... and Justice for All

Tired Truckers Targeted By New Technology

Tired truckers posed a danger on our nation's highway and the National Transportation Safety Board is urging the adoption of new technologies.  Drivers drifting off because of fatigue poses great dangers and both old and new technologies can increase safety.  New technologies include a dash-mounted camera that would track and driver's eyelids and sound an alarm when detecting fatigue, alarms that would sound when a truck begins to veer and automatic brakes, a measure that requires further research.  Old technologies have also proven effective and their expanded use is also recommended; those technologies include rumble strips, which have been shown to reduce crashes by up to 60%.  The Board also urged that the National Highway Safety Administration step up its monitoring and enforcement efforts regarding the number of hours truckers can drive.

Robert L. Abell
www.RobertAbellLaw.com

Drugs Being Investigated Listed by FDA

The Food and Drug Administration (FDA) has begun posting quarterly lists of drugs that it is investigating for possible safety issues.  That a drug is listed does not mean that it has safety problems, just that a report has been received from a patient, doctor or even a drug company itself about a possible safety issue with a drug.  The FDA will list each drug and the general nature of the problem reported regarding it but will not detail the number of complaints about it or the seriousness of any of the events.  The current list can be seen by clicking here.

Robert L. Abell
www.RobertAbellLaw.com 

Pregnant and New Mothers Endangered by Proposed FDA Rule

Pregnant and new mothers are endangered by a proposed FDA rule that will allow drug companies to omit information on their warning labels about dangerous side effects of their products.  For leaving out this important information the drug companies would receive the prize of immunity from lawsuits through the doctrine of preemption.  That's justice under the Bush Administration: create a rule that allows drug companies to harm pregnant and new mothers and get away scot-free.  The ever-vigilant American Association for Justice has protested adoption of the proposed rule that you can read by clicking here. 

Robert L. Abell
www.RobertAbellLaw.com

Hospital Death Rates Online

Patients and their families may review online hospital death rates for heart attacks, heart failure and pneumonia.  The federal government's Centers for Medicare and Medicaid Services has posted the statistics at www.hospitalcompare.hhs.gov.  Also posted are statistics on the percentage of each hospital's patients getting quality care for various illnesses and ten measures of patient satisfaction. 

Robert L. Abell
www.RobertAbellLaw.com 

Beef Recalled By Whole Foods

Beef processed at Nebraska Beef, one of the country's biggest meat processors, was recalled by the Whole Foods Market on Friday.  According to a story in the Washington Post, it is the second time in two months that beef processed by Nebraska Beef had to be recalled owing to e coli outbreak concerns, "Whole Foods Recalls Beef Processed At Plant Long at Odds With USDA."  Last month more than 5 million pounds of beef processed by Nebraska Beef was recalled following an e coli outbreak in seven states.

Over the course of the last six years the USDA and Nebraska Beef have been on a merry-go-round of citations issued by the agency and lawsuits.  The citations have been for feces on carcasses, clogged meat wash sinks, and violation of regulations aimed at preventing spread of mad-cow disease,  The company has responded with lawsuits accusing the agency with bias. 

Nebraska Beef was awarded $7.5 million in tax subsidies by the Nebraska state government.  This while battling the USDA along with neighbors of the plant who have complained about manure from the plant being strewn in the streets.  In 2002, the National Labor Relations Board ruled that Nebraska Beef had violated federal law by its actions to prevent unionization of the plant's workforce. 

Robert L. Abell
www.RobertAbellLaw.com

U.S. Needs National Database of Replacement Joints

The United States needs to establish a national database, called a joint registry, to collect information on how patients receiving replacement hips or knees progress following surgery.  The absence of such a registry causes annually the waste of millions of dollars and untold and unnecessary suffering for patients because of a flawed product or technique.  Almost one million Americans each year receive replacement hips or knees. 

A joint registry would allow problem products or techniques to be more quickly identified and their use ended, which would reduce greatly "do-over" surgeries made necessary by the initial use of a flawed product or technique.  Precisely this scenario happened a few years ago in Sweden when a national registry alerted surgeons of a badly-flawed replacement hip and its use was terminated.  But in the United States its use continued for many more months generating great and unnecessary expense, not to forget the suffering of recipient patients. 

A registry would create a continuing monitor beginning with recording for each patient a number, the replacement joint used, the technique used and the doctor performing the surgery.  If the patient were to receive a replacement, the information would be recorded as well and this would facilitate identification of problem products and techniques.  As a new President and Congress take office in January, they would act wisely to have created a national joint registry.  Further information can be gleaned from an excellent article in the New York Times, "A Call For A Warning System On Artificial Joints." 

Robert L. Abell
www.RobertAbellLaw.com

Bush Administration Rules Protect Corporate Wrongdoing

    As part of its ongoing and to date very successful effort to insulate corporate wrongdoing from accountability, responsibility and liability, the Bush Administration has adopted since 2005 a total of 51 regulatory rules that preclude lawsuits arising from all sorts of everyday items including drugs, cars, railroads, medical devices and food.

    The legal doctrine is known as "federal preemption."  Here's how it works: say for instance the Food and Drug Administration (FDA) adopts a regulation outlining drug labeling and packaging.  However, the labeling and packaging causes confusion and, as a result, children are badly injured.  That's what happened to actor Dennis Quaid's newborn twins who were given massive doses of blood thinner at a hospital.  The Quaids filed a lawsuit in Illinois state court claiming that the manufacturer -- Baxter Healthcare Corp. -- was negligent n packaging different doses of the product in similar vials with blue backgrounds.  Under the doctrine of "federal preemption," however, the Quaids' suit could be barred because the manufacturer's compliance with a deficient federal regulation preempts any liability it might have for causing harm. 

    Earlier this year FDA Commissioner Dr. Andrew C. von Eschenbach publicly acknowledged that the agency "may fail in its mission to protect and promote the health of every American" and that "peril exists."  That admission followed on the heels of a report late in 2007 from the FDA Science Board that the agency does not have the capacity to ensure the safety of the nation's food, cannot adequately regulate the development of medical products based on "new science" and had many other materials failings. 

    Historically, state tort and liability lawsuits have been viewed as complementary to federal agency regulations.  But the Bush Administration has hit upon a successful formula to ensure not consumer safety but corporate immunity from responsibility and accountability: render the regulatory agencies unable to function and preempt any attempt to protect consumers.  The American Association for Justice and other groups are opposing mightily these efforts and you can learn more here.

Robert L. Abell
www.RobertAbellLaw.com

FDA Report Acknowledges Agency Cannot Protect American Public

    The Supreme Court seems certain to rule within the next year that FDA approval of a drug bars any type of lawsuit that the drug is dangerous and caused injury or death.   This seemingly inevitable ruling makes all the more important the FDA for the protection of the American public. 
    The FDA, as its own Commissioner has acknowledged and as a report presented by the FDA Science Board -- an advisory panel of scientists and industry experts -- chillingly warned, is not up to the task.  In a speech in March, FDA Commissioner Dr. Andrew C. von Eschenbach admitted that the agency "may fail in its mission to protect and promote the health of every American" and that "peril exists."  The commissioner merely echoed the findings of the FDA Science Board reporting, among other things, that the agency does not have the capacity to ensure the safety of the nation's food, cannot adequately regulate the development of medical products based on "new science," cannot fulfill its mission because its scientific base has eroded, its scientific workforce lacks sufficient capability and capacity and its information technology system is inadequate including internal e-mail systems prone to frequently breaking down.  To report is titled "FDA Science and Mission at Risk." 
    In view of the indisputable inability of the FDA to adequately protect the American public, it would seem that insulating from any possibility of liability and hence from responsibility those corporations subject to FDA regulation can serve only to undermine the public interest.  But sometimes that's just what the Supreme Court calls justice. 

Robert L. Abell
www.RobertAbellLaw.com