Clark, Perdue, Arnold & Scott's Blog

Compensatory Damages

A jury awards compensatory damages if it finds the defendant was at fault, and its fault contributed to causing injury or death. Fault in a products liability case, such as a Vioxx case, is usually based on a jury finding that the defendant was negligent and/or that the product is defective.

Compensatory damages pay a plaintiff for economic losses, such as medical expenses and lost wages, and also for non-economic damages, such as loss of enjoyment of life, pain, and suffering.

In most states, non-economic damages in a death case include the family's loss of the decedent's companionship, love, and affection. A few states only allow recovery of economic losses in death cases.

Punitive Damages

Punitive damages cannot be awarded until after a jury has awarded compensatory damages first. A jury is not required to award punitive damages, even if the evidence is sufficient to allow them.

Punitive damages require a higher standard of proof than compensatory damages. There has to be evidence that the defendant acted intentionally, willfully, maliciously, or with reckless disregard for safety obligations before a judge will give a jury the option of awarding punitive damages.

Punitive damages are intended to punish a defendant and to deter it and others from similar conduct in the future. A defendant's net worth is a relevant consideration in deciding how much is enough to adequately punish it.

Now that school is back in session, you may encounter a school bus during your morning or afternoon commute, and you may be unsure about the traffic rules that you learned so long ago in drivers' education. We all need a refresher course on basic traffic safety rules from time to time.

Traveling in the Same Direction as a School Bus

You cannot pass or overtake a school bus that has stopped to either pick up or drop off children. You must stop at least ten feet behind the school bus and remain stopped until the bus resumes its travel.

Though buses are required to extend a stop sign from the side of the vehicle, traffic is still required to stop even if the bus fails to display the sign.

Traveling in the Opposite Direction of a School Bus

If you are approaching a stopped bus from the opposite direction, you are required to stop at least ten feet from the front of the bus and remain stopped until the bus resumes its travel. However, if you are traveling on a roadway that is divided into four or more lanes of travel, you are not required to stop.

For a brief summary of these and other Ohio traffic laws, click on the following link: http://www.bmv.ohio.gov/misc/traffic_rules.htm.

Whether you are visiting a restaurant, a department store, or an auto repair shop, good service is what you expect. Good service is the baseline. Nobody really gets excited about good service, because it is what you deserve--at a minimum. Nobody raves to others that they received good service. It's basically taken for granted.

At Clark, Perdue, Arnold & Scott, we believe that delivering merely "good service" is not enough. Most lawyers should be able to deliver "good service," but we have higher standards. Our clients deserve more, and we are committed to delivering more in all aspects of our client representation.

At Clark, Perdue, we will exceed client expectations:

• By listening to our clients first, until we really understand what they need, not just what we think they need;
• By providing every client with personal attention;
• By returning all telephone calls promptly;
• By answering all of your questions clearly and in plain English;
• By keeping all of our promises and completing all tasks and legal work on time every time;
• By providing the highest quality legal work possible.

We call this "Raving Fans Service," and everyone at our law firm is totally committed to it. We want to create "raving fans." It is our goal in every case that we will exceed our clients' expectations to such a degree that they will feel compelled to share their experience with someone else. That is, they will become "raving fans."

Most anyone can do an adequate job. At Clark, Perdue, and List, we are exceeding expectations every day.

On September 6, 2006, Merck's board of directors said that a 20-month investigation paid for by Merck found that its senior management acted responsibly in developing and marketing Vioxx.

The 1,700-page report, which cost $21 million, contains some minor criticisms of employee actions but concludes that "management acted with integrity and had legitimate reasons for making the decisions that it made, in light of the knowledge available at the time."

After Vioxx was withdrawn, Merck's board hired six people outside of the company to evaluate allegations that it covered up the cardiovascular risks of the drug. Merck hired John Martin, a lawyer with the corporate defense law firm Debevoise & Plimpton, to head the investigation. Mark Goodman, a partner at Debevoise & Plimpton who worked on the investigation, said that the members of the team were not asked it they have any conflicts of interest in participating in the project.

Martin said that Merck acted appropriately and that the Vioxx situation was unavoidable.

Attorney Mark Lanier, who represented Carol Ernst in the $253 million Texas Vioxx verdict (see page 1), called the report "an absurd, expensive PR stunt" and wondered if anyone would consider "a jury independent if I paid them $21 million." He said it was an attempt to influence Wall Street analysts and potential jury members.

It is unlikely that the report could be used in a trial, because of problems in meeting the requirements of the rules of evidence in federal and state courts.

The report criticized some of Merck's marketing, public relations programs, and responses to doctors who raised concerns about Vioxx's safety.

Merck says the report confirms the company's position that it never knowingly put patients at risk.

If you are looking to purchase a new or used motor vehicle, you probably want to know how well the vehicle will protect you and your family in a collision. You may also want to know about the vehicle's safety features -- features designed to prevent collisions from occurring. There are several easy-to-use websites where consumers can find motor vehicle safety information. Below are a couple of sites to get you started.

The Insurance Institute for Highway Safety is a nonprofit organization that tests the "crashworthiness" of motor vehicles. The Institute publishes the results of its tests and provides consumers with "Top Safety Picks" for each class of motor vehicle (e.g., small, midsize) and ratings for all of the vehicles that it has tested. The Institute's website is http://www.iihs.org/.

Consumer Reports is also a nonprofit organization that tests motor vehicles and provides consumers with the results. In order to obtain detailed information on a specific model, you need to subscribe to ConsumerReports.org. The cost is determined by the subscription that you select. However, you may be able to find enough free information simply by navigating the website. Here is the link: http://www.consumerreports.org/cro/cars/index.htm.

Results of the federal government's crash testing is available through the National Highway Traffic Safety Administration's website, http://www.safercar.gov/. You can search by make and model, and the information is free.

Of course, you may also find a wealth of information by googling the make and model of the vehicle that you are interested in purchasing. Your search results may include news articles, consumer reviews, or safety information from an unexpected source.

If you use painkillers, you should know that Merck & Co.'s experimental painkiller, Arcoxia, may carry the same risk of heart attack and stroke as Vioxx. Vioxx was pulled from the market on September 30, 2004, as a result of increased risk of adverse cardiovascular events, including heart attacks and strokes.
A review of clinical trials published in today's Journal of the American Medical Association (JAMA) confirms the risks associated with Vioxx. Moreover, the studies suggest that Arcoxia (a drug designed by Merck to succeed Vioxx) has similar risks as Vioxx. Arcoxia has not yet received FDA approval.

Following the removal of Vioxx from the market, Dr. David Graham, a physician with the FDA's Office of Surveillance and Epidemiology, testified that "Vioxx has been a disaster. This is unparalleled in the history of the United States."

In an editorial pubished in JAMA today, Dr. Graham noted that "the FDA, academia, and the medical research enterprise are once again faced with the opportunity to forsake common sense by willfully accepting misdirection and disinformation presented in the guise of science."

View the entire editorial at http://jama.ama-assn.org/cgi/content/full/296.13.jed60058v1

If I Have Been Injured in a Collision, How Long Do I Have to Resolve My Personal Injury Claim?

There is a statutory deadline for bringing a legal cause of action. This deadline is known as a "statute of limitations."

Generally, in Ohio, the statute of limitations for personal injury claims is two years. This means that a person must either settle their claim or file a lawsuit within two years from the date of the incident. If a person fails to obtain a settlement or file a lawsuit within that time, they will lose the right to receive compensation for their injuries.

For a minor (a person under the age of 18), the statute of limitations does not begin to run until the minor's 18th birthday. Thus, a minor has until his or her 20th birthday to take legal action against the parties who caused the injury. Parents of the minor may also have a claim for medical expenses paid on behalf of the minor. The statute of limitations for that claim is four years from the date of the incident. Again, the failure to file a lawsuit or settle these claims within the appropriate time period will result in the loss of the right to obtain compensation.

Please note that this is general information and not a substitute for legal advice. The statute of limitations applicable to your personal injury claim may be different, depending upon certain facts. Therefore, we recommend that you consult with an attorney regarding which time limitation applies to your claim.

If you would like to speak with an attorney in our Firm, you may send a confidential email to us via http://www.clarkperdue.com/contact_pi.html or call (800) 647-7003.

Automobile insurance can be confusing, even for very sophisticated consumers and lawyers. Here are a few tips to make sure that you and your family are adequately protected.

Liability insurance protects you when you cause an accident that harms someone else. A serious motor vehicle crash can result in a legitimate claim against you for hundreds of thousands of dollars. Make sure you have enough liability insurance to protect your assets from claims by others.

Property damage insurance pays for the other party's damaged vehicle. If you cause a serious wreck, and the other party is driving a luxury car like a Lexus or Mercedes, the property damage claim alone could exceed $50,000. We recommend that most people have property damage insurance for at least $50,000.

Medical payments coverage pays for your medical expenses, regardless of who is at fault. It also pays the medical expenses for your passengers. It can be used to supplement your health insurance by paying deductibles and filling gaps in health insurance coverage. You choose how much medical payments coverage you have on your policy. We recommend that most people carry at least $25,000 of medical payments coverage.

Uninsured motorist coverage is widely misunderstood - to the disadvantage of many accident victims. Uninsured motorist (UM) coverage protects you when you or your passengers are injured by another motorist who has no insurance - or too little insurance. In such a case, your insurance company "steps into the shoes" of the other driver and pays you damages to which you are entitled, as if it were paying on behalf of the other driver. This is some of the most important insurance coverage you can have! This coverage also steps in when the other driver is underinsured - that is, had some insurance but not enough to fully compensate you. NEVER reject uninsured motorist coverage when your agent asks you whether you want it. It is not expensive, and we recommend that you purchase as much UM coverage as your insurance company will sell you.

Umbrella insurance coverage is relatively inexpensive, and it is one of the best values and most important coverages you can purchase. It is called "umbrella" insurance because it "covers" your motor vehicles, your home, and many other things, much like an umbrella. It is sold in multiples of $1 million, and is in addition to your basic automobile or homeowners insurance. It also provides UM coverage, which is very important to you and your family if you are involved in a motor vehicle collision that leaves you seriously injured or disabled and unable to work.

If you have questions about your insurance policy or how much insurance you should buy, feel free to call one of our lawyers at no charge.

For more information, visit the website of the Ohio Department of Insurance at http://www.ohioinsurance.gov/consumserv/ocs/ocspub.htm.

Last year, the Guidant Corporation (Indianapolis, Indiana) recalled or issued warnings on more than 80,000 of its implantable cardioverter defibrillators ("ICD") - many of which are in use in the United States. The defibrillators can short-circuit, causing them to fail and not work as intended. The company has received reports of the device malfunctioning at least 45 times, resulting in at least one death.

Guidant came under fire following reports that it had failed to alert physicians about potential problems with one of the defibrillator models, the Ventak Prizm 2 DR Model 1861. One of these devices was implanted in Joshua Oukrop, a 21-year-old Minnesota college student who died when his defibrillator short-circuited while he was mountain biking.

Joshua's doctors were stunned by his death because the autopsy indicated no clinically significant pathology other than hypertrophic cardiomyopathy - a thickening of the heart muscle - the condition for which the ICD was implanted. Until his death, it was widely believed that ICD's were invariably successful in preventing sudden cardiac death in young patients with Joshua's condition, as long as they did not have end-stage heart failure (which he did not).
These recalls have caused anxiety among thousands of people who have the ICD devices embedded in their chests. In some situations, physicians are having difficult conversations with their patients about ICD replacement - a procedure that carries serious risks, including the risk of infection.

What is an ICD?

An ICD is an electronic device implanted in the body and intended to prevent cardiac arrest from severe ventricular tachycardia (an abnormally rapid beating of the heart). An electrode is connected between the heart and a tiny computer in the ICD. The computer monitors the heartbeat and, if it detects an arrhythmia, it activates a built-in pacemaker to restabilize the heart's rhythm. If that fails, the ICD delivers a small defibrillating electrical jolt to the heart. In an extreme case, it resorts to a far stronger jolt to reset the heart rate.

Who is Guidant?

Guidant is a major manufacturer of implantable medical devices, including defibrillators. Following the recall of many devices, Guidant was purchased by Boston Scientific Corp.

Although the ICD litigation is ongoing, Guidant has had past legal troubles. In 2003, one of its subsidiaries, Endovascular Technologies, pled guilty to multiple felony charges and paid more than $90 million in fines for failing to notify the FDA about device malfunctions and patient deaths related to its Ancure Endograft system, a stent-graft device used for the treatment of aortic aneurysms. As part of the settlement, Guidant and Endovascular agreed to notify the FDA about future product-related problems. The issue of whether Guidant complied with that agreement will be hotly contested in the ICD litigation.

What models have been called into question?

ICD models that have been called into question include the following: Contak Renewal (Model H135), manufactured on or before August 26, 2004; Contak Renewal (Model H155), CRT-D, manufactured on or before August 26, 2004; Contak Renewal AVT, Contak Renewal 3; Contak Renewal 4; Ventak Prizm 2 DR (Model 1861), manufactured on or before April 16, 2002; Ventak Prizm AVT; Vitality AVT; Renewal 3 AVT; Renewal 4 AVT; and Renewal RF.

Unfortunately, these devices do not give any sign of imminent failure, and there is no reliable test to determine whether the ICD is defective prior to failure. This creates a substantial dilemma for physicians - whether to advise patients to remove ICD's without knowing whether a particular device is in fact defective.