More Accidents in Fewer Miles?

Despite a slight decline in the total number of miles driven by trucks in 2010, the number of crashes in 2010 involving trucks increased by almost 10%!  This indicates that trucking companies may be combatting reduced workload by pressuring drivers to travel farther in less time, resulting in more truck accidents.

The number of truck-related crash fatalities in 2010 also increased – by 8.7% to 3,675. The data, which includes trucks weighing more than 10,000 pounds, was released by the National Highway Traffic Safety Administration (NHTSA) earlier this year.

When trucking companies fight so hard against just one more hour of rest, you realize that these companies apparently think its cheaper to crash into us—no matter the consequences—than to pay for a rested, alert and safe workforce.

You can read a summary of the federal “hours-of-service” regulations for commercial truck drivers here.

In separate developments, pharmaceutical giants Abbott Labs and Johnson & Johnson have recently been hit with fines and judgments in the billions of dollars for mishandling the marketing of certain drugs. Abbott Labs’ problems stem from their anti-seizure drug Depakote. Not content to rake in millions from the legitimate use of the drug, Abbott Labs admitted that from 1998 through 2006, it employed a specialized sales force to push Depakote to nursing homes for use in treating aggression and agitation in elderly Alzheimer patients. It also admitted that it marketed Depakote from 2001 through 2006 in combination with atypical antipsychotic drugs for use in treating schizophrenia. The problem with these practices?  Neither of these uses of Depakote was approved by the FDA and neither was supported by credible scientific evidence of their safety and effectiveness. After pleading guilty to criminal and civil charges, Abbott Labs agreed to pay criminal fines and civil settlements totaling $1.6 billion. U.S. Attorney Timothy Heaphy of the Western District of Virginia said, “Abbott’s misconduct exposed elderly nursing home residents and schizophrenia patients to serious side effects from a drug that was not proven effective, at a cost of hundreds of millions of dollars to government health care programs.”

Abbott Labs’ plea deal is just the most recent example of big drug companies being caught pushing their products for off-label, unsafe and scientifically unsupported uses. In April of this year, Johnson & Johnson was hit with a $1.2 billion verdict by an Arkansas state court judge for multiple violations of Arkansas’ Medicaid fraud laws. The verdict involves J&J’s long-term marketing of the antipsychotic drug Risperdal as a “chemical restraint” for use in nursing homes. The U.S. Department of Justice has alleged that the drug company illegally promoted this off-label use of Risperdal and engaged in an illegal kickback scheme with the nations’ largest provider of drugs to nursing homes. Johnson & Johnson promoted Risperdal for use as a chemical restraint even though studies showed the drug increased the risk of death in patients with dementia. The $1.2 billion verdict follows a $158 million settlement of a Texas lawsuit, a $258 million Louisiana verdict and a $1 billion settlement with the U.S. Department of Justice., all arising from the illegal promotion of Risperdal.

In November 2011, pharmaceutical giant Merck agreed to pay $950 million to settle criminal and civil claims brought about by the Department of Justice relating to its marketing of Vioxx. This widely used painkiller was pulled from the market in 2004 after a study revealed the drug increased the risk of heart attacks.

In October 2011, British drug maker GlaxoSmithKline reached a $3 billion settlement relating to its marketing of the diabetes drug Avandia. And in 2009, drug makers Pfizer and Eli Lilly reached settlements of $2.3 billion and $1.4 billion arising from their drugs Bextra, Lyrica and Zyprexa. These settlements are just a few among many multi-million dollar pharmaceutical settlements over the last few years, including:

AstraZeneca

Date: March 2011
Details: AstraZeneca agreed to pay $68.5M to 36 states to settle allegations that the company marketed its anti-psychotic drug Seroquel for off-label uses. The lawsuits also alleged that the company failed to adequately disclose the potential side effects of Seroquel to healthcare providers and withheld negative information contained in scientific studies regarding the safety and efficacy of the drug.

Novartis

Date: September 2010
Details: Novartis agreed to a $422.5 million settlement for its off-label promotion of Trileptal and other allegations relating to drugs Diovan, Exforge, Sandostatin, Tekturna and Zelnorm.

Forest Labs

Date: September 2010
Details: After marketing Levothroid, an unapproved thyroid drug, Forest Labs received a fine of $313 million. The settlement also covered Forest’s off-label promotion of Celexa for children’s use.

Allergan

Date: September 2010
Details: Allergan’s $600 million settlement with the Department of Justice was broken into two parts: $375 million in fines and $225 million in civil penalties, all of which stemmed from its off-label use of Botox for headaches, pain management and cerebral palsy.

Elan

Date: July 2010
Details: The Irish drugmaker was hit with a $203.5 million fine for its marketing of Zonegran, an epilepsy drug. Also, the company’s U.S. branch pled guilty to a misdemeanor and the company will enter into a corporate integrity agreement with the HHS Inspector General.

Johnson & Johnson

Date: April 2010
Details: Two of the drug maker’s subsidiaries received a $81 million penalty for off-label promotions of Topamax, an epilepsy drug.

AstraZeneca

Date: April 2010
Details: In the same week as the J&J settlement, AstraZeneca was hit with a $520 million penalty for its antipsychotic, Seroquel. The company allegedly misled doctors and patients about the drug’s safety.

Eli Lilly

Date: September 2009
Details: Thirteen states filed suit against Eli Lilly for Zyprexa marketing issues, but the company was ordered to pay $25 million to Connecticut in this ruling.

Merck/Schering Plough

Date: August 2009
Details: Merck and Schering-Plough agreed to pay $41.5 million to settle class-action lawsuits relating to their cholesterol drugs Vytorin and Zetia after a 2008 clinical trial showed that their drugs were no better at reducing plaque buildup than generic Zocor, a cheaper drug that had been on the market for years.

GlaxoSmithKline

Date: January 2009
Details: After seven years of off-label promotion on nine of its best-selling drugs, GSK was ordered to pay $400 million to the U.S. Attorney’s office in Colorado.

Eli Lilly

Date: January 2009
Details: In the first Zyprexa settlement, the Department of Justice leveled $1.4 billion in fines against Eli Lilly. Also, as part of the settlement, the company pled guilty to a misdemeanor violation of the Food, Drug and Cosmetic Act.

When will they learn?

Despite these record fines and settlements, the big drug companies have apparently not learned their lesson.  Just this week, a U.S. Senate Committee launched an investigation into an organization called The American Pain Foundation.

The group claims to be a non-profit organization focused on helping pain patients, but 90% of its funding comes from big drug companies. Additionally, the organization’s drug guides allegedly play down the risks associated with opioid painkillers and exaggerate their benefits. In letters to The American Pain Foundation and its members, the Senate Finance Committee questioned the group’s purpose.  One letter stated that:

“It is clear that the United States is suffering from an epidemic of accidental deaths and addiction resulting from the increased sale and use of powerful narcotic painkillers. . . . There is growing evidence pharmaceutical companies that manufacture and market opioids may be responsible, at least in part, for this epidemic by promoting misleading information about the drugs’ safety and effectiveness.”

In a press release, Senator Max Baucus stated that, “When it comes to these highly-addictive painkillers, improper relationships between pharmaceutical companies and the organizations that promote their drugs can put lives at risk.

What can the public do?

As this most recent episode indicates, “big pharma” seems to view multi-billion dollar fines and judgments as just another cost of doing business. So long as profits for new blockbuster drugs routinely run into the multi-billions of dollars, and the FDA essentially relies on big drug companies to police themselves, the public will remain vulnerable to the unscrupulous practices of these corporate crooks. While many people view trial lawyers with disdain thanks in large part to the multi-million dollar PR campaigns of corporate America and big insurance companies, the truth is that trial lawyers remain the last bastion of protection for millions of Americans. By holding the big drug companies accountable for their acts of fraud and negligence, trial lawyers help keep the marketplace for prescription drugs safer for all.

If you or a loved one has suffered harm from a pharmaceutical product, the lawyers at Heygood, Orr & Pearson may be able to help.  Contact us for a free case evaluation.

Actos Banned in European Countries

Even more alarming, Actos sales were suspended altogether in June, 2011 by medical regulators in France and Germany. The French and German decisions to ban the drug came after a study commissioned by the French Medicines Agency (FMA) determined that people taking Actos were more likely to develop aggressive forms of bladder cancer. This study examined cancer rates in approximately 155,000 people taking Actos in France from 2006 to 2009 and another 1.3 million other diabetics who were not taking the drug. Researchers found about a 22 percent higher risk of bladder cancer in those taking Actos compared with diabetics relying on other treatments.

Warning Labels Updated Too Late

Furthermore, in May 2011, another study looking at Adverse Event reports submitted to the FDA between 2004-2009 suggested that Actos patients faced a disproportionate risk of bladder cancer. The study reviewed a half million side effect reports associated with various diabetes medications and found that one-fifth of those involving bladder cancer occurred in patients using the drug.

As a consequence of these continuing developments, the FDA announced the approval of revised warning labels for Actos informing the public that use of the drug may be associated with increased risk of bladder cancer. This may minimize future cases of Actos-induced bladder cancer, but the warning label updates come too late for those who have already developed the devastating illness after taking Actos.

Additional Actos Dangers

Additionally, new research has added to the growing body of evidence linking anti-diabetic drugs like Avandia and Actos to other adverse health risks. Avandia has long been associated with cardiovascular risks while Actos was believed a safer alternative. Yet, emerging research suggests that similar heart risks are being seen in both drugs. Other studies have linked Avandia and Actos to an increased risk of fractures, macular edema and liver problems.

Actos Victims Stand Up for their Rights

As a consequence of these previously undisclosed risks, lawsuits have been filed in the United States against Takeda Pharmaceuticals. These lawsuits allege that Takeda failed to adequately warn patients of the risk of bladder cancer associated with the medication, allowing millions of patients to be put at risk of developing cancer while they received treatment for diabetes. The mounting 2011 legal actions against Takeda include steps toward class action lawsuits and multidistrict litigation. Since August 2011, class-action claims have been filed in the U.S. District Courts in Illinois, New York, Louisiana, Ohio, New York, California and other states.

Millions of patients filled prescriptions for Actos over the years, and based on the increased risk, the number of people who may have developed bladder cancer since the drug’s approval in 1999 could easily number in the thousands. In addition to the Actos bladder cancer litigation, it is highly likely that there will be legal action based on claims that Actos causes heart attacks and strokes.

Anyone who has taken Actos and developed bladder cancer is legally entitled to compensation for their associated financial, emotional and physical costs. Takeda Pharmaceuticals has a legal responsibility, indeed a moral responsibility, to all of the consumers who helped make it a multi-billion dollar company. This responsibility includes adequate research into all possible harmful side effects of their drugs and notifying patients, physicians and the FDA of any risks. Unfortunately, until the FDA’s mandated label change, Tadeka failed to warn its consumers of the increased risk of bladder cancer.

In fact, there is some evidence to suggest that Takeda deliberately turned a blind eye to the accumulating evidence of health risks associated with Actos. After the unsealing of a federal whistleblower lawsuit in February of this year, it has been learned that a doctor hired by Tadeka claimed that she was fired in retaliation for reporting the risks of bladder cancer and heart failure associated with the drug.  If such claims prove accurate, this amounts to a classic instance of a drug company putting profits ahead of people.

Time is Limited to Seek Compensation

When a person discovers they have been injured by a drug like Actos they need to act immediately to ensure they preserve their legal rights. First and foremost, it is important to hire attorneys who have the knowledge and resources to pursue these often complex and expensive cases. This is a challenging and complex area of the law, and if you try to go it alone, you will almost certainly leave the courtroom with nothing. The lawyers at Heygood, Orr & Pearson have vast experience in drug litigation, and we work diligently with our clients to obtain the full and fair restitution to which they are entitled. We will listen to the details of your case, give you an honest assessment of its strengths and weaknesses and tell you how we may be able to help. Contact us today for a complimentary consultation.

Why Take a Blood Thinner?

Atrial fibrillation is a heart condition which causes irregular and often rapid heart rate that can result in poor blood flow to the body. During atrial fibrillation, the heart’s two upper chambers (the atria) beat chaotically and irregularly — out of coordination with the two lower chambers (the ventricles) of the heart. Atrial fibrillation symptoms include heart palpitations, shortness of breath and weakness. Additionally, people who have atrial fibrillation are at risk for strokes and heart attacks, especially if they have other medical problems. With atrial fibrillation, the chaotic rhythm may cause blood to pool in the heart and form clots. If a blood clot forms, it can dislodge from the heart and travel to the brain, causing a stroke. Strokes resulting from atrial fibrillation patients can be fatal.

Because of the risk of severe stroke in atrial fibrillation patients, they are treated with a blood thinner to reduce the risk.  For decades, this has been accomplished with aspirin in low risk patients and Warfarin (Coumadin) in higher risk patients. While reducing the risk of stroke, blood thinners unfortunately expose patients to another risk  - the risk of serious internal bleeding.

Warfarin Risks Manageable

With Warfarin (Coumadin), about 1 in every 33 patients will suffer a major bleed.^[1] While the risk of such a bleed is high, the treatment for a Warfarin-induced bleed is very effective. Should a major bleed occur, oral or parenteral vitamin K1 can be given which reverses the anti coagulation effects of the Warfarin (Coumadin). This is referred to as a reversal agent, and the Full Prescribing Information (i.e., package insert) for Warfarin provides very specific instructions on how to use oral parenteral vitamin K1 to reverse a bleed.^[2] Also, the package insert for Wafarin very prominently warns about the risk of bleeding associated with its use.  In fact, the very first words of the package insert in all caps and bold type are: “WARNING: BLEEDING RISK”.

Worldwide Concern Over Pradaxa

Warfarin works by inhibiting vitamin K-dependent coagulation factors. This is why giving vitamin K1 reverses Warfarin related bleeds. PRADAXA, on the other hand, produces anti coagulation through a different mechanism by directly inhibiting thrombin. Although Boehringer Ingelheim claims in their package that PRADAXA causes no greater risk of bleeds than Warfarin, the FDA issued a “Drug Safety Communication” on December 7, 2011 stating that the “FDA is evaluating post-marketing reports of serious bleeding events in patients taking Pradaxa.”  The FDA’s counterparts in Australian and Europe issued similar alerts.^[3] Boehringer Ingelheim has even admitted to at least 260 confirmed fatal bleeding events in patients taking Pradaxa. Furthermore, the Institute for Safe Medication Practices has reported that in the first quarter of 2011, PRADAXA produced two different kinds of signals of major drug risk: a large volume of total serious reports, and large numbers of reports for a specific adverse event, hemorrhage.  They found that 932 serious adverse drug events have been reported where PRADAXA was the primary suspect drug.

PRADAXA Manufacturer Denies Risks

Because of the large number of significant adverse events, serious questions have emerged about Boehringer Ingelheim’s claims that PRADAXA does not involve any greater risk of bleeding.  In addition, it is undisputed that PRADAXA, unlike Warfarin (Coumadin), does not have a reversal agent that can be administered should a bleed occur.  Some treatments for a PRADAXA bleed are being evaluated (for example fresh frozen plasma and prothrombin complex concentrate), but the effectiveness and speed of these treatments are uncertain.^[1]

In light of the serious risk of life-threatening bleeds associated with PRADAXA and the lack of any established effective antidote, what did the Boehringer Ingelheim initial package insert for PRADAXA tell physicians?  What did their PRADAXA marketing brochures tell physicians?  NO WARNING!  Neither of these PRADAXA communications to physicians contained a warning about the fact that their patients could experience a life threatening bleed and there may be nothing the physician can do to effectively save their lives. Although a warning about the lack of a reversal agent has since been added to the PRADAXA package insert, it does not appear until the 5^th page of the package insert.  Clearly, a black box warning should be added to the package insert of PRADAXA warning about the high risk of life threatening bleeds and no reversal agent and that no effective treatment for stopping the bleed has been established.

SawStop technology is an amazing advancement in table saw safety that manufacturers have known about for years but have failed to incorporate. This technology utilizes an electrical current running through the blade of a table saw to detect skin contact with the blade. Upon sensing such contact, the SawStop system releases a heavy-duty spring that instantly pushes a block of aluminum into the teeth of the spinning blade, causing the blade to stop and then retract within 3-5 milliseconds. The result is that the user of table saw who comes in contact with a spinning table saw blade will receive only a small nick or scratch, as opposed to a serious injury or amputation.

The Consumer Product Safety Commission has found that more than 35,000 American are injured a year from table saws, with more than 4,000 injuries resulting in the loss of fingers. It is hoped that if enough injured people come forward and seek to hold these manufacturers responsible for selling a product they know is unreasonably dangerous, then the manufacturers will finally take corrective action and make their products safer.

Under English common law, a person could not sue the government for wrongs committed against a person. The King could do no wrong. Because our laws are based on the English common law, the law initially adopted in the United States followed this rule. The doctrine is called “sovereign immunity.” Through time however, most states have passed laws that allow citizens to sue the government if a governmental employee or agent, including a hospital employee, is negligent and causes injury. In 1969, the Texas Legislature enacted such a waiver of sovereign immunity when it passed the Texas Tort Claims Act. The Act was a partial waiver of the sovereign immunity of governmental units of the state.

The Act was only a partial waiver because it created only two circumstances under which the government (e.g., state, county or city) can be sued. They are 1) damage or injury arising from the operation of a motor-driven vehicle, and 2) personal injury and death caused by a condition or use of tangible personal or real property. Also, damages were capped at $100,000 for cases against a county and $250,000 for cases against cities or the state. Because medical malpractice cases typically don’t involve motor-driven vehicles or a condition or use of personal or real property, under the Texas Tort Claims Act, a hospital cannot be sued for the negligence of its employees. However, until recently, the employees (e.g., nurses or doctors) themselves could be held responsible for their own negligence. All of this changed because of an opinion of the Texas Supreme Court earlier this year.

In Franka, M.D. v. Velasquez, the Court construed Section 101.106(f) of the Texas Tort Claims Act. Section 101.106(f) provides:

If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.

Prior to the Franka case, this provision of the Act had generally been understood to require a plaintiff injured by a government employee to sue the governmental unit instead of the employee if such a claim fit under one of the two areas of waiver of sovereign immunity (i.e., “could have been brought under this chapter”). If, however, a claim against the governmental unit was not allowed under the Act, then the employee could be held responsible. In an amazing contortion of the language and intent of Section 101.106(f), the Texas Supreme Court changed this understanding of the Texas Tort Claims Act. In this regard, the Court held that when the statute says “could have been brought under this chapter,” it does not mean that a claim has to be allowed by the Act. The Court found that “any tort claim against the government is brought ‘under’ the Act for purposes of section 101.106 even if the Act does not waive immunity.” The Court reasoned:

Two other sections of the Act also make plain that suits brought “under” the Act include those for which immunity is not waived. Section 101.103(a) requires the attorney general to “defend each action brought under this chapter”. One would hardly suppose that the attorney general would be relieved of this responsibility whenever he thought, as he regularly does, his client’s immunity remained intact despite the plaintiff’s allegations. Section 101.102, entitled “Commencement of Suit”, provides that “[a] suit under this chapter shall be brought in state court in the county in which the cause of action or a part of the cause of action arises.” If this applies only to suits for which immunity is waived, can suits for which immunity is not waived, of which there are many, be brought anywhere? One would hardly think so. These examples serve to illustrate the obvious: that suit is brought under the Act when it is filed, not when waiver of immunity by the Act is established.

The Court asserted several other equally convoluted explanations for its holding. In the end, the Court admitted that their “construction of Section 101.106(f) does, however, foreclose suit against a government employee in his individual capacity if he was acting within the scope of employment.”

Under this new court ruling, if you are the victim of medical malpractice at a governmental hospital (or the victim of the negligence of some other governmental agent), the bottom line result is that you cannot bring a claim for injury or damages no matter how egregious their conduct. Clearly, this was not the intent of the legislature. If this had been the intent, the statute could have easily just stated in one sentence that government employees cannot be sued for acts or omissions committed in the course and scope of their employment. Hopefully the legislature will correct this Texas Supreme Court’s blatant legal activism that was clearly intended to protect negligent healthcare providers and other negligent governmental agents from liability for wrongs they commit.

Setting aside the logic gymnastics Justice Hecht had to undergo to reach this ruling and how he had to set aside and ignore decades of prior rulings regarding statutory construction and sovereign immunity to do so, this opinion sends a devastating message to the public by saying, “In Texas, we will not hold people responsible for their own actions if they work for the government”.

At a time when our politicians and community leaders consistently preach for us all to accept greater personal responsibility in our lives to help our society out of the current economic downturn, how can it be anything but catastrophic to enunciate a rule that not only fails to require governmental workers to accept responsibility for their own actions but actually provides them immunity for egregious negligent conduct that hurts and kills others?  What kind of message is that sending?

In a post-Franka v. Velasquez Texas:

• A driver of a city garbage truck is texting his girlfriend and not paying attention to the road while running a red light and killing a 5 year old girl: No liability for the driver of the garbage truck!

• A surgeon employed by a state hospital amputates a woman’s right leg when he should have amputated her left leg: No liability for the surgeon!

This is just not right.

Regardless of one’s political inclination or personal social or economic views, it should be so easy to rally around this simple premise:  People should be held responsibility for their own actions.  When the highest court in a state says otherwise, it demonstrates much too clearly how high the hurdle of justice often is.

As a brief reminder, there are two types of personal jurisdiction, (1) general personal jurisdiction, and (2) specific personal jurisdiction General jurisdiction is the broadest type of personal jurisdiction and exists when a defendant’s contacts with a state are “continuous and systematic.” International Shoe Co. v. Washington, 326 U.S. 310, 317 (1945). Under this theory of jurisdiction, a court may hear any and all claims against a defendant. Specific jurisdiction, by contrast, limits a court to resolving only those claims that “arise out of or are connected with the activities [of the defendant] within the state.” Id. at 319.

While the Goodyear and McIntyre Machinery decisions are important in their own right, any claim that they changed the test for general jurisdiction over corporations is misplaced. The issue before the Court in McIntyre Machinery was whether a manufacturer whose product ended up in, and caused injury in, New Jersey could be sued in New Jersey under a “stream-of-commerce” theory. See 131 S. 2786, 2790. Notably, the defendant did “not have a single contact with New Jersey short of the machine in question ending up in this state.” Id. at 2790.

As a preliminary matter, any reliance on McIntyre as creating a new rule for general jurisdiction is misplaced because the case involved specific, not general, jurisdiction. While the Court discussed in passing the concept of general jurisdiction, it merely observed that the state of incorporation and principal place of business are “examples” of where the exercise of general jurisdiction would be proper.

A person may submit to a State’s authority in a number of ways. There is, of course, explicit consent. Presence within a State at the time suit commences through service of process is another example. Citizenship or domicile — or, by analogy, incorporation or principal place of business for corporations — also indicates general submission to a State’s powers. Each of these examples reveals circumstances, or a course of conduct, from which it is proper to infer an intention to benefit from and thus an intention to submit to the laws of the forum State. These examples support exercise of the general jurisdiction of the State’s courts and allow the State to resolve both matters that originate within the State and those based on activities and events elsewhere. By contrast, those who live or operate primarily outside a State have a due process right not to be subjected to judgment in its courts as a general matter.

McIntyre Machinery, 131 S. Ct. at 2787 (emphasis added) (citation omitted). It is unclear how anyone could come away from this excerpt with a rule that a corporation is subject to general jurisdiction in only in its state of incorporation or where it has its principal place of business.

In Goodyear, the Court addressed the issue of whether the fact that a small percentage of a foreign manufacturer’s tires were ultimately distributed in North Carolina could subject the manufacturer to general jurisdiction under a stream of commerce theory. There is, admittedly, a single sentence from the Goodyear decision in which the Court noted that the “paradigm” bases for general jurisdiction are the corporation’s principal place of business and state of incorporation. 131 S. Ct. at 2854. But that is not a statement that the exclusive bases for general jurisdiction are the location of the corporation’s principal place of business and its state of incorporation. Indeed, in direct contradiction to any new bright-line rule, the Goodyear Court went on to conduct a traditional general jurisdiction analysis and examine the defendant manufacturers’ contacts with North Carolina, despite the fact that the manufacturers were incorporated and had principal places of business in foreign countries. The Court ultimately concluded that the defendants’ attenuated contacts with the state “fall far short of the continuous and systematic general business contacts necessary to empower North Carolina to entertain suit against them on clams unrelated to anything that connects them to the State.” Id. at 2857. In short, it is inaccurate to claim that the Goodyear court established new rules for general jurisdiction. Rather, the Goodyear court simply applied well-established principles and reversed a decision by a state court that was far outside established, general jurisdiction precedent.

Post-Goodyear and McIntyre Machinery decisions only further confirm the fact that the systematic and continuous contacts test prevails to this day. No court has interpreted Goodyear or McIntyre Machinery as imposing a new bright-line rule. Indeed, since Goodyear and McIntyre Machinery, numerous courts have continued to conduct the “continuous and systematic” analysis in assessing general jurisdiction. See, e.g., Harrelson v. Seung Heun Lee, 2011 U.S. Dist. LEXIS 79383, at *18 (D. Mass. July 21, 2011) (citing Goodyear and then concluding that general jurisdiction was proper under a corporate veil-piercing due to the fact that corporations operated a number yoga centers in Massachusetts, which demonstrated systematic and continuous business activities in the state of Massachusetts); Arlington Industries v. Electric Custom Distributions, No. 3:10-cv-842, 2011 U.S. Dist. LEXIS 105009 (M.D. Pa. September 15, 2011) (citing Goodyear and then conducting traditional general jurisdiction analysis to see if a Texas corporation with its principal place of business in Texas could be subject to general jurisdiction in Pennsylvania); Francis v. Bridgestone Corp., No. 2010/30, 2011 U.S. Dist. LEXIS 72804, at *24-25 (D.V.I. July 6, 2011) (citing Goodyear and then recognizing that “[w]hen the claim is based on defendant’s non-forum related activity, the focus in determining jurisdiction is on the totality of the defendant’s activity within the jurisdiction, which must be ‘continuous and substantial’ to meet due process requirements.”); Austin Hardware and Supply, Inc., No. 11-cv-00485, 2011 U.S. Dist. LEXIS 88207, at *7-8 (W.D. Mo. Aug. 9, 2011) (concluding Tennessee corporation not subject to general jurisdiction because of a “lack of the systematic, on-going, continuous contacts required to establish general jurisdiction: SFI is not authorized to do business in the state of Missouri; it has no employees, representatives, or agents in Missouri; it does not own, lease or use any real property in the state of Missouri; and, it never had an employee or agent visit Austin Hardware’s offices or warehouse in Lee’s Summit, Missouri.”). In sum, Goodyear and McIntyre Machinery in no way created a new rule that corporations can only be sued in their states of incorporation or that state where their principal place of business is located. The law was and still remains that a corporation may be subject to general jurisdiction in any state with which it had continuous and systematic contacts.

First, with so much money at stake, insurance companies hire only the most experienced insurance adjusters and attorneys to handle cases involving injury or death from an 18-wheeler. Initially, the insurance company will feign friendship and sympathy towards an accident victim in an effort to earn their trust. The insurance adjusters will frequently arrange for the victim give an informal recorded “statement” in which they ask questions that are designed to elicit answers that are later used to hurt the case. In some cases, the trucking company may even make a low-ball settlement “offer” to tempt accident victims to surrender valuable rights they would otherwise have in court. They will even encourage accident victims to not hire attorneys by telling them that they will receive more money if the lawyers are “kept out of it.”

If none of these tactics work, the trucking company will hire a highly skilled defense team whose job is to limit, if not eliminate, an accident victim’s recovery. Crucial pieces of evidence may never be found; important deadlines may pass; cases may even be dismissed outright because of legal maneuvers and strategies that catch plaintiffs or their inexperienced attorneys by surprise. Ultimately, an accident victim’s chance of securing full compensation is jeopardized if they forego the representation of seasoned and aggressive attorneys who place the interests of their clients above all else. What is true with passenger automobile accidents is especially true with trucking accidents: you cannot afford to not hire an attorney.

Under what is known as the collateral-source rule, a defendant generally cannot use compensation that an injured plaintiff received from a source independent from the defendant to reduce the damages that the defendant would otherwise have to pay the plaintiff. For example, a defendant cannot introduce evidence of Social Security Disability benefits received by an injured person to reduce the amount of damages that the defendant must pay to the injured plaintiff.

Courts in Arizona and several other states have ruled that the collateral-source rule precludes a defendant from using a negotiated discount to reduce the amount owed to an injured plaintiff for medical expenses. But the Texas Supreme Court and the California Supreme Court have recently ruled that, despite the collateral-source rule, an injured plaintiff cannot recover the reasonable value of her medical care if she paid a lower amount pursuant to a negotiated insurance discount. See Howell v. Hamilton Meats and Provisions, 52 Cal.4th 541 (Cal. Aug. 18, 2011); Haygood v. De Escabedo, 54 Tex. Sup. J. 1377 (Tex. July 1, 2011).

The Texas Supreme Court and California Supreme Court decisions negatively impact injured insured plaintiffs by allowing a defendant use a plaintiff’s negotiated discount on her hospital bill to award less than the reasonable value of the medical care, the amount that the defendant would have to pay to an uninsured defendant. These decisions, which allow a defendant to unfairly benefit from a plaintiff’s insurance contract, are contrary to the spirit of the collateral-source rule.

There is one important difference between the Texas and California decisions. The Texas Supreme Court also ruled that a plaintiff with a negotiated discount cannot introduce evidence of the full reasonable value of her medical care at trial. Juries often use the amount of medical expenses to assess the seriousness of injuries and tend to award higher non-economic damages (e.g., pain and suffering, mental anguish, etc.) in cases with higher medical expenses. Therefore, the Texas Supreme Court’s decision will likely result in lower non-economic damages to insured plaintiffs with negotiated discounts (because juries will not be permitted to hear evidence of the full reasonable value of their medical care) than to uninsured plaintiffs (where juries will hear evidence of the full reasonable value of the care). The California Supreme Court’s decision appears to contemplate reducing an insured plaintiff’s medical expenses through a post-trial motion instead of preventing a plaintiff from introducing evidence of the reasonable value of her medical expenses at trial. Hopefully, this will prevent the California Supreme Court’s decision from negatively impacting the non-economic damages awarded to insured plaintiffs in the same way that the Texas decision will.