Visualize this: Your family is coming unglued agonizing over how to best care for an elderly loved one whose mind is deteriorating from dementia, Alzheimer’s or Parkinson’s Disease. The final resort is placing your parent in a nursing home, but once you’ve made the decision the last thing you expect is for Mom or Dad to get the Nurse Ratched treatment— (remember the sadistic head nurse who dispensed anti-psychotics to a queue of patients at her glass window in “One Flew Over the Cuckoo’s Nest”).

Segue from psych ward to nursing home, but hang on to the Depakote—an antipsychotic /anticonvulsant mega drug approved only for patients suffering from seizures, bi-polar disorder or schizophrenia.

Depakote was never approved to subdue aggression or agitation in elderly dementia patients. Current studies, however, report a whopping 30 percent of all nursing home patients are routinely given Depakote— 21 percent of them having none of the conditions Depakote was designed to treat. After the drug takes effect the patient’s mobility become sluggish, responses are delayed, alertness clouded—resulting in greatly increased risk of falling. Worse, patients may suffer heart attack, sudden death, pancreatitis, liver failure and exacerbated related infection, often without warning.

Earlier this month, Abbott Laboratories, manufacturer and distributor of Depakote, pleaded guilty to charges of criminal misdemeanor for extended and purposeful misbranding of Depakote as a sedative for geriatric patients. Summary compensatory payout is estimated to total $1.6 billion in criminal fines and civil settlements.

Meredith McCoyd, a former top-performing Abbott sales representative based in Atlanta, was the first to come forward with allegations regarding Depakote. Ms. McCoyd is the lead whistleblower, whose complaint initiated the government’s investigation of Abbott. The Justice Department intervened in her case last year.

McCoyd’s testimony shocked industry regulators when she revealed that, between 1998-2006, top-tier Abbott executives “maintained a specialized sales force trained expressly to market Depakote in nursing homes for the control of agitation and aggression in elderly dementia patients, despite the absence of credible scientific evidence that Depakote was safe and effective for that use.”

Little black box: In 2006 the FDA demanded that Abbott place a boxed warning or black box warning on Depakote’s packaging. Black box warnings are the strongest regulations commanded by the FDA; printed inside a visual black box for emphasis they signify that conclusive medical studies have indicated the accompanying drug poses alarming risks or even life-threatening adverse effects especially for those who do not stand to benefit from using it.

In recent years the FDA has issued a string of similar warnings to support the DOJ’s escalating crackdown on big pharma whose advertising exaggerates a drug’s benefits while undermining or omitting the risk of grave side effects.

Q: How come so many nursing homes have fallen into the sinister routine of giving Depakote to non-psychotic/nonconvulsive patients, despite the black box ruling
in 2006— again formally reinforced by the FDA last week?

A: Simple greed. Abbott sold Depakote as a means to subdue patients so that personnel could be slashed, since insurance programs are far speedier and more generous when it comes to covering drug costs than staff salaries. Abbott’s nursing home campaign was aggressive and convincing, offering kickbacks to doctors who would write prescriptions for use of the drug as a sedative for agitation and epilepsy, even migraine headaches.

At a Justice Department news conference last week U.S. Attorney Timothy Heaphy said that between 1998-2006 top levels of Abbott carried out a strategy of systematically marketing the drug for purposes other than what federal regulators had allowed. He said Abbott earned about $13 billion from Depakote sales during the investigation period, but added that it was difficult to determine how much profit was a result of sales for illegal purposes. Heaphy expressed confidence that, once all the fines are factored in, Abbott will not have profited from its improper practices.

Really? $13.0 bilion – $1.6 billion = $11.4 billion

As ‘Big Nurse’ said to Jack Nicholson’s R.P. McMurphy: “Those are some very challenging observations you made, Randle… but I think it’s best that we stick to our daily routine.”

It’s an old children’s rhyme that psychologists today say is wildly inaccurate. The truth is that words can hurt: just look at the recent news stories about teen suicides caused by verbal online bullying. It’s plain to see the harm caused by degrading language pointed at a sensitive teenager.

But what about words that, on the surface, appear neutral – or even positive? Is it possible that these “innocent” words can send a destructive message too?

We think so – and present HR 4369, the “FACT” Act of 2012, as a prime example.

Today, May 10, the Furthering Asbestos Claim Transparency (FACT) Act of 2012 will be heard on the floor of the United States House of Representatives. It sounds like a great bill; after all, who would object to transparency for asbestos claims? Even more, who would object to the facts? We sure don’t. But is that really what the FACT Act is about? And is this a helpful or harmful bill for the thousands of men and women suffering from asbestos-related diseases who are awaiting funds from the bankruptcy trusts established by the companies responsible for their ill health?

First, lets’ look at the issue of facts and transparency. Decades ago the Occupational Safety and Health Administration (OSHA) said that “it was aware of no instance in which exposure to a toxic substance has more clearly demonstrated detrimental health effects on humans than has asbestos exposure.” That sounds pretty factual (and transparent) to us. So it follows that the companies that knowingly exposed workers to asbestos (more on that knowingly part in a future blog) should be held accountable for their actions. Again, pretty straightforward.

But the FACT Act would change that. Rather than simply developing a horrific illness, scientifically relating the illness (such as mesothelioma) back to asbestos exposure and asking the folks responsible for your tragedy to pay you fairly, the FACT Act puts new burdens on the asbestos trusts, the very vehicles designed to compensate asbestos victims.

So how does the FACT Act enact these burdens and what do they mean to the men and women who have, through our court system, been duly awarded compensation for their severe injuries?

HR 4369 offers two equally disturbing proposals. 1) It would require the trusts to publicly disclose extensive, individual and personal claim information, including information about a victim’s exposure and work history; and 2) it would allow the companies at fault for the asbestos exposure (the defendants) to demand whatever additional information they want from the trusts – all at any time and for virtually any reason. 

Given that there is no abuse of the trust process, it is highly unlikely that the backers of the FACT Act are genuinely concerned about making things work better. Rather, the bill seeks to override state law regarding the discovery/disclosure of information. In the process the FACT Act would dramatically slow the claims process, benefiting not the victims of the asbestos tragedy but the companies responsible for this tragedy.

We think the message here is indeed clear — not because of the FACT Act but despite it. This bill would encumber the asbestos trust system in order to discourage people from making claims and prolong the process for those who are stalwart enough to try.

The facts of the FACT Act are wrong. And the purveyors of the bill are manipulating language with the intent to harm, far more than sticks and stones.

We hope the members of the House have the vision to see through this “transparency.”

Take for example the story of YAZ, a blockbuster drug for big pharma but a source of heartache for too many young women who were irreversibly injured or killed as a result of ingesting YAZ’s main ingredient drospirenone (DRSP).  A fourth-generation artificial progestin, DRSP can raise potassium to life-threatening levels, causing dehydration that may lead to blood clotting and numerous other related health crises.

YAZ was approved by the FDA in 2001 for birth control use only. But if you happened to catch Bayer’s 30 second TV spot, “Not Gonna Take It,” you’d think that the drug did much more than prevent pregnancies – and that it was safe. In fact the ads specifically touted the drug not only for birth control, but also for treatment of just about whatever was making young women feel less than their best.

Catch this opening line of one TV spot run widely in 2008: “We all know that birth control pills are 99% effective and can give you shorter, lighter periods. But did you know there’s a Pill that could do more?" The commercial went on to infer that YAZ was the no-risk-cure-all for PMS and Acne, among other things.

Since then the FDA has ordered Bayer to correct its bodacious ads and include the high risk for blood clotting. Bayer complied with TV ad campaign. But what young woman didn’t remember the enticing original ad? A quick look at the staggering sales of YAZ and its generic sisters, like Ocella and Yasmin, indicates that most women bought into the allure. In fact, according to an April 2012 Bloomberg article, YAZ is still the fourth most popular oral contraceptive, earning Bayer over $1.5 billion in 2010 alone.

But enticing ads, while selling products, don’t change the facts. To date approximately 12,000 lawsuits have been filed for YAZ-related injury or death and 50 deaths were registered between 2004-2008 alone.

We are heartened by the April 2012 decision granting legitimacy to plaintiff Geri Atkinson’s complaint against Bayer for having suffering multiple incidents of pulmonary embolism since 2009, while taking YAZ, Yazmin, and Ocella.

Also in April 2012 the Food and Drug Administration issued a formal statement warning that YAZ and Yasmin can dramatically increase risk of blood clots compared to other birth control pills. The FDA statement announced that patients may be up to three times more likely to suffer blood clots when taking birth control pills containing drospirenone.

So it appears that Bayer is ready to get real about YAZ. That means compensation for the families of the inured or dead and better warnings about the risks.

Good news? Yes.

But tell that to the families of young women lost to a sudden stroke or pulmonary embolism. No amount of monetary compensation can reverse the fact that these tragedies were, and still are, unnecessary had greed not outweighed safety in Bayer’s business plan for YAZ.

Written by attorney Allen Vaught

You work hard for your money. But are you earning everything you’re entitled to?

Some employers often violate federal labor laws that require them to pay overtime to salaried workers.

Although some employees are exempt from overtime pay, there are many who don’t know that they are unlawfully being taken advantage of and their employer is in violation of the federal Fair Labor Standards Act (FLSA).

Unless a worker is “exempt” from the FLSA overtime wage laws, they must be paid overtime.  Almost every employee who is paid an hourly rate must be paid overtime when they work more than 40 hours in a workweek.

If you were due overtime, but not paid overtime by your current or former employer, the FLSA allows you to recover double the amount you were owed. If your employer owes you $5,000 in unpaid overtime, that amount becomes $10,000 once the late payment penalty known as liquidated damages is included.

And employees can receive up to two years of back pay, sometimes even three in some circumstances. So, if you learned on January 1, 2012 that your employer did not pay you required overtime pay, you could potentially recover back wages from as far back as January 1, 2009.

So, for example, if you are a nurse working an average of 60 hours per week and who is paid $20 per hour straight time for those 60 hours, you are due up to $200 per week/$10,400 per year in back overtime pay for the remaining “half time” you were not paid for each hour over 40. (Employee is due time and half, and since straight time has been paid for all 60 hours, what remains due is the half time for the hours over 40). Also, once the FLSA’s liquidated damages provision is included, that same nurse’s amount due becomes $400 per week/$20,800 per year. Assuming the FLSA’s three-year recovery period applies, that nurse would be due $62,400.

Similarly, an employee paid a straight commission generally must always be paid overtime. For example, if you are a salesperson being paid a straight commission which averages $800 per week, and you work 48 hours per week on average, then you could be due as much as $240 per week/$12,480 in back pay and an additional $240 per week/$12,480 in liquidated damages in addition to your commission pay. Assuming a three-year recovery period, that sales employee might be entitled to as much as $74,800.

If your pay includes both a salary and a performance-based commission, which is typical in many sales positions, the employer must retroactively include your commissions in your overtime rate of pay. For example, if you make sales calls by phone, and are paid a salary of $25,000 per year, earn an average annual commission of $15,000 per year, work an average of 50 hours per week, but only get overtime based on your $25,000 base salary, then you are due as much as an additional $216 per week/$11,250 per year in unpaid overtime and liquidated damages. Commissions must be included in determining your overtime rate of pay.

Many times, salaried employees don’t even know that they are due compensation for lost overtime wages. The FLSA makes it illegal for companies to retaliate against an employee for making an inquiry into their wages due, or for bringing a claim to recover those wages. If you feel you have been a victim it’s important to call an attorney soon to receive all the money you may deserve. The FLSA allows a limited about of time to seek back overtime wages.

So where are these injuries and deaths coming from?

Let’s look at the facts, as reported by the Census of Fatal Occupational Injuries (CFOI) program conducted by the U.S. Bureau of Labor. A preliminary total of 4,547 fatal work injuries were recorded in the United States in 2010. (Final 2010 CFOI data will be released this spring.) While fatality rates in some job sectors such as private construction declined, other job sectors such as private mining showed large increases. To be specific, 2010 work-related fatalities were up 74 percent in the private mining sector and were also sharply higher both in mining activities other than oil and gas (up 110 percent) and in support activities for mining (up 71 percent).

While some disasters like the Upper Big Branch mining disaster (29 fatalities) and the Deepwater Horizon oil rig explosion (11 fatalities) get our attention, the vast majority of workplace fatalities and injuries occur outside the media spotlight.

Consider the issue of asbestos exposure. Thought by many today to be a workplace issue of the past, asbestos diseases such as mesothelioma continue to quietly cause 3000 deaths per year in the United States alone. Since the latency period of asbestos diseases is so long (20 years or more), not everyone who develops a cancer like mesothelioma realizes that the cause is workplace exposure. Yet the bold truth is that asbestos was, and is, still at the top of the list of causes for work-related death and injury, even if it does not make the official CFOI roster.

While we decry the blatant and avoidable workplace injuries caused today by sloppy management and unsafe systems and machinery, we also don’t want to forget the stealth workplace killer, asbestos. Not only is it the cause of deaths today due to exposure decades ago, asbestos is still being imported into the United States for use in construction materials. And the men and women working with those construction materials today will be the work-related fatalities decades to come.

A complete U.S. ban on asbestos would go a long way to prevent future asbestos-related diseases and reduce the number of men and women we honor on Workers Memorial Day.

Quick.

Think of Earth Day and what do you see? We bet it’s a crunchy vision of bare-footed environmental believers, with not a suit in sight. But even if we don’t have the picture totally right, we know there’s no courtroom scene in your vision. In fact, if you were to conjure up the opposite of earth day bliss it would most likely look like, well, a bunch of high-powered lawyers doing some fancy deals. We’re not Earth Day friendly, right?

Wrong.

While our plaintiffs’ attorneys may look different than the media’s stereotype of Earth Day celebrants (at least on their office days), the reality is that environmental zealots and plaintiffs lawyers have more in common than you might think.

First, there’s the passion. As anyone who has been at either a trial or an Earth Day event knows, the engine that makes both these happenings work is passion: that raw “little engine that could” belief that what we are doing can, and will, make a difference.

Next, there’s the dedication. Most people don’t know that plaintiffs’ attorneys work on a pure risk/reward system so that, in effect, the hours our attorneys put into preparing and going to trial are more like volunteering than working. We hope for a good outcome (and work like heck to make it happen), but a predictable ROI? That’s not in our vocabulary.

Finally, there’s the sheer mass of the obstacles we face. Toxic substances that will harm third world citizens for decades to come? Check. Oil spills that seep into the food chain so deeply that their impact will be felt in ways we cannot imagine? Check. We don’t let the size of the problem deter us.

The truth is that to successfully achieve the Earth Day mission (positive environmental change through education) we need all hands on deck: the non-profits, the volunteers, the scientists, the politicians and the plaintiffs’ attorneys. And we need all those hands on deck everyday.

We’re in.

Hardly.

In California, just as in every other state, one of the most vital aspects of a mesothelioma lawsuit is the injured person’s testimony (or deposition, as it is known in the legal world). The deposition, one of the most important pieces of evidence in a mesothelioma trial, can be the difference between a lawsuit’s success and failure. While there is no disagreement on either side of the table that depositions are important, there is disagreement about how arduous they can or should be. And today, in California, depositions can be so arduous that they are extremely difficult for anyone with a debilitating illness to endure.

While most states have a limit  (usually six or seven hours) on how long an attorney can interrogate someone in a deposition, California currently sets no time limits. The result is predictable: gravely ill people don’t exactly want to line up for days of questioning and may chose instead to give up their fight for justice. The asbestos companies surely know this. But the intimidation factor is not the only problem with the current lack of time limits; currently, if someone with mesothelioma dies before their deposition is completed, the asbestos companies argue that their unfinished deposition should not be used in court, thus weakening their case.

California AB 1875 would change all that.

This bill would place reasonable time limits on the interrogation process for people in civil lawsuits who are suffering from serious illnesses (likely the seven hours in place in many states). Such a time limit would not only level the playing field for mesothelioma patients in California, it would also decrease the overall cost of mesothelioma lawsuits, a benefit to both sides.

We applaud the California legislature for introducing this bill and urge them to push it forward.

ADAO co-founders Linda Reinstein and Doug Larkin with Barbara McQueen, Jordan Zevon and Baron and Budd’s representatives.

March 30 – April 1 was the eighth annual Asbestos Disease Awareness Organization (ADAO) conference and Baron & Budd’s third time to attend as an event sponsor. Every conference has been eye-opening but we have to say this year’s event, themed “An International Public Health Crisis,” was the most informative to date.

So what did we learn?

Well, the words international and crisis are understatements for the rampant and unprotected use of asbestos in countries as diverse as Brazil, India and China. It is hard to believe that in 2012 anyone can, with a straight face, say that asbestos cement products are not friable (meaning they can’t break off and release asbestos fibers) or that “controlled use” of asbestos is safe. But those statements are only two of the many lies perpetrated by executives in companies that stand to make a buck from selling asbestos to unsuspecting buyers.

It probably won’t surprise anyone that China is now the world’s biggest miner and manufacturer of asbestos products. But their flagrant disregard for truth is shocking. Knowing that asbestos is a known carcinogen, the Chinese government opted to use alternative materials when constructing the iconic “bird’s nest” and other Olympic facilities. (They did not want to upset the athletes.) But after the Olympic building wound down, the Chinese immediately returned to the use of asbestos-laden products for practically everything…ensuring an epidemic of mesothelioma and other asbestos related diseases down the road.

The fact that these developing countries are creating city infrastructure out of a toxic substance that will be virtually impossible to eradicate is bad enough, but the conference also highlighted some things we’d like to pretend weren’t happening so close to home. The United States Geological Survey (USGS) reports that 1040 metric tons of asbestos were shipped to the U.S. last year but, insanely, there are no laws requiring records of its ultimate use and distribution routes. How can this be when we know so much about the destructive power of asbestos and the train routes from the asbestos mine in Libby, Montana to manufacturing sites show a higher incidence of asbestos disease in close proximity to the tracks?

And how is it that we even allow asbestos into the United States, a country that, God bless us, employs thousands to keep out Cuban cigars and Mexican plants?

The answer is that the voices of those who profit from asbestos have been too loud for too long.

That’s why the work of ADAO is so important – and why we are proud to join their fight to create not just a voice but a chorus of people who can and will fight to ban asbestos.

(Note: We can’t possibly communicate a weekend of wall-to-wall meetings in one blog, so stay tuned for more posts here and on our focused mesothelioma website, www.mesotheliomanews.com.)

Just last month Montana’s senior U.S. Senator, Max Baucus, announced the United States Senate passage of the resolution designating the first week of April 2012 as “Asbestos Awareness Week.” This is the sixth year in a row Baucus has introduced the resolution and he certainly has every reason to keep doing it. Representing the hard hit state of Montana, Baucus saw firsthand the destructive power of asbestos: the Montana town of Libby was virtually obliterated by the incredibly irresponsible actions of a W.R. Grace vermiculite plant that took the lives of 300 people and caused untold suffering.

But, despite eight years of resolutions, asbestos largely remains “that thing that happened a long time ago.” And in the din of clamor for health and safety recognition, asbestos barely makes the list.

Although asbestos is responsible for 10,000 deaths a year in the United States alone, mesothelioma, the signature cancer associated with asbestos exposure, is hardly a household word. Just think about it. Have you seen an article on the latest mesothelioma treatment in your recent health magazine? Has your doctor talked to you about asbestos exposure? We didn’t think so. And yet asbestos-related diseases are responsible for more deaths a year than melanoma, the dreaded skin cancer that gets a great deal of media attention.

Perhaps it is “out of sight, out of mind” that keeps asbestos off our radars. It is true that the microscopic asbestos fibers are invisible to the naked eye. But what’s keeping us, decade after decade, from ignoring the undeniable scientific fact that asbestos kills? What’s more, what keeps the United States from joining over 50 other counties that have already banned the import and use of asbestos?

We think we all know the answer and it is not a new one. There is money to be made from the import and manufacturing of asbestos products. Couple that with the long latency period of the diseases associated with asbestos and you get the perfect “guilt free” storm: the folks knowingly exposing workers to asbestos today probably won’t have to face the workers 30 years later when the tiny fibers have caused deadly diseases.

That’s why it is crucial for those of us who understand the risks to join the chorus of Baucus and asbestos advocacy groups like the Asbestos Disease Awareness Organization (ADAO). We may be the only shot at protection that today’s asbestos workers have.

“Asbestos Awareness Week is a rallying cry to keep the tragedy of Libby from happening again. It’s also an opportunity to remind people that much more work lies ahead to help victims of asbestos-related diseases,” said Baucus, who was instrumental in urging the EPA to declare its first ever public health emergency in Libby, Montana. “Although we can never fully right the outrageous wrong that took place in Libby, we can fight to make sure the community has the tools it needs to heal. And, we can keep working hard to make sure the public is aware of the tragic impact of asbestos exposure.”

For his ongoing efforts on behalf of residents of Libby, Lincoln County and asbestos-victims everywhere, Baucus was presented with the Asbestos Disease Awareness Organization’s “Tribute of Hope Award” last year. Senator Tester also sponsored the bipartisan resolution.

Written by attorney Allen Vaught

Your employer may not be paying you every penny you deserve. If so, the law is on your side.

Many salaried employees are in jobs today who may not know that they deserve at least time and a half pay when they work more than 40 hours in a week. In some cases the employee is wrongfully led to believe that they are not due overtime pay.

The federal Fair Labor Standards Act (FLSA) requires that most employees be paid time and a half overtime compensation when they work more than 40 hours in a week.

Typical positions that commonly fall victim to this violation are sales people, secretaries, administrative assistants, health care workers, field service technicians and oil field workers.

Employees who are generally not due overtime pay are those who are paid a fixed salary of at least $455 per week AND who have primary job duties meeting one of the FLSA exemptions from overtime pay. In other words, someone who is paid a fixed salary may still be due overtime if their job duties do not meet certain federal exemptions. For example, some exceptions to the overtime rule are managers who have the authority to hire and fire workers; certain professionals such as accountants, teachers and engineers;  and administrators such as a human resources director who must use independent judgment on significant matters.

Baron and Budd attorney Allen Vaught has represented countless people who have been denied overtime pay. Vaught said that many times employees may not even know if they are due overtime wages. In some cases employees can receive double the lost wages going back three years in addition to attorney’s fees.

If you’re concerned about losing your job for making an inquiry, the federal government has installed some protection. The FLSA provides an anti-retaliation provision which outlaws employers from retaliating against employees for making a good faith inquiry or lawsuit for unpaid overtime wages.

Also, in addition to back pay and liquidated damages, the FLSA states that workers are entitled to recovering attorney’s fees in a successful claim.  Every case is different depending on the facts.

Most attorneys, including Vaught, will offer free initial consultations to workers concerned about lost overtime wages. You can contact attorney Vaught at 1.866.495.1255 or via email at avaught@baronbudd.com.

If you feel you may have been a victim it’s OK to speak up. Remember that the law is on your side.