Compliance with Government Regulations - New Challenges and Defenses,” ATLA Annual Convention, Boston, Massachusetts, July 6, 2004

“Working With Special Needs Clients from Beginning to End,” “Introduction to Qualified Settlement Funds,” and “Preparing for the Settlement Conference,” Enhancing and Leveraging Tort Recoveries Program, LawPro Seminars, LLC, Enchantment of the Seas Cruise, May 20 - 24, 2004

ATLA Education Overcoming Juror Bias College, National College of Advocacy, Atlanta, Georgia, October 16 - 19, 2003 (faculty)

“Fifteen Passenger Van - Dangerous and Unpredictable When Used As Intended,” ATLA 2003 Annual Convention, San Francisco, California, July 22, 2003

ATLA Education Case Workshop Program, National College of Advocacy, Dallas, Texas, June 11-15, 2003 (faculty)

“Use of Qualified Settlement Funds,” CTLA Auto Blockbuster Seminar, Denver, Colorado, March 6-7, 2003

“Spoliation of Electronic Data,” ATLA 2003 Winter Convention, Maui, Hawaii, February 3, 2003

“Overcoming the Defense Shield of Work Product,” ATLA 2003 Winter Convention, Maui, Hawaii, February 3, 2003

ATLA Education Case Workshop Program, National College of Advocacy, Los Angeles, California, September 19-22, 2002 (faculty)

“Crashworthiness Litigation: Recognizing the Automotive Design Defect Case,” 2002 CTLA Annual Convention, Snowmass, Colorado, August 10, 2002

“Expert Challenges in Product Cases: Getting Past the Hurdles,” 2002 ATLA Annual Convention, Atlanta, Georgia, July 23, 2002

“Motivating Jurors - How Jurors Make Decisions,” 2002 ATLA Annual Convention, Atlanta, Georgia, July 21, 2002

“A Crash Course in Black Box,” VTLA Third Annual Advanced Auto Retreat, Charlottesville, Virginia, July, 13, 2002

“Low Speed Collision Cases: A Crash Course in Black Box,” ATLA 2002 Winter Convention, Miami, Florida, February 11, 2002

“The Black Box: The Auto/Truck Data Recorder,” CTLA Blockbuster Auto Seminar 2002, Denver, Colorado, January 31, 2002

“Other Similar Incidents in the New Millennium,” AIEG Fall Seminar, Orlando, Florida, October 27, 2001

“So Why Do You Drive an SUV?” 2001 ATLA Annual Convention, Montreal, Canada, July 18, 2001

“Discovery/Confidentiality Orders/Countering the Rambo Scorched Earth Litigator” 2001 ATLA Annual Convention, Montreal, Canada, July 18, 2001

“Using Automobile Data Recorders in Litigation,” ATLA Teleseminar, June 19, 2001

“Understanding the Plaintiff’s Lawyer’s Plight in Negotiations,” National Academy of Elder Law Attorneys, Institute 2000, Colorado Springs, Colorado, November 18, 2000

“So You Think Your Job Is Done? Important Case Completion Issues,” Continuing Legal Education, Denver, Colorado, October 26, 2000

“Use of Other Similar Incidents in Preparation and Settlement of Your Case,” 1999 CTLA Annual Convention, Snowmass, Colorado, August 5, 1999

“Conversion Van Litigation,” 1999 ATLA Annual Convention, San Francisco, California, July 19, 1999

“Recognizing the Automotive Defect Case,” 1999 ATLA JazzFest Convention, New Orleans, Louisiana, May 1, 1999

“That Was No Accident: The Use of Similar Incidents Evidence in Products Liability Cases,” 1997 ATLA Annual Convention, San Diego, California, July 23, 1997

“Voir Dire: Beyond Jury Selection,” WTLA 1997 Sun Valley Seminar, Sun Valley, Idaho, February 27-March 2, 1997

“Advanced Settlement Techniques,” Academy of Florida Trial Lawyers, Breckenridge, Colorado, December 16, 1991

“Recent Developments In Products Liability Actions Arising Out Of Auto Crash Cases - Suing The Manufacturer,” Colorado Trial Lawyers Association, Denver, Colorado, March 1991

“Homeowner’s Insurance,” Continuing Legal Education, Denver, Colorado, December 1990

VOLUNTEER ACTIVITIES:

American Association for Justice, Product Liability Section, Officer, 2003 - present

American Association for Justice, Product Liability Section, Newsletter Editor, 2003 - present

American Association for Justice, Press Advisory Board, 2006 - present

Colorado Trial Lawyers Association, Trial Talk, Product Liability Editor, 1998-present

Colorado Trial Lawyers Association, Board of Directors, 2000-present

Colorado Trial Lawyers Association, Product Liability committee, Chair, 2002 - present

Colorado Trial Lawyers Association, Executive committee, 2004 - present

Advisor, Wheat Ridge High School Trial Advocacy Team, 1998-2000

Serious Head Injuries Prompt Recall of Bumbo Baby Sitter Seats

25 Oct, 2007  No Comment

Today the U.S. Consumer Product Safety Commission announced a voluntary recall of Bumbo “Baby Sitter” Seats manufactured by Bumbo International, of South Africa.  ”If the seat is placed on a table, countertop, chair, or other elevated surface, young children can arch their backs, flip out of the Bumbo seat, and fall onto the floor, posing a risk of serious head injuries.”  The CPSC has received 28 reports of young children falling out of the Bumbo Baby Sitter seat, including three skull fractures, which occurred when children fell out of chairs that had been placed on tables. These seats were sold at Target, Wal-Mart, Sears, Toys R Us, Babies R Us, USA Babies and various other toy and children’s stores nationwide, and various online sellers, from August 2003 through October 2007.You can see more information about this defective product at www.bumbosafety.com

Bike Accidents

22 Oct, 2007  No Comment

Bike Accidents and Road Striping

Every day, bike riders in Colorado contend with all kinds of challenges from traffic to goat heads. But, there is one hazard that can be easily fixed so that serious injuries can be prevented. That hazard comes from road striping operations, and the excessive glass beads that are left on the road.  Read our detailed report about this hazard and things that you can do to make sure that road striping companies clean up the beads.  Bike Accidents

That’s Allstate’s Scam

18 Oct, 2007  No Comment

Allstate constantly points the finger in its advertising to people that are injured in accidents and has done a mass marketing campaign to create the impression that people who are injured by their policy holders are frauds and scam artists. 

If you are in an auto accident, you will likely see paperwork from insurance companies that warn you if you commit any fraud, they will prosecute you.  But, Allstate doesn’t want to abide by the same standards has been caught ripping off injured people in Washington, and it has been forced to pay the people it hurt through a class action.  Details about the class action can be found here:

Allstates Scam

Allstate did not want to cover the full cost of medical bills so the company used a billing software program that arbitrarily determined the average pay rate for a procedure in the geographical area and then paid out only 85 percent of the rate, according to an attorney for plaintiffs.  And it used these reduction policies on their own policy holders who had paid Allstate for personal-injury protection car insurance.   Allstate paid a percentage of the bills, and it left its policy holders to make uf the difference on their own.  The amount may have been small each time, but it added up to hundreds of dollars that unsureds had to pay out of their own pockets to cover the gap, plaintiffs lawyers said. “They should be forced to disclose that. It’s not fair,” he added.

Judge Downing will be overseeing the approval of the settlement, and having had the honor of working in his Courtroom, I have no doubt that Judge Downing will do an excellent job making sure that Allstate “pays up” instead of “stands on” its own policy holders who are involved in car accidents.

Without Plaintiff’s lawyers, the courts, and citizens to serve on juries, Allstate would be pocketing money that it owes. 

Auto - Pedestrian Accidents

15 Oct, 2007  No Comment

This week, Colorado saw too many pedestrian - automobile accidents on highways.  On October 14, 2007, two pedestrians were hit while attempting to walk from a wreck on Interstate 25 in Lone Tree.  One person in the car got out to inspect the damage and was injured when a second vehicle collided with the stopped vehicle, according to Lone Tree police. One of the pedestrians died today.  Last week two Colorado State Patrol troopers were hit by a pickup that slid into them while they helped a motorist on a highway.  Trooper Zach Templeton died from his injuries Friday evening.

What Should You Do If You’re In Accident On The Highway Or Your Car Breaks Down?

Having your car break down on the highway is frightening.  So what should you do?  Here are some suggestions:

Car Breaks Down Or You Have An Accident & You Can’t Get Over To The Shoulder

Police officers advise that when they have had to stop with a police car in an active lane, officers don’t put the vehicle in park. Instead, they sit with the brake on and carefully watch the rear view mirror ”because we get hit all the time.” If it looks like someone’s coming, you can take evasive action.  Every situation will be different in terms of location, weather and traffic flow, but if you can, police officers suggest that you find a safe place outside your vehicle to wait.

Your Car Breaks Down & You’re On The Shoulder

No matter what time of day it is, or how busy the road, you should never get out of your vehicle. Your best bet is to call a tow truck. Tow trucks can block the highway behind you.  Don’t be afraid to call 911.  You should never open your car door or window to a stranger, especially if you’re a female motorist.

When Is It Safe To Change A Flat Tire?

If you get a flat and you’re on the side of the highway, is it safe to change the tire?

Only if the distance between where the vehicle is, as far as the tire change, does not afford you in any way being an obstruction to a live lane of traffic.”  If you are close to the white line, forget changing the tire.  The preference is that you stay in your car, turn the hazard lights on, and call 911.  If you don’t have a cell phone, place a ‘Call Help’ or ‘Call Police’ sign in your window. Those placards can be purchased at most hardware stores, or you can make one and keep it in your car for emergencies. 

Insurance Company Corporate Policies to Deny Valid Claims

11 Oct, 2007  No Comment

Anderson Cooper has done a wonderful job exposing how insurance companies deny and devalue valid claims while using mass media to persuade Americans that people who are hurt in accidents are all frauds and that juries - which are comprised of Americans themselves  - are stupid and out of control.   In every case that we try, the reason we are going to trial is because the insurance company has made a decision to process the claim in the deny, delay, devalue fashion.  In every case that we try juries express that they believe that “there are too many lawsuits.”  However, in Colorado that has some of the strictest tort reform in the Court, that is not the case.

In Washington when faced with a law designed to make insurance companies treat people fairly, big insurance is fighting hard with a referendum and advertising campaign of misinformation.

Tile Perfect Stand ‘N Seal Personal Injury Warning

9 Oct, 2007  No Comment

Stand ’n Seal, a do-it-yourself product sold atHome Depot has caused serious lung damage in consumers who used the product.  The New York Times reports that this product recalled in 2005 has stayed on the shelves at Home Depot.  in August 2005 a voluntary recall of 300,000 cans of Stand ‘n Seal was announced.  At that time the Rocky Mountain Poison Center said it had received reports of nearly 60 cases of people having health problems after using a spray-on tile sealant purchased at Home Depot.  The product, “Tile Perfect, Stand ‘N Seal,” is made by Roanoke Companies now known as BRTT.  It was a product designed to make tiling easier. 

Stand n Seal is associated with several life-threatening conditions, including Reactive Airway Dysfunction Syndrome (RADS), chemical pneumonitis, and obliterated bronchitis.

Aside from the serious problems with the chemical composition of Stand n Seal, the grout sealer also was defective as manufactured because the product did not have a pungent odor to signal the spray was toxic. Instead, the product had a sweet, citrus smell, causing users to unknowingly expose themselves to toxic amounts of the dangerous grout sealer.

Cans of the product were not included in the recall until March 2007.  If you have any cans of Stand ’N Seal, compare them with the recall information listed here and return the cans to Home Depot. 

 The product is marketed under the brand name of Tile Perfect™ Stand’n Seal “Spray-On” Grout Sealer. The date/lot codes are printed on the bottom of the can. All cans with date/lot codes starting with the following six digits are included in the recall: A20985; A30985; A10995; A20995; A30995; A11015; A21015; A31015; A11025; A21445; A31445; A11455; A21455; A31455; A11465; A21465. Units with other date/lot codes have been reformulated and are not subject to this recall.

If you, a family member or a friend have been injured by Tile Perfect Stand’n Seal and you need additional, personal information contact one of our Colorado Personal Injury lawyers.