Burg Simpson

Burg Simpson Eldredge Hersh & Jardine, PC Files Federal Complaint in the Southern District of Ohio Against Covidien, Inc.

2009-08-05T21:12:09Z

In April 2009, the attorneys at Burg Simpson Eldredge Hersh & Jardine, PC, filed a complaint in Federal Court in the Southern District of Ohio against Covidien, Inc., a manufacturer and distributor of medical devices, including surgical staplers. Covidien’s website indicates that the medical device at issue, its ENDO GIA Universal Stapler, “places two triple, staggered rows of titanium staples and simultaneously the knife divides the tissue in between. The instrument is designed for multiple use during a single surgical procedure . . . .”

]]> The complaint alleges that Covidien’s Stapler failed during surgery, causing a tear in a major vein, which resulted in plaintiff’s death due to uncontrollable blood loss. Plaintiff’s complaint seeks damages from Covidien for wrongful death caused by Covidien’s faulty manufacture of the ENDO GIA Universal Stapler and for distribution of a medical device that is dangerous to health when used in the manner prescribed.
The attorneys at Burg Simpson are representing individuals harmed by medical devices like the Universal Stapler and others. Please contact Burg Simpson if you have questions concerning medical devices like the Universal Stapler and others and visit our website at www.burgsimpson.com.

BURG SIMPSON FILES CASE AGAINST DEPUY ORTHOPAEDICS, INC., FOR DEFECTIVE MEDICAL DEVICE

2009-08-05T14:42:54Z

In January 2009, the attorneys at Burg Simpson Eldredge Hersh & Jardine, PC, filed a complaint in Federal Court in the Southern District of Ohio against DePuy Orthopaedics, Inc. for failure of its Limb Preservation System. According to DePuy’s website, its Limb Preservation System is designed to be used in situations involving malignant tumors (e.g., osteosarcomas) where extensive resection and replacement of the femur and tibia bones is required.

]]> The complaint alleges that Plaintiff suffered injuries when his Limb Preservation System failed and he had to undergo surgery to replace the tibial hinge insert portion of the System. Less than six months later, the Limb Preservation System failed again and Plaintiff had to undergo another surgery. Plaintiff’s physicians decided to remove the entire DePuy device and replace it with a similar device manufactured by a different company.

Plaintiff’s complaint seeks damages from DePuy for the injuries, expenses, and pain and suffering caused by, among other things, DePuy’s faulty design and manufacture of the Limb Preservation System and distribution of a medical device that is dangerous to health when used in the manner prescribed.

Ten Patients have Tested Positive for Hep C in Denver

2009-07-09T15:39:24Z

Ten patients who underwent surgery at Rose Medical Center in Denver have learned they were infected with hepatitis C following their operations. The scrub tech responsible for the blood-borne disease exposure tested positive for Hepatitis C. Kristen Parson is facing charges of tampering with a consumer product and a $250,000 fine. She has admitted to the personal use of the Fentanyl filled syringes and filling the used ones with saline and swapping them. The arrest affidavit claims 5,000 patients may be at risk for exposure to the disease. Another 1,000 patients at the Audubon Surgery Center in Colorado Springs may also be at risk. Parsons was fired by Rose in April for failing a drug test, after she tested positive for Fetanyl. She went to work at Audubon where she worked from May 4 until July 6 where she was eventually fired.

Denver's Rose Medical Center is Latest Hep C Outbreak

2009-07-09T01:16:18Z

Rose Medical Center in Denver is the latest site of a possible Hepatitis C outbreak. There are now 10 cases confirmed and It is thought as many as 5,700 patients were exposed by dirty needles. What makes this case unique is that irresponsible needle practices by trained technicians are not the cause of the outbreak. Instead a scrub tech stole syringes filled with Fentanyl, a narcotic, and then switched them with dirty saline-filled syringes. The scrub tech, Kristen Parker worked at Rose from October 21, 2008 until April. She was suspended April 13, and then fired after she failed a drug test by testing positive for Fentanyl. Kristen Parker is in federal custody and the U.S. Attorney's Office said she has admitted to stealing the Fentanyl filled syringes and replacing them with dirty used ones. If convicted of tampering with a consumer product and other charges, she faces up to 10 years in prison and a maximum $250,000 fine on the most serious charge of tampering. Hepatitis C is a blood-borne disease that can cause serious liver problems, including cirrhosis or liver cancer. The illness is treatable, but there is no cure. Symptoms can include nausea, diarrhea, fatigue, pain and jaundice.

Admitted Illegal Drug User Exposed Thousands to Hep C

2009-07-08T19:04:40Z

Rose Medical Center is offering free testing for hepatitis C for patients who underwent surgery at the main hospital or the Wolf Building between October 21, 2008 and April 13, 2009 where a former technician may have exposed thousands. The technician, Kristen Parsons, is charged with switching her used dirty syringes, refilled them with saline solution, for ones containting the powerful painkiller and narcotic Fentanyl. Hospital officials said they were aware of Parsons Hepatitis C when she was hired. The Centers for Disease Control and Prevention estimates more than 8,000 people a year die from hepatitis C-related liver disease. The CDC also states that for every 100 people who contract the disease, 75 to 85 will develop a chronic infection. About 60 to 70 will develop chronic liver disease. About five to 20 will develop cirrhosis over a period of 20 to 30 years. Between one and five will die of liver cancer or cirrhosis.

Former Alabama Judge Charged with Legal Malpractice

2009-07-03T19:55:13Z

In an unusual, and perhaps unique, development, an aggrieved party to a case has filed a lawsuit against the judge who presided over the case. The case involves the estate of a deceased individual who seemingly had no heirs and no will, where the Judge (with assistance from an attorney representing a friend of the deceased) awarded fees to both the attorney and the personal representative in the amount of $450,000 each.

]]> These awards came after several questionable actions. The attorney and the judge insisted the petition to administer the estate be filed in the county other than the county where the deceased lived and that estate assets be moved to that same county to create jurisdiction--jurisdiction in the county for the judge being charged. The Judge also instructed the representative to write a check payable to the Judge in the amount of $1,800,000 which the representative did based on advice of her then attorney. The attorney also "suggested to the representative that it would e a good idea to pay him cash in the amount of $7,000 to pay for half of a gift to the Judge."

The Judge was found guilty in the criminal case but has appealed and is free on bond.

In a separate but related case, the Probate Judge ordered both the representative and the attorney to repay the fees received from the estate after six first cousins and legal heirs to the estate were identified.

A case recently filed by the representative against the former judge alleges legal malpractice, conspiracy, breach of fiduciary duty, outrage, negligence, wantonness, fraud and suppression. The representative says she had to
· mortgage her home
· borrow money from family and
· "deplete her assets" to pay monies back to the estate, with interest, and to pay IRS penalities and interest for late filing of the estate tax return
· pay monies unnecessarily to the defendants including an the attorney, an accountant and the Judge
Further, the representative said "she has been investigated by the Alabama Bureau of Investigation and the Attorney General's Office, subjected to public ridicule and scorn, suffered personal embarrassment and experienced severe emotional distress as a result of the conduct, misconduct and malpractice of the defendants."

“I have had enough!”

2009-06-30T00:22:19Z

Clearly the Denver judges couldn’t take the fighting between the attorneys anymore. After months of discovery warfare, the judge issued an order that the bad actors (the Defendants) would be held liable for the wage claims, leaving only the amount of the damages award to be determined. Pinkstaff v. Black & Decker (U.S.) Inc, (No. 09SA19, June 29, 2009). The Supreme Court reversed, holding that the trial court had adopted the harshest sentence first, rather than trying less drastic sanctions for the behavior. As the Supreme Court explained, courts are - first and foremost - a place to try claims on the merits, not to punish bad actors by way of defaults. The matter now goes back to the trial court for further proceedings. I wonder what the trial judge will try next.

Court Rejects City’s Efforts to Avoid Discrimination Claims

2009-06-30T00:14:47Z

Today, the United States Supreme Court held that the City of New Haven, Connecticut violated Title VII, when it refused to certify the results of its promotional exams, which advanced almost only white firefighters for promotion. Ricci v. DeStefano (No. 07-1428, June 29, 2009). New Haven is made up of almost 60% minorities, but only a very small percentage of the promotion list included minority candidates. The city was understandably concerned about being sued for disparate impact discrimination. The Supreme Court rejected the City’s concern and actions, holding that the City could not demonstrate that it would have been sued if it hadn’t thrown out the test.

]]> Justice Ginsberg dissented, predicting that the decision in Ricci “will not have staying power” because the majority deviated from long standing and well established prior case law. In her dissent, Justice Ginsberg asked, “why did such racially skewed results occur in New Haven, when better tests likely would have produced less disproportionate results?”

The Ricci decision follows closely on the heels of the Gross decision, where the Supreme Court did away with the “mixed motive” standard for age discrimination cases and, instead, now requires a showing that “but for” age, the employer would not have taken the adverse action.

Middle Managers' Right to Compete Limited

2009-06-25T16:03:53Z

Covenants not to compete can severely limit a person’s ability to pursue their chosen career path, if they can’t use their knowledge, skill and experience when that person leaves one employer to go to work for another. Depending on the circumstances, a person can be precluded from competing for a period generally ranging from 6 months to three years. That’s why the Colorado statute presumes that such covenants are void, unless the employer proves it to be valid under one of the four exceptions, as well as reasonable as to time and geographic coverage. Today, the Court of Appeals appeared to take a step toward loosening the statutory standard for determining whether a covenant is valid under the “executive and management personnel” exception.

]]> In Dish Network Corp. v. Christopher Altomeri, the Court held that a mid-level manager who supervised fifty employees, was otherwise at the top of the compensation scheme, was employed in a decision-making capacity, and had a certain level of autonomy, was “management personnel” under section 8-2-113(2)(d) of the statute. This decision appears to be at odds with other recent decisions of the Court of Appeals, that have limited the statute’s application to “key personnel.”

The Supreme Court will have to wade in at some point and tell us what this exception means. In the meantime, employees who are presented with a covenant should think hard before signing. And, it never hurts to get advice from a competent employment attorney about what that covenant really means and how it might be applied.

BURG SIMPSON FILES NEW LAWSUIT REGARDING CONTAMINATED HEPARIN

2009-06-24T19:38:39Z

On June 23, 2009, the attorneys at Burg Simpson filed a complaint on behalf of their client, Barbara Bender, against Baxter Healthcare Corporation, Baxter International, Inc., Scientific Protein Laboratories, LLC, and American Capital, Ltd. in the pending heparin products liability litigation.

]]> In January 2008, Ms. Bender was admitted to the hospital for coronary artery bypass graft surgery. During the surgery, Ms. Bender received multiple doses of heparin to prevent blood clots. Immediately after the administration of heparin during the surgery, Ms. Bender suffered a serious adverse reaction to the heparin, including, but not limited to, severe hypotension, cardiogenic shock, hypokalemia, severely decreased platelet count, and respiratory distress requiring prolonged intubation. She also suffered a stroke. The heparin was contaminated.

As a result of the injuries Ms. Bender suffered following the administration of contaminated heparin, she remained hospitalized for a month and was required to undergo physical therapy, occupational therapy and speech therapy for three months. Ms. Bender continues to suffer permanent injuries including, but not limited to, right sided hemiparalysis, difficulty with speech, and cognitive issues regarding memory loss and reading comprehension.

Attorneys at Burg Simpson are representing individuals harmed by contaminated heparin and are actively involved in the national leadership of these cases. Please contact Burg Simpson if you have questions concerning heparin, and visit our website at heparininjurylawyers.com

Age and Adverse Employment Decisions

2009-06-18T22:08:06Z

http://www.burgsimpson.com/age.htmlToday, the United States Supreme Court created a new rule of law, making it more difficult for employees to make a claim for age discrimination in employment. In Gross v. FBL Financial Services, Inc., the Supreme Court held that in order to have a viable claim, the employee must show that age is the motivating factor for the adverse employment decision. In other words, "but for" the employee's age, the employer would not have taken the action it did. This is a significant change in the law. Under prior cases, the employee only needed to show that age was one factor contributing to the adverse employment action. The decision was a close one, with 4 of the 9 Justices dissenting.

]]> Employees often have a difficult time proving that they have been discriminated against based on age. Proving that age discrimination is the only reason makes that burden more difficult. Congress has stepped in to change other decisions, when it appeared that the Supreme Court had narrowed the law too much. For example, recent legislative changes have substantially broadened employee protections in the Americans with Disabilities Act. We may see Congress stepping in to change this law as well.

Heparin Contamination Worries Not Over for Baxter

2009-05-29T22:39:38Z

Last week, three patients in a Delaware hospital, each of whom received Heparin, a blood thinner distributed by Baxter International Inc., suffered intra cranial bleeding. Baxter insists that the injuries, while unfortunate, are not related to the quality of its Heparin product.

]]> Heparin, an anticoagulant used to decrease the clotting ability of blood, is used to treat blood clots in the veins, arteries and lungs. It is also used in some surgeries to prevent the formation of blood clots. In January 2008, increased complaints to the FDA of serious allergic reactions to Heparin were traced to contaminated Heparin distributed by Baxter International. The contaminant, known as oversulfated chondroitin sulfate (OSCS), can lead to death and serious injury, including low blood pressure, abdominal symptoms and shortness of breath. On February 28, 2008, Baxter recalled all of its multi-dose and single-dose vials of Heparin and HEP-LOCK flush products.

Also last week, the FDA issued a second Form 483, Notice of Inspectional Observations, to Scientific Protein Laboratories (SPL), citing six violations of Good Manufacturing Practices (GMP), including failure to follow safety procedures regarding the cleaning of equipment used in the manufacture of Heparin and failure to follow up on known reported deficiencies of material suppliers. SPL was the supplier of the component ingredients in the contaminated Heparin distributed by Baxter International.

YAZ - Not All It’s Made Out To Be

2009-05-29T22:20:51Z

YAZ, a birth control pill manufactured by Bayer Healthcare, often is touted not only as effective in the prevention of pregnancy, but also as effective in the treatment of premenstrual dysphoric disorder (PMMD) and acne. But in October 2008, the FDA deemed Bayer’s advertisement of YAZ, known for its slogan – “Beyond Birth Control”- misleading and in violation of federal regulations.

]]> According to the FDA, Bayer’s ads overstated the effectiveness of YAZ and understated its risks. Bayer’s ads claimed YAZ was effective in treating the symptoms of premenstrual symptoms (PMS), when in fact YAZ was not approved for the treatment of PMS. The FDA also concluded that YAZ has not been proven as a treatment for severe acne, and that Bayer’s advertising of YAZ as a treatment for acne of all severities was misleading. Most critically, the FDA found that the ads failed to adequately disclose the serious risks associated with YAZ. YAZ has additional risks because the progestin, drospirenone, can lead to hyperkalemia (high potassium levels), which may result in serious heart and health problems. In fact, adverse events, such as heart attacks, strokes, blood clots, and even death have been reported to the FDA.

Therefore, the FDA ordered Bayer to cease the misleading advertisements and requested Bayer to submit a plan for the dissemination of truthful information regarding the use and effectiveness of YAZ. These corrective advertisements, reported to cost Bayer $20 million, began in February 2009 and are scheduled to run through July 2009.

Assisted Living Facility Falsified Care Records for TBI Victim

2009-04-07T04:06:19Z

The widow of a 36-year-old traumatic brain injury victim secured a landmark verdict of $11 million when he died after ingesting foreign objects while under the care of an assisted living facility. As a result of a car accident, Earl Scherrer suffered a severe TBI. He remained in a coma for 16 months. After emerging from his coma his wife worked with him day after day helping him to slowly start to speak. After many hours of devotion to his care and recovery she was forced to return to work and had to rely on assisted living and residential facilities to provide his 24-hour care. After placing him, a month later she received a call saying her husband had been vomiting. He died in her arms. Autopsy results showed a number of items including plastic bags, unopened catsup packets, candy wrappers and paper towels were found in his stomach and small intestines. During the subsequent negligent death trial it came to light that the facility entered many false notations in his chart claiming care was given on the days that Mrs. Scherrer had him at home. The verdict included $2 million for the decedent, $5 million for the wife and $4 million in punitive damages. It was the largest verdict ever awarded against an assisted living facility in the United States.

Hepatitis C Scare in Nevada Spurs Changes to Malpractice Caps

2009-04-03T23:29:21Z

The hepatitis C scare in Southern Nevada has played a crucial role in the introduction of an Assembly bill that would remove the medical malpractice caps limiting pain and suffering damages to $350,000 that was instituted in 2004. The bill aims to increase filing time limits as well that will allow victims' attorneys to bring a case to trial in five years rather than two. Assemblywoman Sheila Leslie, D-Reno said that the hepatitis C crisis serves as a reminder that there must be "more effective recourse for lives that have been ... negatively affected by a doctor." The Endoscopy Center of Southern Nevada is at the center of the hepatitis C scare because of its dangerous injection practices that led to nine people being infected with the disease. An additional 50,000 patients were told to get tested for further infectious diseases according to the Southern Nevada Health District. Health officials say that more than 100 others may have contracted hepatitis at the clinics.