A: Every state has certain time limits, called “statutes of limitations,” which govern the amount of time you have to file a personal injury lawsuit. In some states, you may have as little as one year to file a lawsuit arising out of an automobile accident. If you miss the deadline for filing your case, you may lose your legal right to damages for your injury. Consequently, it is important to talk with a lawyer as soon as you suffer or discover an injury.
Everybody blames President Obama for “Obama care”, when really, congress passed the legislation. If you want to be mad, be mad at Congress. When members of Congress says they are going to repeal Obama care, they are talking about repealing the law they passed. When they complain about the medical device tax and talking about repealing it, they passed it in the first place.
The hype about the medical device tax from the medical device manufacturers is that they will have to lay off employees and shutter their doors. The truth, however, is that they will not have to do either. They will increase device costs, and that will not affect patients one bit.
Skeptical that the device manufacturers won’t follow through on their threats? Consider the February 21, 2013 article by Arezu Sarvestani in the Mass Device Website. The site describes itself as the place for “News and information for the medical device industry and the companies that drive it.” So, if news and information is posted there about the medical device industry, it is reliable.
Sarvestani says in his article that “more than 40% of the medical device makers surveyed say they would raise prices to deal with some or all of the impact or the new 2.3% sales tax compared with only 11% who said they would reduce their staff”. Better yet, he reports that only 1% said they would exit the US market entirely.
The device manufactures go their politics of fear play out of the playbook of one of their biggest fans and supporters, President George W. Bush. They do not enjoy that support with the Obama administration as the later is trying to find real solutions for the economic disaster it inherited.
QUESTION: Can’t the judge or the opposing attorney make sure the jurors are of more than one race? I’m not saying they made a mistake, but when you have civil rights involved can’t somebody do something about the racial mix of the jurors? Now we have everybody up in arms over the jury – but it is after the fact.
ANSWER: The simple answer is actually no. The problem is that the process of picking or selecting a jury (called voir dire) is in reality de-selecting a jury. In other words, instead of picking the jurors that each side of the case want on a case, they actually strike or eliminate those that they do not want. Those potential jurors that are stricken have shown or indicated through their responses to questions in the jury selection process that they may have a bias towards or against one side of the case. In a criminal case like this one, the prosecution will strike those potential jurors who are less likely to find the defendant guilty, and the defense will strike those potential jurors who are more likely to find the defendant guilty. No strikes can be made based in whole or in part on the race of the potential juror, period.
The fact that this particular jury had no African Americans on it in no way means it was rigged or fixed, as that simply is not possible and does not happen in Harris County, Texas. It was an all white jury because of the people that showed up for jury duty, the random assignment of them to the court where that case was being tried, the random order given to the potential jurors that were in the group of jurors sent to that court for the jury selection process, and the bias that them may have shown towards one side or the other in this particular case. You see, every person called to jury duty is qualified to be a juror; not every person, however, is qualified to sit on a particular case because of their potential biases.
Lastly, every criminal defendant is entitled to a trial by jury before a jury of his peers. That means peers from his community. It does not mean persons of his same age, race, sex, social status, education, wealth, or religion.
The jury here rendered its verdict yesterday based on the evidence that it heard and saw in the courtroom, including the videotape that we all have seen many times. However, unless we had sat through the entire trial, heard and saw every piece of evidence, and observed the jury’s deliberations, we cannot know or appreciate how the jury reached its verdict. We can talk about it and second guess their verdict, but you can rest assured that nothing was or could have been done in this trial to rig or fix the jury so the officer would be found not guilty.
Earlier this month, the Texas Supreme Court once again cast its arms around Big Business and shoved Texans out the door.
Not so long ago, if you were the victim of an accident wherein medical bills were incurred you could present the total amount of his bills to a jury even if your insurance had paid the majority of those bills. This was fair. After all, one of the elements of damages that you are entitled to is pain and suffering. One way to convey how much pain you suffered is to show the amount of bills you had to pay to not have that pain anymore.
But that has changed. The Texas Supreme Court has ruled that the only bills you can present to a jury are the ones you still owe.
Let me give you an example: Let’s say that you are the victim of an accident wherein your medical bills are $100,000.00. Let’s further say that you were responsible enough to have medical insurance (which, by the way, you paid dearly for because medical insurance is not cheap). In our example, your insurance paid $90,000.00 of your bill and has a lien to get reimbursed of $10,000.00.
The Texas Supreme Court has ruled that the only amount you can present to the jury is $20,000.00 (the $10,000.00 left over from the original bill plus the $10,000.00 insurance lien). Will $20,000.00 give the jury an accurate picture of how injured you really were? No. So, whatever pain and suffering you would have received is now likely reduced by a large amount.
But let’s take this a step further. Under this new law, the person who hit you and caused the accident, caused you to incur medical bills, caused you to lose time from work, and caused you the pain and suffering now benefits from YOUR insurance.
Yep, the person who slammed into you AND his insurance company get the benefit of all those premiums that YOU paid. The bills HE caused are reduced by the insurance YOU paid for.
It is as if you are being punished for being responsible enough to carry insurance.
And here is a head scratcher: On one hand, we have Federal Government trying to force everyone to buy insurance while the Texas Supreme Court says, yes, but you better never use it in car accidents!.
Excuse me, Texas Supreme Court, but your bias is showing. Again.
The US Supreme Court correctly held in its 2010 decision in Wyeth v Levine that state tort laws do not conflict with federal law and can be used to hold the pharmaceutical manufacturers accountable for the serious injuries and damages caused by their dangerous drugs. The legalese for the legal issue made the basis of that decision is preemption: Are claims brought on state tort laws inconsistent with and therefore preempted by federal law. The Court recognized that the FDA could not possibly shoulder all of the responsibility for determining the safety of a prescription drug during the new drug approval process. It further recognized that tort laws were not inconsistent with the federal laws and regulations that the FDA operates under, and those laws play a very important role in determining the safety and effectiveness of dangerous drugs that the FDA approves. After all, the only information the FDA has to make that decision comes from the drugâs manufacturer. No comfort level, there.
In June, 2011, the same US Supreme Court in Pliva Inc. v. Mensing held just the opposite for the manufacturers of the generic forms of these dangerous drugs. The Court found that state tort claims are inconsistent with and are preempted by federal law and are not permitted. This ruling is significant for a number of reasons. First, the company that develops and obtains FDA approval to market a drug (called the innovator) maintains that exclusive right for a ten year period. That ten year period can be extended under certain circumstances. After that ten year period and/or any extended periods run, the exclusivity is lost. Other drug companies can manufacturer and market the innovatorâs exact same drug under its own name. These identical drugs are called generics. Second, the generic manufacturers do not have the same duties that the innovator has in the new drug approval process to test generics for safety and effectiveness and for full, complete and accurate disclosure of all know risks of serious side effects associated with that drug; this is the sole responsibility of the innovator. Third, if the innovatorâs label for the drug is inadequate and incomplete, the genericsâ label will be inadequate and incomplete. Fourth, if your physician prescribes a generic form of a drug, or worse yet if your insurance company will only approve and pay for a prescription filled with the generic form, and you suffer a serious injuries and damages from that drug, you will not be able to file suit to seek compensation against the generic manufacturer.
Since the innovator obtained FDA approval and is responsible for the drug labelâs full, complete and accurate disclosure of all know risks of serious side effects, it appears that the patient may be able to bring suit against the innovator even though the patient ingested the generic and not the original form of the dangerous drug. The pharmacy, pharmacist, insurance company, and physicians are also left exposed by this ruling for their part in the patientâs injuries and damages. Prior to the Mensing decision, Bailey & Galyen did not included pharmacies, pharmacists, insurance companies, and physicians in cases filed against the drug companies for serious injuries and damages. The Supreme Courtâs decision now forces us to include them in the lawsuit.
While the ruling is consistent with Levine, its disservice is that it leaves the generic manufacturers untouched and unaccountable for serious injuries caused by their dangerous drugs. It puts the consumer between the proverbial rock and a hard place, with the fox guarding the hen house.