July 2011 Archives

July 25, 2011

Gulf Oil Spill Update-And A Few Suggestions For Those Dealing with the GCCF

Our Law Firm continues to represent individuals, small businesses, fishermen and oystermen with losses as a result of the Gulf Oil Spill. We represent claimants before the Gulf Coast Claims Facility and also in Court Proceedings in the Eastern District of Louisiana. Today an important filing was made---Doc 3423 Supplemental Memorandum filed by Plaintiff in In Support of 912 MOTION Supervise Ex Parte Communications with Putative Class (2).pdf In this filing efforts are made to bring to the attention of Judge Barbier the unfairness of how BP has handled the Interim Payment Process. In a nutshell, the brief establishes that the GCCF and BP have violated the Oil Pollution Act by failing to implement a fair Interim Claim Process. It is well supported by statistics, affidavits and news accounts. The brief alleges that BP's failure to make timely Interim Payment Claims as required by OPA essentially forces claimants to take lowball quickpay settlement offers ($5,000 for individuals and/or $25,000.00 for businesses). A couple ofstatistics are noteworthy:

(i) As of December 2010, Less than 13.6% of Interim claimants have been paid, yet about 95% of quick claim payments had been made. "Statistics clearly indicate that hte GCCF is paying quick pay claims and not paying interim claims..." Brief p. 5.

(ii) Only 36% of all GCCF claimants have received any compensation at all from GCCP or BP.

(iii) As of June 1, 2011 there were 514,263 GCCF Claimants. Of 139,950 Final Payments issued, 114,482 were Quck Payments ($25K or $5K) and 25,468 were fully reviewed.

For any small businesses and/or oyster lease holders out there---here are a few tips:

1. At a minimum, be sure to consult with a lawyer before accepting a Final Settlement Offer and Signing a Release. We are seeing a lot of indivduals and small business owners who are settling their claims for pennies on the dollar. It is important that you consult with a lawyer to understand what damages you may be entiteld to, and if you are accepting a settlement its important to understand the legal rights you may be giving up. Remember, you can continue to get interim payments without having to sign a release.

2. If you disagree with your Final Settlement Offer from the GCCF or believe that it just was not calculated properly, a lawyer can help obtain a recalculation. We have successfully obtained recalculations for several of our clients that resulted in a significant amount of increased compmensation. We have seen inconsistencies in how GCCF Accountants are doing their calculations and it is important to ask questions, and understand how your 2010 lost profits were calculated.

3. If you receive a settlement offer, DO NOT ASSUME THAT GCCF CALCULATED YOUR LOSSES PROPERLY. We have seen many settlement offers where 2010 lost profits were improperly and/or unfairly calculated by the GCCF.

4. If you receive a deficiency letter from the GCCF it is important to respond to it in a timely and professional manner. Failure to do so will result in a delay in payment of your claim, or possibly even in a denial of your claim.

5. Oyster lease holders should NOT SETTLE WITH GCCF YET. We have reason to believe that a revised compensation formula will be published by Ken Feinberg and the GCCF in the very near future that will SIGNIFICANTLY INCREASE COMPENSATION FOR OYSTER LEASE HOLDERS. That is not to say that what the GCCF offers to oyster lease holders will be fair compensation. Unfortunatley, BP and hte GCCF continue to only look at the economic lost profits of oyster lease holders and they are not yet taking into consideration that it is damage to real property that has a separate legal significance. ALL OYSTER LEASE HOLDERS SHOULD---IN OUR OPINION--RETAIN AN ATTORNEY TO BE SURE THAT THEY ARE PROPERLY COMPENSATED. it is quite possible that the best outcome for oyster lease holders will be through the MDL litigation and not through the GCCF. Oyster lease holders should discuss their particular situation with an attorney.

Our legal team is available to answer your questions about your GCCF Claim and to discuss your options. We can be reached at 888-213-8140.

July 25, 2011

Prescription Drug Shortages Here In The USA----Are You Kidding Me?

A friend of mine is currently undergoing chemotherapy treatment for cancer. He is an incredible person, strong as an ox physically, and I am 100% confident he will pull through. He also has some of the very best doctors treating him. My friend is a Montgomery County, Maryland School teacher and also is the coach of the Scotland Stars Basketball Team that Goldberg Finnegan & Mester sponsors.

I was shocked to learn that despite his doctors best efforts, they will not be able to get his final dose of Bleomycin (chemotherapy agent) because there is a nationwide shortage of this drug. You see, the drug is no longer on patent and it is now manufactured by a generic drug maker--I believe Tevis Pharmaceuticals. Drug companies may choose not to continue to manufacture certain prescription drugs that have a relatively low profit margin, and instead focus their manufacturing resources on drugs that have a higher profit margin. This is another example of how greed and money are what drives the decision making process within pharmaceutical industry.

I have been thinking about whether drug companies that stop making a drug that saves lives and that people need are legally obligated to continue to produce the drug. Honestly, I don't think pharmaceutical companies necessarily have a legal duty to continue to manufacture a life saving drug if they don't want to. In other words, I do not think that a consumer who wants a life saving cancer curing chemotherapy drug can sue the manufacturer under general negligence and/or product liability laws because the manufacturer does not necessarily have a direct duty to consumers in general. That said, the pharmaceutical companiesmay have a legal duty to inform consumers and doctors of upcoming forseeable drug shortages--especially to patients who already have started therapy with a particular drug. The pharmaceutical industry certainly has a moral and ethical obligation to continue to produce life saving drugs, even if it does not make Big Pharma money in the short term. It is simply the right thing to do.

Unfortunately, big pharmaceutical companies don't have a heart. Moral and ethical duties do not resonate with most corporations. Since there does not seem to be a legal duty for the drug companies to do the right thing, we need legislation to protect patients such as my friend. This is an area where our government---The FDA--and perhaps State Regulatory agencies should step in. These regulatory agencies should be able to issue orders requiring the continued manufacture of much needed cancer curing drugs. Also, the FDA should require drug companies to issue notices to the medical and patient community of upcoming shortages and be forced to state the reason for the shortage.

Prescription drug shortages are a serious problem and it does not only affect cancer drugs. Drug shortages also occur with antibiotics, heart medication, blood pressure medication (Dyazide and Maxide) and even ADHD drugs such as Adderall. In 2010 there were 211 reported shortages. So far in 2011 there have already been about 196 known shortages. This is not a good trend. Currently, the Food and Drug Administration does not have the legal authority to require drug companies to report shortages or reasons for shortages. There is some information available on the FDA Website Drug Shortages FDA.pdf-- but the Website clearly states:

"The informaiton provided in this section is provided voluntarily by manufacturers. FDA cannot require firms to report the reason for shortage or duration of the shortage or any other information about shortages."

Without accurate information from the pharmaceutical industry about why there are shortages and when these shortages will occur, it is impossible for doctors and patinets suffering from cancer to make appropriate medical decisions. Patients and doctors are encouraged to report known drug shortages by email at drugshortages@fda.hhs.gov

I was shocked to learn that drug shortages could occur with life saving drugs such as Blyomycin. The good news is that there is currently legislation making its way through Congress that may solve the problem. The text of The Preserving Access to Life-Saving Medications Act of 2011 (H.R. 2245) can be found here.HR 2245 Preserving Access.pdfBleomycin.jpg The proposed law requires drug manufacturers to report planned discontinuances of at least 6 months in advance of the discontinuance or as soon as they become aware of the discontinuance. If drug manufacturers knowingly fails to provide this information they are subject to a fine of $10,000.00 per day up to $1,800,000.00. The law also requires the GAO to conduct a study to analyze the law's impact on the FDA ability to prevent prescription drug shortages.The law does contain a few loopholes that allow for drug companies to reduce the 6 month notice period

My analysis of this proposed law is that it is a good first step in the right direction, but it does not quite go far enough. Most likely the law was watered down by lobbyists for the pharmaceutical industry. Ideally the law should require the drug company to certify the reason for the shortage and/or discontinuance of the drug. The law does not seem to require such information but ironically, it requires that the FDA examine the causes of drug shortages. Wouldn't it make sense to have the manufacturers provide the FDA with the critical information needed to conduct this study/examination???

I am also concerned that the proposed legislation gives too much Rule Making Authority to the Secretary of Health and Human Services--thus allowing lobbyists for the drug companies to continue to weigh in on how the law is implemented and enforced. Hopefully, as soon as Congress resolves the debt crisis T"he Preserving Access to Life-Saving Medications Act of 2011" will be passed with an added provision that requires the reason for the shortages. In the meantime, we recommend that consumers do the following:

1. Call your U.S. Representatives and Senators and urge them to pass the The Preserving Access to Life-Saving Medications Act of 2011.

2. If you have prescription medications, don't wait until you are totally out to refill the prescription. Get an earlier refill so that if you run into an issue with the drug being out of production you have time to speak to your doctor about a reasonable alternative.

3. Consider asking your pharmacist if they are aware of any problems getting adequate supplies of the prescription drugs you rely on.

4. If you are diagnosed with cancer, be sure to ask your doctor about whether supply issues may impact the proposed treatment plan. Do your own research on the Internet and the FDA Website. Ask questions!

Kevin I. Goldberg
Goldberg, Finnegan & Mester, LLC
(888) 213-8140 x102

July 18, 2011

Bedore Tour Bus Crash in Western New York Impacts Washington DC Residents

Unfortunatley there was another terrible tour bus accident in New York this weekend that has killed and/or injured residents of the Washington, D.C. area. Our thoughts and prayers go out to the families of those involved in the crash. The purpose of this blog post is to provide some preliminary information to the Washington, D.C. Victims of the bus crash that may be helpful. This does not create an attorney client relationship though. If you are interested in hiring a lawyer for the crash, call us at 888-213-8140 or email me at kgoldberg@gfmjustice.com. Whether victims of the crash hire our firm or another firm, I strongly suggest that the victims and families of those killed hire a lawyer promptly for this kind of serious accident case.

The Bedore tour bus was carrying passengers from Washington, DC to the Niagra Falls area of New York. Two passengers were killed and 35 other Bedore passengers suffered injuries---news groups have reported that the passengers were mostly from India. The accident happend in Steuben County, NY on Interstate 390. While the cause of the crash is still under investigation, preliminary indications are that it was caused by either a tire blow out or by the tour bus driver falling asleep (a passenger has reported that the driver fell asleep).

Our law firm has been actively involved in prosecuting and investigating the May 31 tour bus crash in Virginia. The tour bus industry is under intense scrutiny by the Federal Motor Carrier Safety Administration as there have been a huge uptick in fatal accidents on tour busses. Frankly, the tour bus industry needs to do a much better job of regulating itself, making sure that its busses are safe and properly inspected, and making sure that the drivers are not overworked and have adequate training and supervision. At first glance, it appears that the company that owned the tour bus, Bedore Tours (DOT # 16811) out of North Tonawanda, NY, has a satisfactory safety record (satisfactory as of 2/10), further investigation is necessary to confirm this. To learn more about the safety record of Bedore Tours, you can look on the Federal Motor Carrier Safety Administration Website, or click here to see the relevant reports Bedore Tours FMCSA.pdf.

Although we do not know for sure, it seems that the bus crash was likely caused by driver inexperience, the driver falling asleep at the wheel, failure of Bedore to conduct proper safety inspections and maintenance of th bus.

Public Records indicate that the Bedore Tour Bus that crashed in New York had only $5,000,000.00 in insurance coverage to cover alll claims relating to the crash. While $5 Million Dollars sounds like a lot of coverage, this is basically the minimal limits for this kind of tour bus, and unfortunately, may not be enougth to properly compesate the Washington, D.C. District of Columbia individuals and families off of those injured and/or killed in the crash. The insurance policy probably also has MedPay and/or PIP coverage that may cover up to a certain amount of medical bills and/or funeral expenses (often with this kind of insurance policy it is a low amount of Medpay Coverage---likely $2,000.00-$5,000.00 per passenger). The Washington, D.C. victims of the Bedore Tour Bus crash should notify their auto insurance carrier of the bus crash and talk to a lawyer about possibly making a claim for uninsured/underinsured motorist coverage in case the liability coverage on the bus/driver is not adequate to cover all losses. Also, the Washington, D.C. victims may have PIP coverage on their auto policies that may cover medical expenses but making a PIP claim in Washington, D.C. can be tricky, must be done within 60 days of the loss and you will possibly give up your right to pursue a liability claim. Victims should speak to a lawyer before making a PIP claim on any auto policy issued in the District of columbia. For more information you can call us at 888-213-8140.

Again our thoughts and prayers go out to the families of those affected by this tragic accident. My advice is that anyone injured in the tour bus crash, and the families of those killed in the crash should hire a lawyer who can hold those responsible for the crash accountable and make sure that the victims are properly compensated. We are here to help and the consultation is free. 888-213-8140 or check out our website www.gfmlawllc.com or email me at kgoldberg@gfmlawllc.com.

Kevin I. Goldberg
Goldberg, Finnegan & Mester, LLC