CBIA'S KNEE-JERK REACTION

CBIA CALLED ON CARPET FOR KNEE-JERK REACTION

In today’s edition of the “Hartford Business Journal” the Connecticut Business and Industry Association was called on the carpet for its knee-jerk reaction before the legislature to Senate Bill 1244, an act requiring disclosure of insurance policy limits.
I blogged about this subject on March 5.

In the “Journal’s” timely piece, it is noted that CBIA’ reaction to the mandatory disclosure bill was not well thought out nor was the testimony of CBIA staff attorney Kevin Hennessy. The reality is that disclosure of policy limits has nothing to do with the amount of money a particular claimant pursues. Nor is it even a target for a lawyer. The information does enable an attorney to make important informed decisions about how to proceed with a case and disclosure of limited coverage will likely mean no lawsuit and an early settlement in appropriate cases. In other cases, the information is necessary to determine whether and to what extent an underinsured motorist case should be brought. Still in other cases, the amount of coverage may determine the number and type of defendants that may be necessary in a particular case.

Notably, the “Journal’s” hypothesis about cynics believing that injured people will go unrepresented if there is timely disclosure of policy limits is nothing more than speculation. We would certainly have at least anecdotal evidence to suggest that cases were being dropped like “hot potatoes” after suit was commenced and defendants were forced to comply with mandatory disclosure of policy limits consistent with the Rules of Practice.

The “Journal” points out that Carl Anderson, President of the Connecticut Trial Lawyers Association is probably right when he asserts that mandatory disclosure of policy limits will probably lead to less litigation and not more. That view is based upon experience in the litigation trenches. It is well considered and not a “knee-jerk” claim. It is based upon a practical analysis. It should make the legislature concerned about the extent to which other “information” fed to it by the CBIA is similarly “knee-jerk” and wanting for an empirical or at least a practical basis.

Stewart M. Casper
Casper & de Toledo LLC
1458 Bedford St.
Stamford, CT 06905
Tel. 203-325-8600
Fax 203-323-5970
www.casperdetoledo.com

BRAIN INJURY AND IBUPROFEN

BRAIN INJURY AND IBUPROFEN

As a trial lawyer who devotes substantial times and resources studying both the law and the science involved in traumatic brain injury, I continue to be fascinated by the amount of learning that I do. In part, this educational process is aided by my role as Editor-in-Chief of the Traumatic Brain Injury Litigation Group Newsletter. The TBILG is a group sponsored by the American Association for Justice .

Recently, I have been engaged in a dialogue that recognizes that a traumatic brain injury is not an event but an evolving process. The injured brain responds like other parts of the body that become injured. The body reacts to a brain injury by producing a variety of chemical substances as a defensive and/or healing mechanism. These chemical reactions, in some cases, actually cause further and continuing damage to the brain that might only be detected by very sophisticated neuropsychological testing that demonstrates cognitive deterioration.

Part of the scientific study that is ongoing in this area of medicine involves the use of pharmaceutical agents to try to overcome the adverse effects of brain injury. Understandably, studies that involve humans are limited because with brain injuries, no one wants to become a human guinea pig. However, conclusions can be drawn from animal studies.

Recently I came across a very interesting study published in the journal Experimental Neurology. The article is entitled: “Chronic ibuprofen administration worsens cognitive outcome following traumatic brain injury in rats” by Kevin D. Browne et al. Experimental Neurology 201 (2006) 301-307. Ibuprofen is a widely used non-steroidal anti-inflammatory drug (NSAID) used to control pain and reduce inflammation either from a chronic condition or an acute traumatically induced condition. According to the article, the use of Ibuprofen has had positive results in treating Alzheimer’s disease and preventing cognitive decline. Thus, it seemed logical that the same result might be found by using Ibuprofen on traumatic brain injury victims. The result, however, was not encouraging as chronic use of Ibuprofen was found to worsen cognitive function in rats studied with induced TBI.

Because most traumatic brain injuries in humans also involve an assortment of other injuries many of which involve inflammatory processes involving the musculoskeletal system (broken bones, torn cartilage and tendons, muscle and ligament injuries, etc), it is quite common for physicians to recommend that a patient use a NSAID or the patient self-medicates with a NSAID. Such NSAIDs include: Advil, Advil Liqui-Gels, Advil Migraine, Genpril, Haltran, Junior Strength Advil, Junior Strength Motrin, Menadol, Midol Maximum Strength Cramp Formula, Motrin, Motrin IB, Motrin Migrain Pain, Nuprin and Rufen. If the conclusions of this Ibuprofen study can be extended to humans who suffer traumatic brain injury, then the use of such NSAIDs chronically may be good for the joints but harmful to cognition.

SLEEP MEDICATION WARNINGS

SLEEP MEDICATION WARNINGS

On March 14, 2007, the Food and Drug Administration issued a special release warning consumers and physicians about safety risks of many prescription sleep medications. The warnings involve potential allergic reactions as well as activities of daily living where adverse events have been reported such as sleep driving, making telephone calls and preparing food with use of a stove, oven and sharp instruments including food processors, blenders and knives. The combination of these types of complex activities may result in serious personal injuries or death from motor vehicle crashes and trauma in the kitchen and elsewhere. The sleep inducing medications include:

Ambien/Ambien CR (Sanofi Aventis)Butisol Sodium (Medpointe Pharm HLC)Carbrital (Parke-Davis)Dalmane (Valeant Pharm)Doral (Questcor Pharms) Halcion (Pharmacia & Upjohn)Lunesta (Sepracor) Placidyl (Abbott)Prosom (Abbott)Restoril (Tyco Healthcare)Rozerem (Takeda)Seconal (Lilly)Sonata (King Pharmaceuticals)

The FDA is working with drug manufacturers to improve warning labels, alert health care providers and warn consumers.


Stewart M. Casper
Casper & de Toledo LLC
1458 Bedford St.
Stamford, CT 06905
Tel. (203) 325-8600
Fax (203) 323-5970
Board Certified in Civil Trial Advocacy by the National Board of Trial Advocacy
www.casperdetoledo.com

CBIA - NO COMPASSION

CBIA – NO COMPASSION

I knew that I would get around to addressing the heartless attitude of the Connecticut Business and Industry Association for last week’s email to its membership criticizing the legislature’s judiciary committee’s vote for Raised Bill No. 1268. The proposed legislation would permit a family member (parent or child) to make a claim for damages in the event of death or permanent injury to a parent in the case of a child claimant or to a child in the case of a parent claimant.

These types of claims are sometimes known as “loss of parental consortium” or "loss of filial consortium.” Consistent with its single minded devotion to opposing any enlightened legislation calculated to make the world a better place, CBIA opposes the recognition of the legitimate scope of damages that can occur to the family unit when injury is wrongfully inflicted. CBIA flails to criticize the legislation complaining that there are no age limits set and sounding an alarm that this is the slippery slope to more causes of action, double recoveries and making claims more expensive to resolve.

Loss of consortium is presently recognized in Connecticut as a valid cause of action by the non-injured spouse in the case of the injured spouse. As a practical matter, good lawyers do not frequently pursue spousal consortium claims in the absence of death or significant injury that substantially interferes with life and life style. Often these claims are withdrawn before the start of trial so as not to distract the jury from the more severe claim.

However, aside from the role that sexual intimacy places in a spousal context, the losses that a child may suffer when a parent is killed or permanently injured; or the loss of a parent when a child is killed or permanently injured, may be as grave if not more compelling than the losses involving only spouses. It is most often devastating for a child to lose a parent or to experience life with a parent with a crippling injury. The lack of parental guidance can lead to catastrophe including a lifetime of insecurity and psychological problems. Children look to their parents for so much.

And what of the loss of a child to death or permanent injury? Should the parent become a lifetime caregiver to a child who suffers a traumatic brain injury be destined to suffer caregiver burnout? Or suppose the parent is a senior citizen who depends upon an adult child to provide care during the twilight of life. Hasn’t that parent suffered an emotional but also economic loss for which there is no recourse under the law presently unless there is resort to public assistance?

While the CBIA is busy ignoring the humanistic approach to life and focusing only upon whether an insurance premium might rise a few dollars, the legislature has it in its power to elevate the value of life and family relationships and to recognize that those relationships provide nurture, counsel, support and economic value. We all have the right to such relationships and if we are deprived through the fault of a drunk driver, medical negligence, a faulty product or a defective building, there should be a remedy.

INSURANCE IS THE KEY TO MOST LAWSUITS

INSURANCE IS THE KEY TO MOST LAWSUITS

It is a pathetic demonstration of leadership advanced by the Connecticut Business and Industry Association when it appears to testify before legislative committees to prevent progress in the system of civil justice. I have written about the CBIA’s policy previously and how that policy is calculated to retard any progress that might be made toward improving the efficiency of the judicial system when there is a perceived but fictitious belief that its members will somehow be harmed, usually from a financial standpoint.

Last Friday, the CBIA issued its Government Affairs Report and it issued its propaganda about two bills that its members testified against the previous week. Here is what was said about SB-1244 and SB-1268. I only have time to address the former today.

Judiciary bills encourage lawsuits and higher damages Two proposals in the Judiciary Committee would open the door to more lawsuits, higher damages and a judicial playing field tilted in favor of plaintiffs and trial attorneys.
The actual proposed legislation relating to disclosure of insurance has been offered for years as an efficient and effective way to expedite the resolution of bodily injury claims. The CBIA is in fantasyland about how the civil justice system in general and lawyers specifically address the issue of liability insurance coverage. There is an important role insurance plays in virtually every lawsuit and the Connecticut Business and Industry Association is like an ostrich with her head in the sand when it comes to properly addressing improvements in the civil justice system.
The CBIA falsely hypothesizes that by mandating the pre-suit disclosure of insurance policy limits, the injured victims will look for deep pockets and the playing field will be tilted in favor of the victim. This is hyperbole at best and outright falsehood at its worst.
Here are just some of the reasons that CBIA has a warped sense of how the civil justice system works when it comes to pre-suit disclosure of policy limits:
1. Mandatory disclosure of insurance coverage is already required once suit is filed. So by stonewalling disclosure of insurance coverage, in any case perceived to involve significant damages, the CBIA approach would virtually assure a lawsuit would be filed to obtain information that is deemed important when it might be possible to avoid a lawsuit altogether if there is a limited amount of insurance coverage.
2. The CBIA theorizes that the “playing field” will be tipped in favor of the victim by disclosure of this information. In reality, the proposed legislation is calculated to level the playing field. Any victim who desires to move a claim toward resolution must already provide the opposing side (the insurance company) with plenty of information at the pre-suit stage of the claim process. The information includes personal data such as full name, date of birth, residence, social security number, and copies of personal medical records, job information and in many cases, information about family members. In this context, it hardly seems intrusive or unfair to have a potential defendant disclose the applicable insurance information. The greatest irony is that the insurance industry maintains a huge database that contains personal information on vast segments of the population. It is referred to as The Index Bureau. If the government isn’t watching what you do then rest assured, the insurance industry has a file on you if you have ever made any type of insurance claim and any insurance company that is a member of The Index Bureau simply has to request your file and pay a small fee.
3. The CBIA is delusional in believing that disclosure of insurance coverage will assist in the search for deep pockets. First, in most situations, the CBIA’s members are large commercial establishments, big corporations, insurance companies, trucking companies, HMOs and the like. Everyone knows that those outfits have deep pockets. Even small business members of CBIA are likely to have adequate levels of insurance coverage for most accidents. The greatest desire to have disclosure of insurance limits exists for the operators of private passenger motor vehicles where the present law in Connecticut permits operation with limits of insurance coverage that are ridiculously low. Further, lawyers have access to investigators and other services that will give them some idea about the financial stability of a company. That information will create at least a strong suspicion that there will be adequate coverage. But that type of investigation wastes time and money that can better be used to pay bona fide claims. And finally, when I look at a police report and see the information about the offending party, I can make some assumptions about the level of insurance coverage that will be encountered. Certain insurance companies are notorious for writing minimum limits policies, often because the driver is in the “assigned risk pool”. The police report will tell me about the driver’s address, the make, model and year of the vehicle and the driver’s age; that will suggest whether I should expect minimum or perhaps greater insurance coverage. Yet there are many more decisions that will be made depending upon the amount of available coverage including but not limited to the scope of an investigation, experts to hire and whether I should be thinking about other potential remedies. It is interesting that the CBIA makes much ado about this legislation. As a Plaintiff’s trial lawyer handling truck crashes, motor vehicle accidents, pedestrian accidents, injuries caused by defective products, medical malpractice claims – it is my experience that this legislation will benefit my clients the most in those cases that don’t involve CBIA’s members.
4. Finally, most other states permit this type of disclosure.