Columbus, Ohio Attorney Blog - Robert W. Kerpsack Co., L.P.A.

The mortgage situation in the U.S. has been in the news recently, as more homes go into foreclosure. This is not a sudden problem, but has been brewing for several years. It is a complex situation with many aspects, and Cleveland has one of the highest foreclosure rates in the country.

One of the problems in Cleveland has been lenders who target groups that they see as financially unsophisticated. These are relatively low-income people, and minorities. Some mortgage brokers chose to target people who had been ordered to repair their homes to avoid prosecution, as they had been cited for building code violations. Some bought lists of people with unpaid hospital bills. The thinking behind these actions was that these people needed money quickly and could be persuaded to refinance their homes for that reason, and pay high fees in the process.

In one case, Eva v. Midwest National Mortgage Banc, Inc., the plaintiff alleged that:

“Defendants extract unconscionable and illegal fees from their victims until there is no money left to extract; they then leave their victims’ homes vulnerable to foreclosures, which the loans were specifically designed to facilitate.”

That case was filed in 2000, and has now been settled, saving seven of the eight homes involved.

Another case is Housing Advocates, Inc. v. Argent Mortgage Co. where the complaint was filed for racial discrimination and claimed that the company targeted African-American homeowners, offering them loans that were likely to lead to foreclosure. An investigation found evidence to substantiate this claim, and a hearing is now scheduled.

The City of Cleveland has sued 21 Wall Street banks that funded lenders who followed predatory lending practices.

Similar cases have been filed in many other states. Baltimore has sued Wells Fargo bank for predatory lending practices in African-American neighborhoods. Countrywide Financial Corp, which is the country’s largest lender, is facing multiple lawsuits:

• From a previous regional manager who has filed a whistle-blower suit, (Zachary v. Countrywide Fin. Corp.)
• From the Florida U.S. trustee for “bad-faith conduct that abused the judicial process”
• Similar complaints in Ohio, North Carolina, Texas and Pennsylvania

If you have been persuaded to refinance and are now regretting it, or if you are facing possible foreclosure, please don’t delay in contacting us. We will be glad to give you a free case evaluation.

Hurricane Katrina happened on August 29, 2005, but the legal aftermath continues. This week a federal judge dismissed fraud claims in a Katrina lawsuit against State Farm Fire & Casualty Co.

A couple whose home had been badly damaged by wind and water sued State Farm after that company paid the limit of their flood policy plus $36,000 for wind damage, but blamed the rest of the home’s damage on Katrina’s floodwaters. The homeowner’s policy excluded flood damage.

Through their attorney Richard Scruggs and his partners, the couple charged fraud because they claimed that an Alabama firm used by State Farm for damage assessments had provided two different engineering reports after Katrina. State Farm then underestimated the wind damage on the couple’s home to reduce its liability under the homeowner’s policy.

The judge, Judge Senter, ruled that if this claim were sustained, it would constitute bad faith, but not fraud. The couple may continue their efforts to obtain payment but with a different attorney, as Richard Scruggs has been indicted for attempted bribery in an unrelated Katrina dispute.

It is important to know exactly what your homeowner policy covers. Do read the fine print and ask questions if you are not sure where you stand. If you have sustained property damage through another’s negligence you may have a valid legal claim, so please call us or send an email if you would like to schedule a free consultation.

Merck & Co., Ltd., the manufacturer of VIOXX, has agreed to a very large settlement amount in a class action suit (see The VIOXX Saga: Part 2). The many people who filed lawsuits against Merck had a variety of health problems associated with having taken VIOXX for several months or longer.

Serious VIOXX Side Effects

• Heart attacks – not always fatal
• Strokes – also not always fatal. Strokes and heart attacks can be caused by blocked blood vessels
• Blood clots – which can block a blood vessel and cause strokes and heart problems
• Stomach problems – intestinal bleeding can happen without warning and may require hospitalization. This is rare.
• Allergic reactions – which can cause breathing troubles if the throat or mouth becomes swollen
• Kidney problems – another rare side effect which could perhaps cause kidney failure
• Liver problems – also very rare

Minor VIOXX Side Effects

This is a partial list of non-life-threatening side effects:

• Respiratory tract inflammation or infection
• Headache and back ache
• Fatigue
• Stomach pain
• Dizziness
• Nausea
• Urinary tract infection
• Meningitis
• Elevated blood pressure
• Irregular heartbeat

How VIOXX works

VIOXX is one of a groups of drugs which are alternatives to steroids. The group is called NSAIDs (for Non-Steroidal Anti-Inflammatory drug). Steroids reduce inflammation (which helps reduce pain) for a short while, but when taken for too long they cause a list of unpleasant side effects. So NSAIDs are used whenever possible. Other NSAIDs are aspirin, naproxen and ibuprofen. Acetaminophen is not an NSAID.

VIOXX prevents the formation of compounds called prostaglandins, which are thought to cause pain and inflammation. It is a “Cox-2 inhibitor”, meaning that it blocks the action of a body enzyme nicknamed Cox-2.

Unlike the other NSAIDs, it does not block Cox-1, whose job is to maintain stomach tissue, protecting the stomach lining. This gives VIOXX the advantage of being able to reduce pain and inflammation without causing stomach bleeding or ulcers. (Most people know that aspirin can cause gastrointestinal bleeding – it blocks Cox-1.)

VIOXX Questions

Questions have been asked about VIOXX since soon after it was approved by the FDA. Studies suggested an unacceptable risk of heart problems, and although Merck denied there was any evidence of that, compared to other NSAIDs, the FDA sent that warning letter to Merck in 2001 (see The VIOXX Saga: Part 1 in this space).

Lawsuits followed, as outlined in previous blogs here. Merck issued a statement after the November, 2007 class action suit agreement. It states the conditions those class action plaintiffs must meet to qualify for payment from Merck.

If you have taken VIOXX and suffered any of the side effects listed above, or others which you think are connected to VIOXX, contact your doctor immediately. Please also feel free to contact us to learn more about your legal options.

Yesterday this writer posted Part 1 of the VIOXX saga. Please refer there for the basics as to what VIOXX is. Following are verdicts returned during 2005 and 2006. This is not a complete list of all lawsuits filed.

August, 2005 – A Texas jury awarded $253.4 million to the widow of a man who had died in 2001 after taking VIOXX. It was reduced to $26 million by the Texas punitive damage caps. This was the first VIOXX verdict.

November, 2005 – A New Jersey jury cleared Merck of a heart attack sustained by someone who had taken VIOXX for about two months only.

February, 2006 – a New Orleans jury cleared Merck in the death of someone who took VIOXX for about one month.

April, 2006 – Two cases in New Jersey concluded. One jury awarded $13.9 million to a 77-year-old man who had a heart attack after four years of taking VIOXX. The same jury cleared Merck in the case of a 60-year-old who took VIOXX for nearly two years.

June, 2006 – The New England Journal of Medicine published a correction that had been issued by Merck, that changed the APPROVe study results. It stated that heart problem risks increased earlier than the 18 months previously stated.

July, 2006 – A New Jersey jury cleared Merck in the heart attack of a diabetic who had taken VIOXX for over two years.

August, 2006 – A California jury cleared Merck in the heart attack of a 71-year-old man

August, 2006 – A New Jersey judge overturned the November, 2005 verdict for Merck, on the basis that new information had come to light since then which warranted a new trial.

August, 2006 – A Louisiana jury ordered Merck to pay $51 million to a man who took VIOXX for two years, then had a heart attack and continued on VIOXX for about two more years. Later that month, a Federal judge ordered a new trial because that amount was “grossly excessive”.

March, 2007 – The jury in the new trial awarded $20 million in damages to this man in his new trial.

November, 2007 – In a class action suit on behalf of plaintiffs who suffered heart attacks or strokes after taking VIOXX, a settlement was reached in which Merck agreed to pay $4.85 billion, to be divided among the several thousand plaintiffs and their attorneys. Each claimant will receive an amount according to his or her medical records. This is the largest pharmaceutical settlement ever.

• Thousands of personal injury lawsuits were filed and many consolidated
• Discovery began in 2001 on consolidated cases
• Over 50 million pages of documents were produced and read
• Over 2005 depositions taken
• Thousands of motions filed
• Hundreds of cardiac experts were consulted, as well as medical experts in pharmacology and neurology
• Negotiating teams from each side met over 50 times and conducted several hundred conference calls

Part 3 of this VIOXX Saga will briefly discuss the medical risks and issues. Please contact us if you have taken VIOXX and subsequently suffered a heart attack, stroke, or other life-threatening event. We will be glad to give you a free consultation.

VIOXX™ is a non-steroid, anti-inflammatory drug (NSAID – a painkiller) marketed by Merck & Co., Inc., producer of the famous Merck Manuals, and a leading international pharmaceutical company. Merck spends billions each year on drug research and development.

May, 1999 – The FDA approved VIOXX for arthritis, menstrual pain, and other acute pain in adults. It has been marketed in over 80 countries, under the name of CEOXX in some. Chemically, it’s related to ibuprofen and naproxen, both older drugs. VIOXX blocks a certain enzyme which helps cause inflammation and pain, and has been found effective for arthritis and the other conditions it is approved for.

June, 2000 – Merck finished a study called VIGOR (standing for VIOXX Gastrointestinal Outcomes Research). They gave the results to the FDA. Naproxen and VIOXX had been compared and it was found that patients on VIOXX had five more heart attacks than those on Naproxen.

September, 2001 – The FDA sent a warning letter to Merck about the Merck promotional campaign. The FDA thought it was minimizing the risk of heart problems (heart attack and stroke).

April, 2002 – Merck amended the VIOXX package insert to include a warning about potential heart problems.

September, 2004 -- Independently of the FDA, Merck announced that it was withdrawing VIOXX from the market because of increased risk of heart problems. A study (called APPROVe) had been ongoing which for the first 18 months came up with no indications of increased cardiac risk. But patients who took VIOXX for longer than 18 months had increased heart problems – overall (not in every case). That APPROVe trial was stopped.

It had begun in 2000, and involved 2,600 patients with a history of colon cancer. It was evaluating the effectiveness of VIOXX in preventing recurrence of intestinal growths. The indications of cardiac risks started appearing 18 months into this trial. Merck decided to withdraw VIOXX rather than amend its labeling.

February, 2005 – The FDA, having had a panel investigating the matter, concluded that VIOXX and the similar drugs (Naproxen and ibuprofen) all increase risks of heart problems, but should still be available on the market.

This space will continue the VIOXX saga by briefly outlining the series of verdicts through 2005 and 2006.

If you have taken VIOXX and then sustained a heart attack or stroke, please feel free to contact us for a free case evaluation.

In 2001 there was a fatal accident where renovations were being done at the Ferry Building in San Francisco. A construction worker was operating a Toyota forklift moving lumber, and the forklift tipped forwards. An onsite safety foreman, Hilary St. John, ran over and tried to correct the forklift from its rear. But about 5,200 pounds of lumber fell on top of him and he was found dead on the site.

St. John’s family filed a wrongful death claim against Toyota, alleging that the forklift was negligently and defectively designed. Their suit asked for $25 million in compensatory damages. The trial lasted eight weeks and the jury returned a verdict in favor of Toyota.

However before and during the trial, the judge, James McBride, found that Toyota had twice failed to produce forklift design documents. He told jurors that they should conclude that those documents were negative for Toyota. He issued a post-trial order imposing sanctions of $138,984.33 on Toyota; and he granted the plaintiff’s motion for a new trial.

Toyota appealed this, but the First District Court of Appeal upheld the sanctions and new trial decision. In March, 2008, Toyota’s attorneys asked that Judge McBride be disqualified from retrying the case, and from presiding over any related proceedings. In his disqualification motion, attorney John Ranucci wrote:

"Because Judge McBride has previously expressed comments regarding the integrity and veracity of defendants, an average person on the street might reasonably entertain a doubt that the judge would be able to be impartial.”

Not many people file motions to have a judge thrown off a case. It’s risky, because if you fail, you have now alienated that judge. Judges are supposed to always be fair and impartial, but they’re human too.

This case is now in the Alameda County Superior Court, where Judge Frank Roesch will rule on the disqualification motion. How likely is he to throw one of his peers off a case? No doubt we’ll learn of his decision soon.

If you have lost a loved one in an accident, and are wondering if you have a valid wrongful death claim, please call or email us to schedule a free case evaluation.

Seeking to save diabetics from having to use needles for injecting insulin every day, some companies have tried to develop an inhalable form of insulin.

Pfizer, the world’s largest pharmaceutical company, announced last October that it would stop marketing Exubera, which had not sold very well. Pfizer had developed it in partnership with Nektar Therapeutics, a California drug company.

Work on developing an inhalable insulin has been going on since 1924, when the idea was first thought of by German researchers. The problem is that insulin is a large, complex protein and delivering it to the body via the lungs is a challenge. The size of the particles has to be reduced so small that it can reach the very tiny lung capillaries which would absorb it into the bloodstream.

Not until the 1990s did testing begin on humans and in January, 2006, the FDA approved Exubera for both Type 1 and Type 2 diabetes. Withdrawing Exubera so soon after it had been approved has cost Pfizer $2.8 billion.

Exubera problems

1. With the FDA, Pfizer and Nektar had been reviewing data from the three FDA testing phases and the subsequent reports after Exubera went on the market. Exubera was causing breathing problems in many patients. The drug carried a warning label about this.

2. There was a problem about dosage, as Exubera is dosed in milligrams, but insulin is traditionally prescribed in international units. One mg of Exubera equals three units of insulin, so one would expect that three mg would equal nine units. But it doesn’t; it’s the equivalent of only eight units. Doctors were advised to refer to the company’s conversion table.

3. Exubera is a fast-acting insulin. Therefore it begins working in the body more quickly than injected insulin and works for a shorter time. So diabetics still needed injections of longer-acting insulin to keep the level steady each day.

Meanwhile, other companies are trying to develop their own forms of inhaled insulin, as the idea is a good one, and with diabetes on the upswing, could potentially be lucrative. The MannKind Corporation in California is working on one called Technosphere Insulin, which is in the final stage of FDA testing. Eli Lilly’s product has just completed Phase 2 testing. Novo Nordisk, a Danish company, is also investing large sums in inhalable insulin. Other companies have developed less painful needles for insulin injection.

In the long term, this is all good news for diabetics, as eventually there will probably be a painless and effective way to take insulin. Meanwhile, if you have been injured by Exubera, and are wondering if you might have a valid legal claim, please contact us for a free consultation.

An elderly couple now living in Colorado, Joseph and Mary Garza, filed suit in 2005 against Asbestos Corp. Ltd, after Joseph was diagnosed with asbestosis. The symptoms of asbestosis typically show up several decades after the person was first exposed to asbestos. Joseph had worked in Navy shipyards during the 1940s and 1950s where he used asbestos products in repairing boilers. He was given no protective mask or clothing, according to his trial testimony.

Asbestos fibers are microscopically small and become airborne as asbestos products are handled. Asbestos was used for many purposes for about 100 years because it is fire-resistant, electricity-resistant, and resistant to chemical change.

Now Joseph cannot walk more than half a block and must use a portable oxygen tank because the asbestos fibers became caught in his lungs. Because asbestos is resistant to chemical change, the body is unable to neutralize, dislodge, or excrete those fibers. Therefore they remain in the lungs, burrowing ever more deeply until they start filling the tiny air sacs where oxygen is taken in from the air and carbon dioxide is released to the air.

Joseph is 77 now and becoming unable to care for his wife, who depends on him because of her own health problems. On March 25, the California appeals court upheld the $11 million award against Asbestos Corp. Ltd, Joseph’s employer. Although he was exposed to asbestos in several later jobs, the jury held Asbestos Corp. to be 75% responsible for his illness today.

More people are being diagnosed in recent years with asbestos, because their symptoms are now becoming evident, after exposure to asbestos several decades ago. The same is true of mesothelioma, also caused by asbestos fibers lodged in the body. If you have been diagnosed with asbestos or mesothelioma, please call or email us to schedule a free consultation.

Recently the FDA has issued new rules about when a manufacturing company can be sued if one of their products causes injury. The new rules say that if that product had previously passed FDA testing standards and been approved for marketing to the U.S. public, you may not sue that company. For example, if a medication causes severe side effects not listed in the paperwork which accompanies each bottle of tablets, eyedrops, etc., and you have to seek medical help, you cannot sue the manufacturer if that medication was previously FDA-approved.

The reasoning behind this change?

Getting a new product FDA approved costs millions or even billions of dollars in research and testing, and many years of salaries paid and research expenses met. If a company goes through all this, and succeeds in having the product approved for whatever use it was tested for in the three FDA testing Phases, then that company should not be held liable if somebody unexpectedly develops some other reaction to the product, or is injured by it in some unusual or unanticipated way.

“Life Happens”, is the summary of this, perhaps. The researchers can’t foresee every human response that might conceivably happen on planet Earth. If the drug or product hurts you, stop using it. Use your health insurance and get medical care if necessary. But don’t try to blame the company which created this product and went to so much trouble to get it approved and available to you.

This approach pleases corporate defense attorneys. It doesn’t necessarily please potential plaintiffs’ attorneys. Some of them are calling it “silent tort reform”. When state and federal laws clash, federal laws prevail, per Article Six of the Constitution. However, if there is no federal law then federal courts have to go by whatever state law there is.

This tension is built into our system

There are a great many active lawsuits against product manufacturers, especially pharmaceutical companies, where arguments go back and forth:

• Is the FDA-mandated labeling on a product adequate? (suit against Baxter Healthcare Corp. re heparin labels; also Vioxx cases against Merck & Co.)
• Should Wyeth Pharmaceuticals have to pay $6.8 million to a man given a Wyeth drug in an artery instead of a vein?
• Who is responsible if the FDA refuses to let a company strengthen its product label? (another Wyeth case, presently in appeal before the Supreme Court)

If you have been injured by a product and wonder whether you have a valid legal claim, please contact us for a free consultation. Determining your legal position must be done by an experienced and qualified attorney. So don’t spend any time fretting and worrying. Just give us a call or send an email.