Legal Media Matters

Patent infringement lawsuit filed by St. Louis-based manufacturer US Ring Binder against retailer Staples

NEWS RELEASE

April 29, 2008

St. Louis – A patent infringement lawsuit has been filed in a St. Louis federal court on behalf of St. Louis-based manufacturer US Ring Binder against the Framingham, Mass.-based retailer Staples.

Filed on April 25 in the U.S. District Court for the Eastern District of Missouri, as detailed in the complaint, US Ring alleges that Staples in its product line of Binders called collectively “Better Binders ™” infringed on a patent developed and owned by US Ring.

The plaintiff seeks the enjoinment of further patent infringement, treble damages and the impounding and destruction of all infringing products.

The suit was filed by Anthony G. Simon and Timothy E. Grochocinski with the Simon Passanante law firm.

Simon noted that US Ring, headquartered in the St. Louis area, has been in business for more than 100 years. “US Ring and its predecessor have a long history of designing and developing innovative products and are leaders in securing United States patents in the Ring Binder industry with some patents dating back to 1907. It invests heavily in its intellectual property and will take appropriate action when it feels its rights have been violated.”

St. Louis-based Simon٠Passanante PC handles intellectual property and commercial litigation cases nationwide. For more information, contact Anthony G. Simon at 314-241-2929 or e-mail asimon@simonpassanante.com.

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Media contact: Geri L. Dreiling
Legal Media Matters LLC
314.743.3851 or 314.520.3897
legalmediamatters@sbcglobal.net

Suits filed by St. Louis firms in the news

The Associated Press reported yesterday that eight lawsuits have been filed against Bayer AG over the controversial blood-clotting drug Trasylol.

The suits were filed in Florida federal court by attorneys with the St. Louis-based law firms Carey & Danis and The Lowe Law Firm. Brought on behalf of Trasylol (aprotinin) victims and their families, the suits allege that Bayer sold an unsafe drug and failed to warn of the risks associated with its use.

Eight lawsuits filed against the maker of Trasylol

NEWS RELEASE

April 22, 2008

St. Louis – Eight lawsuits have been filed in a federal court in West Palm Beach, Fla., against Bayer AG, the maker of the anti-bleeding drug Trasylol.

The lawsuits were filed April 17 on behalf of alleged Trasylol victims and their families for injuries and deaths that occurred in California, Georgia, Indiana, Florida, Missouri, New Mexico and Wisconsin between 2000 and 2007. Specifically, the suits allege that:

On April 27, 2000, Nada McIntosh was given Trasylol during open-heart surgery at St. Mary’s Medical Center in Madison, Wis. Soon after the surgery, kidney failure developed, and McIntosh died on May 8, 2000. Suit was filed on behalf of her next of kin, Sandra Boxrud.

On May 29, 2002, Nina Roberts was given Trasylol during open-heart surgery at Orlando Regional Medical Center, in Orlando, Fla. Shortly after surgery, she experienced kidney failure and underwent dialysis. Suit was filed on her behalf.

On July 7, 2004, Ruthe Sherman was given Trasylol during open-heart surgery at the University of California at Los Angeles Medical Center. The day after surgery, she experienced kidney failure and underwent dialysis. She died on Aug. 2, 2004. Suit was filed on behalf of her children Judy Sherman and Robert Sherman.

On Dec. 16, 2005, Samuel Nakis was given Trasylol during open-heart surgery at St. Luke’s Hospital in Chesterfield, Mo. Shortly after the surgery, kidney failure developed, and Nakis underwent dialysis. He died a short time later. Suit was filed on behalf of his widow, Genevieve Nakis.

On June 19, 2006, Dorothy Gallipeau was given Trasylol during open-heart surgery at Hoag Memorial Hospital Presbyterian, in Newport Beach, Calif. She experienced kidney failure the day after surgery and died less than a week later. Suit was filed on behalf of her son Shawn Gallipeau.

On Oct. 19, 2006, Richard Clark was given Trasylol during open-heart surgery at Presbyterian Hospital in Albuquerque. Soon after surgery he experienced kidney failure. Clark died the day after surgery. Suit was filed on behalf of his widow, Karla Clark.

On Feb. 6, 2007, James McLendon was given Trasylol during surgery to replace a heart valve at Atlanta’s Emory Crawford Long Hospital. Shortly after the surgery, kidney failure developed. McLendon died a week after surgery. Suit was filed on behalf of his widow, Kathy McLendon.

On July 3, 2007, Marcia Moyer was given Trasylol during open-heart surgery at The Indiana Heart Hospital, in Indianapolis. Soon after surgery, kidney failure developed, and Moyer must now undergo dialysis. Suit was filed on her behalf.

The suits were filed in the U.S. District Court for the Southern District of Florida, pursuant to a transfer order issued by the United States Judicial Panel on Multidistrict Litigation. The plaintiffs are represented by St. Louis lawyers John J. Carey of Carey & Danis and Jeffrey J. Lowe of The Lowe Law Firm.

The suits claim that Bayer failed to warn prescribers and consumers of the dangers associated with the drug, defectively designed the drug, fraudulently concealed the dangers of the drug, breached the implied and express warranties and violated various state laws. The plaintiffs seek compensatory damages and damages for aggravating circumstances.

The U.S. Food and Drug Administration approved Trasylol (also known as aprotinin), a clotting drug used to prevent bleeding, in 1993. On Jan. 20, 2006, an article suggesting a link between Trasylol and renal toxicity was published in the medical journal Transfusion. Later that same month, the New England Journal of Medicine published an article, co-authored by Dr. Dennis Mangano of the nonprofit Ischemia Research and Education Foundation, linking Trasylol to a higher risk of stroke, heart attack and kidney failure.

In the fall of 2006, an FDA advisory board met to decide whether the warning on Trasylol needed to be changed. At the meeting, Bayer failed to disclose the findings of a Trasylol study it had funded. In that study, Dr. Alexander Walker—a professor at the Harvard School of Public Health—reviewed the hospital records of 67,000 patients and found that those given Trasylol had a risk of death 64 percent higher than that of patients who received a comparison drug. It wasn’t until November 2007 that the drug was finally pulled from the market.

On Feb. 21, the New England Journal of Medicine released the study by Walker and a second study, conducted by Duke University Medical Center researchers. Both showed that patients given Trasylol during heart surgery were more likely to die than patients given a comparable drug.

Carey & Danis, LLC is a national law firm based in St. Louis that aids victims of corporate abuse, greed and neglect. For more information, contact John J. Carey or Joseph Danis at 314-725-7700 or e-mail jcarey@careydanis.com.

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Media Contact: Geri L. Dreiling
Legal Media Matters LLC
314.743.3851 or 314.520.3897
legalmediamatters@sbcglobal.net

LMM story roundup

The big news today in St. Louis, and across much of the Midwest, is the earthquake. For those of us who live in the middle the country, when windows rattle and the earth rumbles, we think it is time to grab our video cameras, rush outside and try to capture some great tornado footage. But that wasn’t the case this morning.

Although earthquakes in this part of the country are possible, it is still a surprise when one hits.  Here are some other stories that might leave you astonished, dumbfounded or just simply scratching your head in disbelief.

“Let them eat cake”

Bloomberg News reports that despite objections from the U.S. government, a bankruptcy judge has approved a $197 million payout to the lawyers and other professionals involved in the bankruptcy case of St. Louis-based Solutia Inc.

The U.S. Trustee called some of the fees, such as a request from consultant Rothschild Inc. to have a $1,003.14 meal reimbursed, exorbitant.

But U.S. Bankruptcy Judge Prudence Carter Beatty in Manhattan disagreed.

Bloomberg reporter Tiffany Kary wrote, “Beatty also approved most expenses, saying that lawyers were obligated to take car services so they wouldn’t get sweaty, and treat clients to meals that weren’t ‘hot dogs.’”

Beatty also told the U.S. Trustee:

“I’m not prepared to dock the fee applications for these issues. [A] lot of what I see is penny-ante moralism. People getting moral about technical issues.”

Of the $197 million approved, $57 million is going to the New York-based law firm Kirkland & Ellis. Meanwhile, retirees can expect to receive half of that amount -- 70 percent of their $35 million pension claim – or $24.5 million.

“Fight for your right to party…or go on a vacation…or attend a funeral.”

For solo and small firm lawyers, getting time off for a vacation, family illness, wedding, childbirth and even a funeral can be a real struggle. A recent survey from the Missouri Bar’s Solo and Small Firm Committee on the topic elicited the following comments:

“I had a family vacation cruise (non-refundable) set in March 2006 and the trial rolled up on the docket for that week. It was (location omitted) County and as luck would have it we ended up moving from #24 into the top 3. I filed for a continuance based upon the vacation. The judge denied the request and required me to either be at trial or dismiss without prejudice. I dismissed.”

“There was a federal judge…who denied a consent motion for a continuance (for a trial) that was set during one of the attorney’s daughter’s Spring Break from college. He had pre-paid cruise tickets. The ‘other side’ appeared for informal matters with the attorney who requested the continuance. The judge said, ‘There are no holidays for the hogs. Motion denied.”

“My wife had cancer for the second time and was scheduled for surgery. My opponents consented to the continuance. The Judge would not continue the case. He told me, ‘There was nothing you could do to help.’ He wanted to hold me in contempt.”

“My mother was dying of cancer and had been for many months. I had a trial set for a Monday morning…and on [the] Friday [before], filed a motion for continuance because the hospice people told us that Mother would not last more than a few days….The opposing counsel called the judge and told the judge that he…did not object to the continuance. The judge nonetheless made me come back to (location omitted), appear before him on Monday a.m., request the continuance which he then granted. To comply, I came back Sunday afternoon and missed my mother’s last conscious hours. She went into a coma Sunday night and died Wednesday morning.”

Now some solo and small firm lawyers in Missouri are pushing for a rule that would require courts, judges and opposing counsel to accommodate reasonable requests for time off for vacations, family illnesses, childbirth and weddings.

According to Holden, Mo.-lawyer Karl Timmerman, the proposed Missouri Supreme Court Rule 19, “Protected Attorney Vacation” is currently being considered by the Missouri Bar’s legislative and civil rule committees. He expects that some type of vacation rule will eventually be enacted. Timmerman, who is also a candidate for circuit judge in Cass & Johnson County, has written about the topic on his blog, “Friday Night Ramblings.”

Denise Henning featured in Missouri Lawyers Weekly’s article of the week

Kansas City lawyer R. Denise Henning of The Henning Law Firm was featured in the article “Widow awarded $3.5 million after death of husband, son.” The story is the online article of the week for the April 14 issue of Missouri Lawyers Weekly.

The article discusses an arbitration award Henning won on behalf of Doris Brandt whose husband and 9-year-old son died when their car hit a guardrail near the Stadium Boulevard exit in Columbia. The guardrail punctured the vehicle, killing Carl Brandt, who was driving, and his son, David, who was seated directly behind him.

Henning told reporter Kyle Lewis:

“[Mr. Brandt] was the only one working in the family, so not only was half of their family wiped out but also their livelihood because he was the one supporting the family.”

Henning filed a wrongful death case against the Missouri Highway & Transportation Department. A three-judge panel awarded the widow $3.5 million. The award was reduced to $1.875 million because of Carl Brandt’s comparative fault. Pursuant to state sovereign immunity caps, the recovery amounts to $710,792.

LMM story roundup

If you’re stranded at the airport waiting for a mechanic to figure out if your plane is safe to fly and you’re looking for something to occupy your time, here are a couple of stories to check out.

Arbitration clauses and nursing homes

First up is an article in today’s issue of the Wall Street Journal titled “Nursing Homes in Bid to Cut Costs, Prod Patients to Forgo Lawsuits.”

For the elderly, entering a nursing home can mean giving up certain a level of independence, privacy and freedom. Now, it seems, that’s not all they’re being asked to relinquish. Increasingly, nursing homes are demanding that the patients and their families give up their right to sue over poor treatment.

That’s because in the late 1990s, the families of nursing home patients were winning multi-million dollar damage awards in cases filed over negligent care. In an effort to curb the awards and take the cases out of the hands of jurors, nursing homes turned to mandatory arbitration.

The strategy appears to be paying off. According to a recent report released by Aon Global Risk Consulting, legal costs and claims are now down.

But the trend toward arbitration isn’t without controversy. So much so, writes reporter Nathan Koppel, that the American Arbitration Association generally refuses the cases. The American Health Lawyers Association also avoids them. Some doubt that the patients are capable of understanding the legal ramifications of the clauses. Contracts that require patients to agree to the clauses in order to gain admittance raise troubling questions about unequal bargaining power.

One of the attorneys interviewed for the story is Kansas City lawyer Tim Dollar. Dollar represented the family of a woman who died after repeated falls from her wheelchair. The family alleged that a lap restraint would have prevented the falls. Even though state regulators had previously cited the nursing home for failing to adopt procedures that prevent falls, the arbitrator refused to award punitive damages. Dollar told the Wall Street Journal that if the case had been decided by a jury, it could have added $3 million to the $725,000 award.

The Wall Street Journal also notes that states are divided on the question of whether the arbitration clauses are enforceable. If you’re a reporter, this might offer an opportunity to localize the story.

For more information, check out the Chattanooga Times Free Press, a news release from the American Association for Justice, and the Fellows & Blake web page “How do I pick a nursing home for my loved one?”

Securities class actions might be on the rise

In other news, class action lawyers and journalists who cover class actions might want to read, “More Securities Cases, Higher Damages Predicted by Accounting Firm Experts,” written by the ABA Journal’s Martha Neil.

The accounting firm PricewaterhouseCoopers predicts that securities class action litigation will rise in 2008. The subprime mortgage crisis is one reason for the increased filings. The willingness of institutional investors such as unions and pension funds to step in as plaintiffs helps explain the rise in damage awards.

The PricewaterhouseCoopers report was summarized at a meeting yesterday in Chicago.

Although not mentioned in the article, auction-rate securities class action cases may also be on the rise this year.

Simon Passanante attorney featured in Missouri Lawyers Weekly

Simon Passanante attorney John Campbell was featured in the article “Consumer laws a boon to class action plaintiffs,” which appeared in the April 7 issue of Missouri Lawyers Weekly.

The front-page story discusses class action lawsuits that make use of the Missouri Merchandising Practices Act. The state consumer protection law, also known as an unfair and deceptive businesses practice statute, allows plaintiffs to sue for defective products or services.

In the past three years, Simon Passanante has used the law to file suits against payday lenders, Charter Communications, debt adjusters and a Colorado dairy that allegedly mislabeled its milk as organic.

Campbell told reporter Allison Retka, “The reason the UDAP statutes are so useful is that they don’t require individual proof of reliance or intent to rely because, as you can imagine, if you had to prove that, you could never really have a class action.”

Medical malpractice CLE

Simon Passanante lawyer Amy Collignon Gunn and Brad L. Blake of Fellows & Blake are two of the featured instructors for an upcoming seminar, “Successful Medical Malpractice Suits.”

Sponsored by the National Business Institute, the seminar is aimed at helping lawyers assess prospective cases from the perspectives of both plaintiff  and defense, determining when and how to use expert consultants, identifying potential conflicts of interest, effectively using a comprehensive checklist during the prelitigation process, employing summary judgment as a settlement strategy, assessing hospital and institutional negligence and understanding when right to die and informed consent come into play.

The seminar is scheduled for 9 a.m.-4:30 p.m. April 22 at the Ritz Carlton St. Louis. Check-in begins at 8:30 a.m. The seminar, which costs $349, counts for 7.2 hours of Missouri continuing legal education, including 1.2 ethics hours. The Illinois MCLE board has approved the seminar for 6 hours of CLE credit, including 1.0 hour of ethics credit.

LMM Story Roundup

Today’s issue of the Wall Street Journal features a story that lawyers and legal journalists won’t want to miss: A Wal-Mart video archive has become a “must stop” destination for trial lawyers.

The front-page article “Candid Camera: Trove of Videos Vexes Wal-Mart,” written by Gary McWilliams, tells the story of Flagler Productions, a small video-production company in Lenexa, Kan. For 30 years the company captured footage of Wal-Mart annual meetings, sales meeting and other corporate events for the retail giant. Two years ago, Wal-Mart stopped using the company and nearly put it out of business.

But the parties never prepared or signed a written contract covering ownership rights. Now, Flagler says, it owns the video archives. To survive, the company has opened up the footage to researchers, documentary filmmakers, historians, union activists and lawyers who are willing to pay $250 an hour for access to the archives.

The videos were recently mined by a product liability lawyer who represents a boy hurt by an exploding gas can. The attorney found clips of executives spoofing the safety of the gas cans and claims that the footage shows that the retailer could have foreseen the risks associated with the product.

A lawyer pursuing a sex discrimination lawsuit has uncovered clips of Wal-Mart’s founder discussing the lack of women executives and a meeting discussing sexual harassment cases. Another lawyer shelled out $15,000 for video clips that might be important in future cases.

In other news, the Food and Drug Administration reports that the number of deaths linked to an allergic reaction to the blood thinner heparin since January 2007 has tripled. The FDA also sent a warning letter to GlaxoSmithKline, the maker of Avandia, stating that the company had failed to file regular reports about its clinical trials involving the diabetes drug.

Trasylol lawsuits transferred to a Miami federal court

The federal lawsuits filed against Bayer AG over the anti-bleeding drug Trasylol have been consolidated and transferred to a Miami federal court.

On April 7, the transfer order was issued by the United States Judicial Panel on Multidistrict Litigation. Because of the national scope of the litigation, the common factual questions regarding the drug’s safety profile, and the similar questions raised over the adequacy of the warnings provided by Bayer, the panel concluded that consolidation was appropriate.

In addition, the panel ruled that the U.S. District Court for the Southern District of Florida is a convenient forum. The Miami metropolitan area is easily accessible and the district has a low number of MDL dockets, the panel wrote. It assigned the litigation to U.S. District Court Judge Donald M. Middlebrooks.

On March 10, John J. Carey of Carey & Danis and Jeffrey J. Lowe of The Lowe Law Firm filed suit in the U.S. District Court for the Eastern District of Missouri on behalf of a widow whose husband died of kidney failure after open-heart surgery.

On Dec. 16, 2005, Samuel Nakis, 81, underwent open-heart surgery at St. Luke’s Hospital in Chesterfield, Mo. During the surgery he was given Trasylol (also known as aprotinin), a clotting drug used to prevent bleeding. Shortly after the surgery, Nakis experienced kidney failure and underwent dialysis. He died a short time later.

The suit alleges that Bayer failed to warn prescribers and consumers of the dangers associated with the drug, defectively designed the drug, fraudulently concealed the dangers of the drug, breached the implied and express warranties and violated the Missouri Merchandising Practices Act. The suit seeks compensatory damages and damages for aggravating circumstances.