Mississippi bill likely to die in Senate committee. Victims? Nursing home residents.
A bill that passed the Mississippi House with Republican support would have required nursing homes in Mississippi to carry a minimum of $500,000 liability insurance. However, it appears the bill will die in the Senate committee due to politics. Where is the justice? Even Sid Salter criticizes this one. Check out his blog on this issue.
Unfortunately, the victims of this miscarriage of justice are the nursing home residents subjected to abuse or neglect who will never be properly compensated for their injuries.
E-filing coming soon to Madison County, Mississippi Circuit Courts
Great news! Electronic filing will start on a voluntary basis on March 1st for Madison County Circuit Courts. It will be mandatory starting April 15th. E-filing started in Madison County Chancery Court and has now expanded to Scott County Chancery Court. Hopefully, e-filing will become the norm soon in all Chancery and Circuit courts in Mississippi.
Texting while driving prohibition passed by Mississippi Senate
Senate Bill 2595 unanimously passed the Senate and is headed to the House Transportation Committee for consideration. The bill would outlaw texting while driving for all individuals and would outlaw the use of cell phones while driving for those under 18, except in a case of emergency. Let's hope the House realizes how many lives can be saved by this measure. It is time to put down the cell phones and pay attention to roadway while driving.
I recently saw a bumper sticker that highlights the danger of texting while driving. It said, "If you want to see Jesus soon, keep on texting while driving." Call upon your representatives to pass this important measure.
Mississippi Supreme Court tells Governor Barbor--you have no authority to cut our budget
In a constitutional showdown, not quite as large as between the U.S. Supreme Court and Richard Nixon over some secret tape recordings back in the early 70s, the Mississippi Supreme Court issued an order yesterday telling the Governor and others that the Executive Branch did not have the authority to cut the budget of the Mississippi Courts. Chief Justice William Waller, Jr. and the other Supreme Court Justices reminded the Governor there are three equal branches of government. The Court held the Legislature has the duty to fund the Judicial branch and the Executive branch lacks the authority to cut the funds of the Judicial branch. As the Court stated,
"To the extent that State Fiscal Officer interprets Section 27-104-13 to authorize reductions in the judicial branch's budget, we hold that such interpretation is inconsistent with the Constitution of the State of Mississippi. We therefore hold that any funds duly appropriated for the judicial branch of government are not subject to reduction pursuant to Section 27-104-13."
On this round, the Governor overstepped his constitutional power and the Mississippi Supreme Court smacked him down. I think it is safe to assume there were many meetings between the different branches prior to the Court issuing this order. It appears the Governor was not willing to back down, so the Court stepped up.
Fifth Circuit Court of Appeals disagrees with Reglan generic drug manufacturer on preemption issue
The U.S. Supreme Court, in Wyeth v. Levine, ruled that the FDA regulations governing pharmaceuticals does not preempt a state-law failure-to-warn claim against the manufacturer of a name brand drug. However, the generic manufacturer of Reglan, Actavis, argued that the Food and Drug Administration (FDA) requires the generic drug manufacturer to use the same drug label as the name brand drug manufacturer. Reglan, a drug intended to treat gastroesophageal reflux, has been associated with tardive dyskinesia, an incurable neurological movement disorder. Actavis produced and sold a generic form of Reglan known as Metoclopramide Tablets.
The arguments by Actavis were spurious at best. The fact is the FDA regulations allow a name brand drug manufacturer to change a label if important safety information needs to be communicated. I've never heard of the FDA later stating warning doctors and consumers about adverse effects of a drug is mislabeling a product. Rather, the federal regulations allow changes to the label without prior FDA approval if the labeling "adds or strengthens a contraindication, warning, precaution, or adverse reaction." In reality, what you usually find, as I found in previous lawsuits against drug manufacturers, is the drug company is doing everything in its power to keep the warning as watered down as possible. Why? Because the bad effects of the drug means less sales.
Further, drug manufacturers know that the federal regulations regarding labeling for safety issues are the minimum standard. At the deposition of an American Home Products, now Wyeth, employee charged with supervising labeling changes, he admitted to me that the FDA labeling regulations are minimum standards that can be exceeded by the drug manufacturer as well as admitting that a labeling change seeking to add or strengthen a warning could be made by a manufacturer without prior FDA approval. Only their executives and lawyers seem to think otherwise.
So how did the Fifth Circuit rule in this case? Last week in Demahy v. Actavis, Inc., the Court held the FDA regulations do not prohibit a generic manufacturer from changing the labeling for safety related issues. In fact, the FDA regulations only require that the initial labeling for the generic drug be the same as the name brand drug. The regulations are silent as to whether further changes are prohibited. The Court found the FDA regulations make clear that "the manufacturer bears responsibility for the content of its label at all times. It is charged both with crafting an adequate label and with ensuring that its warnings remain adequate as long as the drug is on the market." The Court further held that, "as for maintaining an adequate label, the regulatory framework makes plain that manufacturers-name brand and generic alike-must act to warn customers when they learn that they may be marketing an unsafe drug."
This case is another example of the Bush Administrations' attempts to have federal law preempt state product liability law fail. Thankfully, in Wyeth v. Levine, the U. S. Supreme Court stopped the swing of the pendulum towards preemption of state product liability laws. Name brand and generic drug manufacturers will have to face state court juries when they fail to warn doctors and consumers of safety information and consumers are later harmed by their failure to warn.
Mississippi injury case seeks to overturn the tort reform caps on non-economic damages
A recent Mississippi case on appeal got the attention of Governor Haley Barbour. The issue is the constitutionality of Mississippi Code, Section 11-1-60(2) which states:
(2) (a) In any cause of action filed on or after September 1, 2004, for injury based on malpractice or breach of standard of care against a provider of health care, including institutions for the aged or infirm, in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than Five Hundred Thousand Dollars ($500,000.00) for noneconomic damages.
(b) In any civil action filed on or after September 1, 2004, other than those actions described in paragraph (a) of this subsection, in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than One Million Dollars ($1,000,000.00) for noneconomic damages.
The case involves Ronnie Lee Lymas who was shot leaving a store in Belzoni. He sued Double Quick, Inc. due to the inadequate security for its customers. A jury awarded Lymas actual damages of approximately $4 million dollars. However, the judge reduced the non-economic damages to $1 million dollars due to the statute above.
For the first time since taking office, Governor Barbour filed an amicus brief with the Mississippi Supreme Court asking the Court to uphold the constitutionality of the cap on damages. You can be assured other amicus briefs will be filed on both sides of the issue and a decision will not be coming anytime soon.
Attorneys beware--watch out for those subrogation liens.
Two days ago, the Sixth Circuit Court of Appeals affirmed a summary judgment where a plaintiff's attorney was found liable to the ERISA health plan for settlement funds he disbursed. A fellow blogger, Health Plan Law, has a great discussion of the case here.
For those with personal injury lawsuits, if your health insurance company pays for your medical and you ultimately recover money from the person who caused those injuries, your health insurance company has a subrogation lien for the amount of medical paid. That means you could possibly have to pay the insurance company for the amount it paid for medical expenses you ultimately recovered from the liable party.
In the case above, the client did recover monies and the attorney disbursed the settlement funds without paying the insurance company back for the medical it paid on behalf of the client. The plan ultimately sued the client and attorney for the money. Lesson to all parties. Prior to settling a personal injury case or disbursing funds from a personal injury settlement, make sure you have paid all liens.
East Texas federal judge issues order on Toyota concealment lawsuit
Marshall, Texas is currently ground zero for the Toyota litigation which arose from a former managing attorney's wrong termination lawsuit. As previously reported, Dimitrios Biller, the former managing partner in charge of Toyota's National Rollover Program, alleged Toyota and some of its attorneys concealed, withheld and destroyed evidence in cases against Toyota. U.S. District Judge T. John Ward issued a temporary restraining order on September 30th instructing Toyota to hold any documents pertaining to the crashworthiness of Toyota vehicles. A temporary injunction hearing, scheduled for today, was put off after the Defendant agreed to preserve any evidence.
The Texas Lawyer reported that Dimitrios Biller may have dropped another bombshell when he delivered four boxes of documents to Judge Ward's courtroom. No doubt both sides are interested to see what is in those boxes.
So how did this matter end of in an east Texas courtroom? The plaintiffs previously had a lawsuit against Toyota and settled the lawsuit before the Biller's allegations of concealment. Once Biller's allegations were made public, this lawsuit was filed seeking sanctions against Toyota and others for the alleged concealment. A copy of the Texas complaint can be found here. Essentially, the plaintiffs are arguing that the Defendants should be sanctioned for discovery abuses by concealing relevant information. Given the national implications of this lawsuit, you can be assured similar lawsuits are being filed across the nation.
Significant changes to deadlines under the Federal Rules of Civil Procedure
Effective December 1, 2009, the Federal Rules of Civil Procedure will undergo significant changes for calculating deadlines. The Drug and Device Law Blog offers a good summary and links to the changes.
U.S. House of Representatives reapportionment lawsuit filed in Mississippi
Yesterday a lawsuit was filed in the federal district court for the Northern District of Mississippi. The lawsuit has national implications as it seeks to declare the law capping the number of U.S. representatives at 435 as unconstitutional. For those who are not up on their political science, the 83rd Congress enacted a law freezing the total number of U.S. representatives in the U.S. House at 435. This lawsuit seeks to overturn the 1911 law arguing that the law creates "significant under-representation for some states, and significant over-representation." The five states under-represented include Mississippi, Montana, Delaware, South Dakota, and Utah. As an example, Montana has 1 congressional district for the state (meaning one U.S. representative) with a 2000 population of 905,316 persons. Wyoming, on the other hand, has 1 congressional district with a population of 495,304 persons. As such, Wyoming is over-represented in comparison to Montana, according to the lawsuit.
This lawsuit also enacts a provision of federal law which requires a three-judge panel to decide the case as opposed to the usual federal district court case where one judge makes the decision.
At the very least, the lawsuit ought to be a great civics lesson. Stay tuned.
Texting while driving more dangerous than drunk driving
As of July 1, 2009, teenagers in Mississippi, who hold either an intermediate license, a temporary learning permit, or a temporary driving permit, cannot send or receive texts on their phones while driving. Doing so is a misdemeanor subject to a fine.
While the law did not go as far as some wanted, it was an initial step in curbing a new behavior which is leading to deaths of motorist across the country. I know my children are more apt to text than talk on the phone. But unfortunately, many in our multitasking society think we can safely operate a motor vehicle while texting on the phone. However, recent studies show those texting while driving poses a greater risk than those who drink and drive. A recent study by Car and Driver found that drivers texting were 3 to 4 times slower than drunk drivers to apply their brakes to avoid a collision. The reason is simple. The driver's attention is not on the roadway in front of them, but on sending or reading the message on their phone.
It is time for the Mississippi legislature to take the law further. No one can safely operate a vehicle while texting on a phone. A couple months ago, I was coming back from Vicksburg on I-20 and was behind an 18 wheeler. The driver was having a hard time staying in his lane and kept drifting to the right and left. I decided to pass him in the left lane and as I pulled up to the cab, I looked up and saw the driver holding his phone in front of him trying to read messages on his phone.
The movement to ban texting by all drivers is growing. Currently, 18 states (Alaska, Arkansas, California, Colorado, Connecticut, Illinois, Louisiana, Maryland, Minnesota, New Hampshire, New Jersey, New York, North Carolina, Oregon, Tennessee, Utah, Virginia, and Washington) have passed laws banning texting while driving. Hopefully, Mississippi will become part of the movement. Recently, the Governors Highway Safety Association supported a complete ban on texting while driving. The decision was influenced by a recent study from the Virginia Tech Transportation Institute that indicated that a driver who is texting increases crash or near-crash risk by 23 times.
The Clarion-Ledger ran a story this morning about crazy old laws on the books in some cities. Seems there was once fear of drunk elephants in the city. The law, dating back to 1810, prohibits drunken elephants. According to the article, the law was the result of a Natchez resident who offered a live elephant show at his house, the historic Texada home. The elephant was either given beer to drink or the elephant found his own beer, so it is now illegal to have a drunken elephant on the street. So be warned: If your headed to Natchez, don't bring your drunken elephant.
In an update to a previous blog, Mississippi Governor Haley Barbour signed legislation banning cities and counties in Mississippi from using traffic cameras to catch red-light runners. Those cities that currently use the cameras, including the City of Jackson, have until October 1st to discontinue their use.
Mississippi House votes against cell phone ban while driving
In an update to a previous post about a bill limiting Mississippi teenagers from texting while driving, the Mississippi House of Representives voted 65-52 against a provision which would have forbid all drivers of vehicles from using cell phones or texting while driving. This vote comes on the heels of another report as to how deadly Missisippi roads can be. According to a recent article, Mississippi leads the country in per capita automobile fatalities involving teenagers drivers.
While I'm not an advocate for more governmental regulation, the safety on our roadways is an area where something needs to be done. We don't need to be leading the nation in per capita roadway fatalities, especially among our teenagers. If you think the same way, contact your Representative or Senator and let your voice be heard.
On a more positive note, the House voted 64-54 against deleting the portion of the bill which prohibits new teenage drivers from texting while driving. Let's hope the Senate approves this measure.
In an update to a previous post, the Mississippi House passed a measure which prohibits teenagers from texting while driving. Senate Bill 2880, according to the article, prohibits 15 and 16 year-old drivers who have learner permits from texting while driving. It is now headed to the Senate for passage.
Why is this limited to just teenagers? I was driving back from Vicksburg last week on I-20 and got behind a tractor-trailer having a hard time staying in the right-hand lane. As I got into the left hand lane to pass the trucker, I pulled up besides the cab of the truck and saw what was causing the truck driver problems. He was texting on his cell phone. Study after study shows that texting while driving contributes to accidents. When are we going to realize that operating a vehicle while texting is not in the best interest of the public on Mississippi roads? If serious about reducing accidents, this measure would be passed applying to everyone operating a motor vehicle.
