NICU – Neonatal Intensive Care - Digital Publishing

2011 LUSA 175 / June 2011 Lawyers USA / Page 27Home video helps win record malpractice verdictContinued from page 16spend a lot of time debating the medical literatureon the syndrome.“It’s a very theoretical, scientific researchbasedcondition,” she said.Instead, Nastri agreed there was inflammationin the placenta but argued that it wasa common condition and existed 12-24 hoursbefore the birth, strengthening her argumentthat if Daniel had been delivered two daysearlier, he would have been healthy.Defense attorney James Rosenblumcalled the verdict a “huge miscarriage ofjustice” and a “hugely emotional verdictcontrary to the weight of the evidence.”Specifically, he said that the plaintiff’s expert“made significant admissions thattreatment was proper” and gave no indicationthat a delivery two days earlier wouldhave been better.Rosenblum said he is working on posttrialmotions that he will file next week anddepending on the outcome plans to appealas well.Challenging juryNastri had a few concerns about the juryfrom the outset. Not only was the foreman23 years old, but the entire jury was male.“They hadn’t had babies, they hadn’tseen babies delivered, and many did nothave children of their own. It was a challengeas to how to present the case to thoseguys,” said Nastri.Even the terminology of pregnancy andfemale anatomy were “words these guysdon’t hear every day,” she said.At one point, in talking about a normalvaginal delivery, Nastri said she got a vibefrom the young male jury as if they werethinking: “Did she just say vagina?”The jury got a laugh when Dominic testifiedthat he takes over caring for Daniel duringweekends to give Cathy a break so shehas time to clean the house. They stoppedlaughing when he explained that after whatshe goes through during the week caring forDaniel, cleaning the house is a break.Dominic, an immigrant from Italy, worksas a part-time masonry contractor, andthe couple is hard-pressed to afford healthinsurance.Daniel, who is now 8 years old, made aone-minute appearance in court while oneof the plaintiff’s experts was on the stand.In closing arguments, Nastri focused onkeeping it simple for the jury.“Our theme was, when you have a highriskpregnancy, you don’t want to take a riskat the last minute. The doctor’s job is toguide the pregnancy to a safe conclusion.The last thing you want to do is guide themother to the edge, then step back and lether fall off the cliff,” Nastri said.She also delivered a message that Cathyasked her to tell the jury: “As bad as everyonethinks this is, he is a gift to us. When hewas born, I was not the world’s most patientperson, but he has taught me to be.”“It was important for the jury not to thinkthat they didn’t want this baby,” Nastri said.Plaintiffs’ attorneys: Kathleen Nastriand James Horowitz of Koskoff, Koskoff &Bieder in Bridgeport, Conn.Defense attorney: James Rosenblum ofRosenblum Newfield in Stamford, Conn.The case: D’Attilo v. Viscarello; May 25,2011; Connecticut Superior Court, ComplexLitigation Docket at Waterbury; JudgeKevin Dubay.Questions or comments can be directed to thewriter at: sylvia.hsieh@lawyersusaonline.comUSA BRIEFSContinued from page 2drug is unsafe for widespread clinical use.”– Pat MurphyAlabama law limiting foodsuits moves forwardThe Alabama House of Representativeshas overwhelmingly passed the CommonSense Consumption Act, a bill that wouldprevent plaintiffs from filing suit againstfood retailers or restaurants.HB 193 “would prohibit lawsuits basedon claims arising out of weight gain, obesity,a health condition associated withweight gain or obesity, or other generallyknown condition allegedly caused by or allegedlylikely to result from long-term consumptionof food.”The far-reaching law covers “manufacturers,packers, distributors, carriers, holders,sellers, marketers or advertisers offood products.”The proposed legislation would not preventa suit against a business that made “amaterial violation of an adulteration or misbrandingrequirement prescribed bystatute or rule of this state or the UnitedStates of America” or “any other materialviolation of federal or state law applicableto the manufacturing, marketing, distribution,advertising, labeling, or sale of food.”The law would apply to all coveredclaims pending on the date it took effect,regardless of when the claim arose.State Rep. Mike Jones, Jr., who sponsoredthe legislation, told Forbes that thebill is intended to protect small restaurantsthat could be financially harmed bya lawsuit.“Ma and pa restaurants have a 4 percentprofit margin or less,” he said, and a lawsuitcould force such a restaurant out of business.“We’re saying you can’t sue if you ate thefood for a couple of months and gainedweight,” Jones said.The bill now moves to the state Senate,where a companion bill was also filed.– Correy E. StephensonPlavix cases start to pick upLitigation over the blood thinner Plavixis picking up momentum.About forty cases have been filed in NewJersey state court, and drug makers Bristol-MyersSquibb and Sanofi-Aventis areseeking mass tort treatment and consolidationof the cases.Thousands more wait in the wings andare expected to be filed in federal court inthe coming months, according to plaintiffs’attorneys.“I think it’s going to pick up a lot of steamin the next six months,” said Michael Millerof The Miller Firm in Orange, Va., who hasfiled a number of the cases.Mark Burton, a plaintiffs’ attorney atHersh & Hersh in San Francisco, said he hasseen an uptick in calls from potential plaintiffssince March of last year when the Foodand Drug Administration slapped a blackbox warning on the drug.Plavix, a popular drug generating $8 billionper year in sales, is commonly prescribedfor patients at risk of heart attacks.Plaintiffs allege that the drug is no moreeffective than aspirin, but carries muchgreater risks. They argue the manufacturersfailed to warn about the increased riskof heart attack, stroke and potentially fatalblood disorders.According to a complaint filed on behalfof 11 plaintiffs in Illinois state court, defendantsheavily marketed Plavix in televisionads touting it as a “super-aspirin,” whiletheir own studies showed that the risks topatients far outweighed any benefits.“We’re arguing Plavix has less efficacythan aspirin which is the generic and muchcheaper and safer alternative that costs 4cents a pill, compared to Plavix that sellsfor 4 dollars a pill,” said Miller, who doesnot represent the plaintiffs in the Illinoiscase, but makes identical allegations in otherfilings.– Sylvia HsiehProposed Virginia legalethics opinion would giveMedicare lien protectionA proposed Virginia legal ethics opinionprovides plaintiffs’ lawyers with newammunition in the battle for protectionfrom Medicare liens in personal injurysettlements.Insurance companies and the plaintiffs’bar have tussled as each side sought ashield against exposure for unpaid governmentliens. Medicare regulations emphasizethe government’s determination to collectfrom anyone involved in a personal injurysettlement if a payment obligation isoverlooked.The draft opinion not only determines itis unethical for a plaintiff’s lawyer to indemnifyan insurance carrier against anyunpaid liens, but also it also concludes aninsurance company lawyer is wrong toeven ask for indemnity.Plaintiffs’ lawyers hail the proposedopinion, LEO 1858, as a way to answer nowcommondemands of insurance companiesfor indemnity protection against possibleunpaid liens.The Virginia State Bar’s Standing Committeeon Legal Ethics is asking for publiccomments on the proposed opinion. Thedraft opinion is posted on the state bar’swebsite at VSB Ethics Counsel James M.McCauley said he has received only one officialcomment so far, but reaction generallyhas been favorable.The opinion notes eight ethics opinionsfrom other states, all of which found it unethicalfor the plaintiff’s lawyer to indemnifythe defendant’s insurer against debtsof the plaintiff.– Peter ViethA version of this story originally appearedin Virginia Lawyers Weekly, a sister publicationof Lawyers USA.Texas governor signs‘loser pays’ bill into lawTexas Gov. Rick Perry has signed into lawa measure that will limit personal injurysuits by levying some fees on plaintiffs andallowing some suits to be dismissed earlyin the process.Perry designated the “loser pays” bill atop priority of the legislative session, sayingTexas needs to crack down on frivolouslawsuits.The bill makes it harder to file personalinjury suits and penalizes claimants if theydon’t settle for more than they eventuallywin. Some plaintiffs who sue and lose willbe required to pay the court costs and attorneyfees of those they are suing. The lawalso creates expedited civil actions for casesworth less than $100,000. The measuregoes into effect Sept. 1.Perry said the changes are intended toreduce the cost of litigation while still allowinglegitimate cases to proceed.Business groups and the Texas MedicalAssociation, which wanted to protect doctorsfrom frivolous malpractice lawsuits,urged lawmakers to pass the legislation.But several trial lawyers’ groups and theAFL-CIO opposed the measure, arguing itwould give corporations the upper hand inlawsuits and prevent some individuals withlegitimate claims from filing suit.State Sen. Joan Huffman, the Senate sponsorof the bill, worked to negotiate a compromisebetween trial lawyers’ groups andbusinesses. The trial lawyers agreed to supportthe state senate version of the bill afterthe provision that allows judges to immediatelydismiss frivolous lawsuits was added.NHTSA investigating FordFreestyle accelerationFederal safety officials are investigatingcomplaints that the Ford Freestyle crossovervehicle can lunge unexpectedly when drivingat low speeds or idling.The National Highway Traffic Safety Administrationsays it has received 238 complaintsinvolving 2005, 2006 and 2007Freestyles. Eighteen minor crashes were reportedwith one minor injury.The agency said the seven-seat familyhaulers can lunge up to 10 feet when thedriver’s foot is not on the accelerator orfirmly on the brakes. Stepping on thebrakes firmly stops the car from moving.Details of the investigation are posted onNHTSA’s website. The probe began May 11and covers about 170,000 Freestyles. NHT-SA will decide if a safety recall is necessary.A Ford spokeswoman said the companyis cooperating with NHTSA as it reviews thematter.The only injury reported from the problemwas a knee bruise when a car collidedwith a pedestrian in a driveway. The persondidn’t need medical attention, accordingto NHTSA.Incidents of brief acceleration have beenreported in both forward and reverse gears,NHTSA said.Fla. lawmakers limit suitsagainst auto makersThe Florida house has approved a billthat makes it more difficult for injured plaintiffsto win product liability damages fromauto makers and other manufacturers.The measure (SB 142) was approved bya vote of 80-35 and will be sent to RepublicanGov. Rick Scott. It had previouslycleared the state senate.The bill, which the governor is expectedto sign, neutralizes the 2001 Florida SupremeCourt decision in D’Amario v. Ford, whichsaid that an auto maker can’t ask the jury toapportion fault between it and the driverwho caused the underlying accident because“the accident-causing fault of the driverwould not be relevant in crashworthinesscases in assessing a manufacturer’s neglectin designing an automobile or its parts.”According to the new law, juries wouldhave to “consider the fault of all persons whocontributed to an accident when apportioningdamages in a products liability action.”The legislation on the “crashworthinessdoctrine” was the focus of a lobbying duel betweentrial lawyers who represent plaintiffsand business interests led by Ford Motor Co.Democrats have argued the bill wouldshift medical costs for seriously-injuredcrash victims to taxpayers and that manufacturersshould be held accountable fortheir mistakes.