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Wednesday, November 26, 2014
Depakote: A Possible Cause of Autism?
Depakote: A Possible Cause
of Autism?
By: Anna Blood,
Intern
The Cochran Firm
Depakote, a
valproate product, is an epilepsy drug that was approved by the FDA in 1983 and
is manufactured by AbbVie Inc, formerly Abbott Laboratories. Valproate
medications are used to treat seizures, manic or mixed episodes associated with
bipolar disorder, and to prevent migraine headaches. Valproate medications include:
valproate sodium (Depacon), divalproex sodium (Depakote ER and CP), valproic
acid (Depakene and Stavzor) and their generics.
According to
the FDA, valproate is known to cause malformation of an embryo. In recent years, women’s use of Depakote and
other valproate medications during pregnancy has been linked to an increased
risk of severe birth defects and malformations, including spina bifida, cleft
palate, abnormal skull formations and other health problems.
In 2011, the
FDA released the results from the Neurodevelopmental Effects of Antiepileptic
Drugs (NEAD) study that showed children exposed to valproate medications while
their mothers were pregnant had decreased IQ scores by age 3 when compared to
children whose mothers took other antiepileptic drugs.
Since then,
the FDA has worked with valproate manufactures to revise the drug warning
labels to include the results of the NEAD study and advises health care
professionals that valproate medications, such as Depakote, should not be taken
by pregnant women for the prevention of migraine headaches.
The FDA assures that stronger warnings about the use
during pregnancy to treat migraines will be added to the drug label and will be
changed from a category D, where the potential benefit of the drug during pregnancy
may be acceptable despite potential risks, to a category X, where the risk of
use in pregnant women clearly outweighs any possible benefit of the drug. Additionally,
the FDA recommends that pregnant women with epilepsy or bipolar disorder should
only use valproate products if other medications are not effective in treating
the condition.
Last year,
the Journal of the American Medical Association (JAMA) published results from a
Danish study directly linking autism to children whose mothers use valproate medications
during pregnancy. The study examined data on every child born in Denmark from
1996 to 2006. The study found that 4.24% of the children exposed to valproate
had an absolute risk of developing autism spectrum disorders in life, as
compared to the 1.2% of children not exposed to the medication who were likely
to develop autism.
JAMA concluded that,
“Maternal use of valproate during pregnancy was associated with a significantly
increased risk of autism in the offspring, even after adjusting for parental
psychiatric disease and epilepsy. For women of childbearing potential who use
antiepileptic medications, these findings must be balanced against the
treatment benefits for women who require valproate for epilepsy control.”
More recently, in August of 2014, AbbVie Inc. added autism
as a potential risk and to the warning label of all valproate products. This
change came in response to a recent observational study suggesting that
children exposed valproate products during pregnancy had a greater risk of
developing autism. While the FDA did approve the change to the warning label, it
did not issue a Drug Safety Communication confirming the drugs link to autism.
In the study, children born to mothers who had used
valproate medications during pregnancy had 2.9 times the risk of developing autism
spectrum disorders compared to children not exposed to the medication. The
absolute risk for autism spectrum disorders was 4.4% in children exposed to valproate
and 1.5% in children not exposed to the drug. According to the FDA, “Because the study was
observational in nature, conclusions regarding a causal association between in
utero valproate exposure and an increased risk of autism spectrum disorder
cannot be considered definitive.”
Despite
the surmounting evidence that Depakote and other valproate related medications
may be linked to autism, the FDA is yet to state whether or not there is a
definitive link present. For now, warning labels on valproate medications seem
to be the only existing safeguard in protecting expecting mothers and their
children from the risks associated with the use of valproate and the
development of autism.
posted by The Cochran Firm at 11:42 AM
Airspace Wars: Attack of the Drones
Airspace Wars: Attack of the
Drones
By Caleb Thurston, Intern
The Cochran Firm
It is no longer breaking news that the U.S. Military uses
drones, officially known as Unmanned Aerial Systems (UAS’s), to assist them in
battling the War on Terror. The majority of voters in the U.S. approve of drone
usage for this purpose. However, how will U.S. citizens feel when drone usage
is extended to local police forces, public agencies, or for commercial
purposes?
- Legislation passed by the U.S. Congress in 2012 mandated the FAA to accelerate the issuing process for Certificate of Waiver and Authorizations (COA’s). COA’s are essentially the licenses required to operate drones. The first non-military use of drones was extended for law enforcement purposes. Law enforcement utilizes UAS’s for numerous reasons:
- Cost effective surveillance (exponentially cheaper than helicopters)
- Significantly less risks for officer safety
- Versatility of accessories (cameras, heat sensors, audio devices, nonlethal munitions)
- Reduces human error in law enforcement
- Noncriminal applications (auto accidents, fires, chemical spills, or other emergencies)
Drone use can be beneficial to the nation as a whole, but it
does not come without issues. At issue is the possibility of police
surveillance and monitoring.
The fourth amendment protects people “in their persons,
houses, papers and effects against unreasonable search and seizure.” Under the
law what is an “unreasonable” surveillance search?
The seminal holding in Katz found that the fourth
amendment “protects people not places.” This case established a two-part test
for dealing with this issue; (1) person must have exhibited an actual
subjective expectation of privacy, and (2) that expectation of privacy must be
one that society is prepared to accept as reasonable.
In two cases subsequent to Katz, Ciraolo and Riley
the Court held that law enforcement officers flying at an altitude of 1000 feet
and 400 feet respectively was not a search and there was no reasonable
expectation of privacy. The Court opined that any member of the public flying at
these levels could have seen these illegal crops.
A pivotal case on technology came in the matter of Kyllo,
when the Court held that heat sensors utilized from the outside of a residence
after police observation of excessive use of electricity, and snow melting over
one unit of a duplex and not the other cannot be used without a warrant. Heat
sensors identify human movement, lamps, and other areas from outside the
residence where there is a reasonable expectation of privacy.
What do these cases
mean to you?
“If police can see something from airspace in which they
have a lawful right of access to be, there is no reasonable expectation of
privacy.”
Under the law should privacy expectations decrease as modern
technology becomes more used by the general public? If UAS usage is not
restricted, there will virtually be no protection against UAS flight in areas immediately
surrounding the property, or through the “curtilage,” (an area immediately
surrounding the premises where there is a likely expectation of privacy). This
could allow surveillance of activities inside the premises.
Could drones be used
in the future for non-military, non-law enforcement purposes?
In October 2014, the FAA authorized a handful of video
production companies within the closed confines of their video production sets.
Additional businesses such as Amazon, Google and Facebook have now petitioned
the FAA to obtain a COA for utilizing drones. If authorized, these businesses
will be able to pioneer the use of drones in their industries.
Potential Solutions:
- Congress could pass law regulating the use of drones.
- Courts could interpret laws and the constitution to limit the use of drones where they may violate a reasonable expectation of privacy. These interpretations could take an extended period of time as cases and controversies arise regarding these matters.
- The FAA could limit and regulate drone flight, but this would have to be on a rational based on “safety” rather than on the “expectation of privacy.” FAA action could be limited due to Congress’s recent mandate to expedite issuance of COA’s for drones.
Each of these possible solutions must consider whether it is
time to revise the concept of privacy rights under the law to include
protection against invasion of privacy by non-government parties.
posted by The Cochran Firm at 11:32 AM
Monday, November 24, 2014
Safe Travels this Holiday Weekend
AAA has released its 2014 Thanksgiving Holiday Travel
Forecast and is predicting 46.3 million people will travel more than 50 miles
from their home between Wednesday, November 26th and Sunday, November
30th. This represents a 4.2 increase over 2013, most likely due to
this year’s unusually low gas prices. According to AAA, 90 percent of those
traveling over Thanksgiving Weekend will be doing so by car.
Nearly 42 million motorists on the road over the same
weekend increases risks for car accidents.
To help reduce your risk of causing an accident, the personal injury attorneys
at The Cochran Firm recommend you:
- Do not drink and drive
- Obey all traffic signs and signals
- Be conscious of weather conditions and adjust driving appropriately
- Give yourself plenty of time to reach your destination
- Drive calmly and avoid reckless or erratic behavior
- Do not text or use a cellphone while driving
- Avoid common distractions such as eating, grooming, and fiddling with GPS
If you are involved in a car accident this weekend, you will
want an experienced attorney on your side. We are here to take your case and
fight for your rights, and to help ensure you are provided the full
compensation you are due.
To schedule your free consultation with one of our personal injury
attorneys, please contact
The Cochran Firm today.
posted by Admin at 9:00 AM
Friday, November 21, 2014
Two Stories of Desperate Mothers
Two Stories of Desperate Mothers
By Leslie Watkins, Intern
The Cochran Firm
A mother
will do what is best to protect her child, but when that decision results in
death, the law will adjudicate the liable party. Gigi Jordan, a millionaire
medical entrepreneur with an autistic eight-year-old son, Jude Mirra, received
a conviction of manslaughter for his death.
Jordan had
faced the possibility of life in prison but received a lesser charge of
manslaughter allowing a term between 5 and 25 years. Her defense team was able
to prove Jordan’s circumstances for killing her son as being under the
influence of extreme emotional disturbance.
Circumstances
surrounding the killing of Mirra replayed repeatedly as the defense and prosecution
teams presented the facts to the jury. The defense claimed Jordan was a
desperate mother who believed she was protecting her son from two ex-husbands.
One ex-husband affiliated with a mob threatened to kill her. The other
ex-husband, a yoga instructor, sexually abused her son. The ex-husbands received
no charges nor alleged the claims to be true, despite Jordan reporting the
abuse to her therapist and local authorities.
Initially,
as laid out by the defense, Jordan checked into a hotel on the day of her son’s
death using only cash without a reservation. She used a syringe to force
painkillers and anti-inflammatory drugs mixed with vodka and orange juice down her
son’s throat and then made a failed attempt to end her own life by overdosing
on the pills.
Jurors
found the evidence presented during trial convincing, as Jordan killed her son
under the influence of extreme emotional disturbance rather than with intent to
kill, resulting in the murder of her own son. Jordan’s defense team is looking
to file a motion for a retrial.
Another
mother living in Oregon with an autistic 6-year-old son also received charges
of manslaughter in addition to murder for killing her son. Jillian McCabe took
her son, London, for a walk and threw him off the bridge into Yaquina Bay,
shortly after calling 911 to report her actions.
McCabe’s
family said she was under extreme emotional stress after becoming the main
family caregiver after the loss of her father, the recent decline in her
husband’s health, and the uphill battle of caring for her autistic son. She had
attempted suicide several times and told the psychiatrist she was hearing
voices again. After London’s diagnosis of severe autism, McCabe created a blog
sharing London’s life, often expressing her frustrations because London was different
but thanking generous strangers who helped the family financially.
At the
time of their son’s killing, each mother seemed convinced that it was the morally
right thing to do. From very different social and economic backgrounds, both women
suffered from extreme emotional distress and had exhibited suicidal behaviors. It
was not enough that both troubled women sought psychiatric help. The fates of
the boys’ lives were in their mothers’ hand, and both lives sadly ended in
tragedy.
Even though
in the mind of each mother, desperate circumstances justified ending their
son’s lives, these deaths are still criminal. The state of a mother’s despair
does not provide a means by law to justify killing a child, even one afflicted
with a disability, a disorder, a disease, or a syndrome.
posted by The Cochran Firm at 10:23 AM
Monday, November 17, 2014
Most Nursing Home Care Levels Lower Than Reported
The Center for Public Integrity has recently conducted a
thorough analysis of the financial records of thousands of nursing homes across
the Unites States – and the results are quite alarming. According to the CPI, staffing
levels reported to government websites are not in line with actual payroll
reports.
Over 80 percent of nursing homes involved in this analysis misreported
levels of registered nurses on staff to pubic websites. While how much additional
staff is falsely reported varies from home to home, at least 25 percent of
these homes doubled their skilled-staffing numbers on public websites.
Tragically, many families rely on these websites when choosing a home for their
loved ones.
Nursing home
abuse and neglect is a growing problem in our society and one often best
combatted by selecting a home with a high skilled-staff-to-patient ratio.
Finding this information is becoming much harder as necessary safeguards preventing
false reports are not currently in place on many nursing home ranking websites.
If you find a loved one has been mistreated in their care facility, you need an
experienced attorney on your side immediately to help guard against further mistreatment
and to see that justice is served.
To schedule your free consultation with one of our
experienced nursing home abuse attorneys, please contact The Cochran
Firm today.
posted by Admin at 6:07 AM
Friday, November 14, 2014
FEEDING FRENZY
FEEDING FRENZY
By Amanda Brigman, Intern
The Cochran Firm
Fort Lauderdale's Stranahan Park has recently become a
hotbed for police activity. However, it is not the criminal activity that usually
comes to mind when you hear someone has been arrested. A new city ordinance was
passed, and at least six people have been cited or arrested. Who was included
in this motley crew? A 90-year-old man, two pastors, and a minor, among others.
What was their crime? Feeding the homeless.
Early in the morning on October 22, 2014, the Fort
Lauderdale Commission voted on an ordinance that would tighten the laws on
humanitarian aid to the homeless population – a growing problem in Ft.
Lauderdale. The new law requires a state certified food manager be in
attendance when feeding the public outside and making port-a-potties
available. Violation of the ordinance
carries with it a fine of up to $500 and 60 days in jail. The law went into
effect on October 31, 2014.
The first citation was on November 2, 2014. The first and
most notable of those charged was Mr. Arnold Abbott, a 90-year-old has been
helping feed the Ft. Lauderdale homeless for over 20 years. Abbott, as an advocate for the homeless, has
already seen the inside of a courtroom. He successfully won a lawsuit against
the city of Ft. Lauderdale that sought to keep feeding off of the beaches in
1999. Abbott says he will continue to fight this ordinance as long as he needs
to, even if it means going to court again. Abbott was also arrested a second
time on November, 4, 2014, as he feeds the homeless in the park on Sundays and
Wednesdays.
This ordinance is one of a few ordinances the city has
passed that affect its homeless population. Ft. Lauderdale also passed
ordinances outlawing storage of personal belongings in public places and
toughened their stance on going to the bathroom in public, though the city has
plenty of public bathrooms available to the homeless for use. The mayor of Ft. Lauderdale, Jack Seiler,
defended the commission's vote in favor of the new law. Offering that though
the new law has caught the attention of the media around the nation, it has the
support of the people in Ft. Lauderdale. According to the mayor, this new
ordinance provides for a safer and healthier environment for the feeding
programs to take place. The city is hoping the homeless will seek out community
programs and houses of worship in the area that are offering to feed the
homeless indoors. Activists in favor of the new law are hoping this will
decrease the homeless in the area, and they argue the old way of doing things
just gave the homeless a meal and perpetuated the cycle of homelessness in the
area without providing a solution.
Homeless advocates around the city, like Arnold Abbott,
argue the city is just trying to drive the homeless out, or hide them out of
sight rather than addressing the problem. Abbott's organization, Love Thy
Neighbor, Inc. has a priority of feeding the homeless, as well as helping them
re-enter society. Rosemary Servoky was
homeless and met Abbott through his feeding program six years ago when she was
addicted to crack cocaine. Now she has
completed culinary school and continues to help Arnold Abbott serve the
homeless in hopes that she can help someone else.
On November 12, 2014, ten days after the first citation was
made, a standoff was underway between the police and Arnold Abbott as he once
again prepared to feed the homeless in Stranahan Park. Abbott politely offered
the officers some food, which they declined, and Abbott proceeded to open up
his food line. Though two churches had offered up their space to Abbott for
feeding, he declined. The police were left with no other option but to write
him another citation. And then, they left him to continue feeding the homeless
of Ft. Lauderdale. Abbott wants everyone to know that he will do whatever he
needs to do to continue to feed the homeless, and he will be back next week.
Unfortunately, he feels this will end up in court, just as it did before.
posted by The Cochran Firm at 8:48 AM
Thursday, November 13, 2014
GM’s Response to Dangerous Vehicle Defects
GM’s Response to
Dangerous Vehicle Defects
By Caleb
Thurston, Intern
The Cochran Firm
It’s hard to believe that the weight of car keys could
increase the risk of losing control of your vehicle, cause you to crash, and result
in serious injury or even death. However, many owners of GM vehicles currently face
this problem. When key chains are too heavy and the vehicle jars or goes off road,
the force of this jolt can cause the vehicle’s ignition to slip out of the
“run” position. Subsequently, the engine, power steering, power braking, and
airbags will fail immediately, creating an extremely dangerous situation for
the driver.
When defects are discovered who is responsible to remedy the
issue, and how does this process work?
Vehicle defects are typically discovered in two ways. Vehicle
manufacturers discover the defect, or the Secretary of Transportation discovers
the defect and notifies the manufacturer of the issue. When a vehicle manufacturer
discovers a defect they must decide in good faith whether the defect is
significantly related to motor vehicle safety. If so, the manufacturer must
notify the Secretary of Transportation, automotive dealers, and all most recent
owners of that type of vehicle “known to the manufacturer.” “Known to the manufacturer,”
means each registered owner of the defected vehicle whose name and address are
reasonably ascertainable by the manufacturer.
According to the National
Traffic and Motor Vehicle Safety Act (NHTSA), manufacturers’ notice must
include:
·
A clear description of the defect
·
An evaluation of the risk to motor vehicle
safety reasonably related to the defect
·
The measures to be taken to remedy the defect
·
A statement that the manufacturer will remedy
the defect without charge
·
Time period allowed for repairing the defect
within
If notice fails to meet each of these requirements, the
Secretary of Transportation may order the manufacturer to comply with notice
requirements or may take other action as needed. A hearing can be conducted,
and depending on the severity of the possible risks associated with the defect,
the Secretary may order manufacturers to take additional steps to find and
notify customers.
Manufacturers may not escape liability in these types of
cases by simply notifying dealers who sell their products. Dealers could fail
to provide proper notification to customers or properly repair defected
vehicles. Even if dealers are notified, the injuries of the customers were significantly
related to the manufacturer’s defect, and that defect is held to be the legal
cause of those injuries.
In order for the acts of a third party (party other than the
manufacturer) to become the only legal cause of the customer’s injuries:
·
The act of a third party must not be foreseeable,
or reasonably anticipated, by the manufacturer,
·
The act of a third party must not be triggered
or caused by the manufacturer,
·
And the act of a third party must be sufficient,
or enough by itself, to cause the customer’s injuries.
A manufacturer may escape liability if customers fail to
comply with a reasonable recall program within the given time period. Failure
to comply with the requirements of a recall program is sufficient to break the
chain of causation between the wrongful acts of the manufacturer and the
injuries of the plaintiff. Failure to participate in the recall program during
the assigned timeframe then becomes the cause of the injuries sustained.
Why Won’t Customers Partake in Recall Programs?
Federal law requires manufacturers to remedy defects that
affect motor vehicle safety for free. The average recall-repair rate is 75% in
the U.S. per year, but recently fewer people are taking their cars in for
recall repair. To offset this issue, GM is now offering $25 online gift cards
to different stores for customers who comply with recall programs. The NHTSA
supports this program, declaring that “it shows a heightened level of
commitment by GM to make sure recall repairs are made.” However, this collaborative
incentive promotion between GM and NHTSA is only offered to those who have done
absolutely nothing to set up recall repairs.
Will incentive programs eventually produce a negative
impact? Since only those who waited until the last minute received gift cards, will
customers of defected products wait until the last minute to pursue recall
repairs in hopes of receiving award incentives?
posted by The Cochran Firm at 2:10 PM
Tuesday, November 11, 2014
Fireball Whiskey: To Drink or Not to Drink?
Fireball Whiskey: To Drink or Not to Drink?
By: Anna Blood, Intern
The Cochran Firm
Fireball Whiskey, the popular cinnamon flavored liquor is
facing recent criticism due to fears over the use of propylene glycol, a
chemical used in anti-freeze. Fireball has recently been recalled in Sweden,
Finland and Norway after a batch of the North American recipe, which contains
higher levels of propylene glycol than the European batch, was shipped there.
Fireball’s North American formula was found not to be in compliance
with European regulations, which calls for less than 1 gram per kilogram of propylene glycol while the North American formula allows up to 50 grams per kilogram of the substance. Sazerac, the New Orleans based beverage company that owns Fireball, stated that its North American formula was shipped to Europe, and one ingredient was not in compliance with European regulations.
Propylene
glycol is a flavorless, odorless, synthetic substance that absorbs water and helps
products maintain moisture. The substance is used as a less toxic and
environmentally safer alternative to ethylene glycol, which is toxic to humans.
Today, propylene glycol is
widely used in food, tobacco products, pharmaceuticals, and cosmetics in the
U.S. The substance acts as a thickener, stabilizer, and flavoring agent and is
also used to create artificial smoke and e-cigarettes.
The
FDA stated that propylene glycol is “generally recognized as safe” and has been
approved for use in food and other various products. The substance is typically found in products
that are heavily processed such as sodas, store bought cake mixes, and ice
cream. However, the CDC has determined that toxic levels of the substance are
almost impossible to achieve through oral consumption of consumer products.
Despite
this, the Department of Health and Human Service’s Agency for Toxic Substances
and Disease Registry does consider propylene glycol a toxic substance. When
consumed in large quantities, it can lead to some minor health problems and can
increase the amount of acid in the body. According to the CDC, propylene glycol toxicity has only been reported
rarely and in unusual circumstances. For example, toxicity may result from
excessively large injections of propylene glycol-containing medications and
when topically applied, increased sensitivity may be seen in people with
pre-existing skin and eye conditions.
Sazerac
defended its product by stating that, “absolutely safe to drink and the use of
propylene glycol in Fireball creates no health risk whatsoever.” The substance
is used as a flavoring ingredient in the whiskey and is used in very small quantities,
less than one eight of the amount allowed in the U.S. Additionally, Sazerac
anticipates having Fireball back on the shelves in Sweden, Norway and Finland
within 3 weeks while the U.S. has no plans to ban the whiskey.
Despite the alarming concerns over its use in
Fireball, propylene glycol has been used in over 4,000 food, beverage, pharmaceutical
and cosmetic products in the U.S. for more than 50 years. Most people consume
propylene glycol everyday in soft drinks, sweeteners and other products. It is
safe to say that even if one avoids consumption of Fireball, they cannot avoid
consumption of propylene glycol all together. For consumers to truly be
protected from any health risks associated with the consumption propylene
glycol, it is up to the FDA, not the manufacturers of Fireball, to prevent
this.
posted by The Cochran Firm at 9:11 AM
Monday, November 10, 2014
Unlawful Retaliation Claims on the Rise
According to the Equal Employment Opportunity Commission,
2013 marked the 8th straight year of increases in unlawful retaliation
claims filed by employees. There were over 38,500 claims made last year
involving employment
issues such as demotions and firings, many of which centered on race, gender,
and other types of discrimination. The EEOC believes the increase in claims is
due to more employees being aware of their rights.
Employment law is incredibly complex and, in many cases,
laws are stacked to favor employers. Even when workers have a strong union, employers
often try to maneuver around legal issues and engage in activities that are
just plain wrong. When you are the victim of any type of mistreatment at your
job, you are entitled to seek justice through legal action.
The employment law attorneys at The Cochran Firm offer swift
and effective representation for workers who have been wronged by their
employers. We would be honored to meet with you free of charge to discuss your
case, your rights, and the most effective way to get the justice you are due.
To schedule your free consultation with one of our
employment law attorneys, please contact The Cochran
Firm today. We have offices in several U.S. cities from which our attorneys
represent workers throughout the nation.
posted by Admin at 8:36 AM
Thursday, November 6, 2014
Mandatory Ebola Quarantines Expose Legislative Issues
Mandatory
Ebola Quarantines Expose Legislative Issues
By Caleb Thurston, Intern
The Cochran Firm
Since the outbreak of Ebola, U.S. medical and military
professionals are traveling to Ebola infected communities of Western Africa to provide
assistance to these areas. This assistance is beneficial in the sense that it
seeks to prevent further outbreak of Ebola by attacking the disease’s origin.
However, traveling to provide assistance also creates several potential health
and safety risk issues for the general public upon returning to the United States.
As the first round of these volunteers are beginning to
return to the U.S., federal and state governments are finding themselves legislatively
unequipped to prevent further spread of Ebola. Outbreaks of other communicable diseases
in the past have led government officials to look at the Pentagon’s Department
of Defense policy on this issue. This policy states that upon returning from
areas infected by communicable diseases, as long as individuals are asymptomatic,
they may not be detained.
Even though this federal policy guides the analysis of this
issue, the dilemma is that this policy is based on a presumption. The presumption
is that a person cannot transport communicable diseases unless the person is showing
symptoms. However, this presumption is flawed because people infected with
Ebola may not show signs of the illness for up to twenty days after exposure.
Under this federal policy, people carrying Ebola returning to the U.S. could
not be detained or quarantined since they would likely not show symptoms initially.
Then, once these people arrive back in their home communities, these symptoms
could activate, making them contagious, potentially infecting those around them
and the general public.
While individual states typically use the Department of
Defense’s policy as a guideline for how to handle incoming travelers from
infected locations, each state has the majority of authority to pass more
restrictive laws regarding health and welfare. The concept of “federalism”
provides that any authority not expressly given to the federal government in
the constitution is passed down to the states. The states may independently
govern these issues as so long as their regulations do not violate any
individual’s fundamental constitutional rights by confining them without due
process of law. Issues arise as some states take more restrictive measures such
as mandatory quarantines of asymptomatic individuals without their consent or a
valid court order.
Pentagon officials refuse to use the word quarantine and
refer to these procedures as controlled monitoring. Mandatory controlled
monitoring may take different forms. The U.S. Army is mandating detainment of
asymptomatic soldiers for twenty-one days at a secured facility in Italy before
returning to the United States. Department of Health officials in New York City
are mandating in-house detainment for twenty-one days, under both passive and active
monitoring. “Passive” is where individuals take their own temperature twice
daily. “Active” is where state public health authorities visit the person’s
house to take their temperature two to four times daily. In New York, detained individuals
are given a due process hearing in regards to the constitutionality of their
detainment. New York City is exempt from the statewide public health law, which
mandates a magistrate’s order for detention. Here, the Commissioner of Health
Department may authorize detentions.
In New Jersey, a medical volunteer was detained involuntarily
in a hospital tent for twenty-one days, without a court order or a due process
hearing. This person obtained legal counsel and is bringing a lawsuit
challenging the constitutionality of her detainment. This first instance where
a detainee has brought legal action against a state for mandatory Ebola
quarantines may not be the last. Detained individuals would be required to put
their entire life on hold for three weeks, could not travel freely, could not
go to work, could risk losing their job, and could suffer severe strains on
their finances and intimate relationships. Detainment could ultimately create a
negative influence on future volunteerism.
Legislation must adapt to the discovery of new medical
diseases that were not contemplated at the time of enactment. Whitehouse
officials are still developing a tier-based approach. Under this plan, level of
detainment would be related to possible contagiousness levels. However, it is
still under development and more travelers are returning form Ebola infected
areas each day.
posted by The Cochran Firm at 3:11 PM
Wednesday, November 5, 2014
Suspected Terrorists’ Rights Versus Public Safety
Suspected Terrorists’
Rights Versus Public Safety
By
Caleb Thurston, Intern
The
Cochran Firm
There
is widespread confusion about which civil and privacy rights extend to
individuals suspected of terrorist activity. According to the matter of Boyd v. United States, the United States
Supreme Court held that although the right to privacy is not expressly stated,
it is implied from the first, fourth, fifth, and ninth amendments.
United States v. Katz is the modern case that
is applied by courts facing fourth amendment privacy rights issues. Here, the defendant utilized a public
phone booth to communicate gambling information from Los Angeles to Boston. FBI
agents planted a listening device on top of the telephone booth and recorded
the petitioner’s phone conversations after extensive surveillance. The Court held that “the fourth
amendment protects people not places,” and the defendant’s motion to suppress
that evidence was granted. According to
the analytical test employed in Katz,
an act of government agents is a violation of an individual’s right to privacy
when, (1) the individual exercised a subjective expectation of privacy, and (2)
that expectation of privacy must be one that society is prepared to accept as objectively
reasonable.
Following September 11th
attacks on the U.S., American citizens willingly gave up some privacy rights
acknowledged by Katz to allow the
government to effectively prevent future terrorist attacks. As a result, only six weeks after the
attacks, Congress introduced the USA PATRIOT Act of 2001. This introduced
changes to over fifteen U.S. statutes which George W. Bush signed into law
forty-five days after the attacks.
The Patriot Act allowed the
federal government to strengthen national security by expanding its
surveillance and investigative authority. The act contained many provisions that
were originally rejected by Congress but then immediately passed without debate
following the events on September 11th. Some of these provisions violated
privacy rights of American citizens in exchange for enhancing national security.
Under the Patriot Act, the
government had a lower burden of proof for warrants and was only required to
have reasonable suspicion rather than probable cause. This increases the
likelihood that warrants will be used improperly where an officer has no real
suspicion of criminal activity. These types of issues require balancing the
privacy and civil rights of suspected terrorists with the public right to
safety. If the two are relatively equivalent the balance is tilted toward
public safety.
On December 16, 2005, fifteen
days before the expiration of the Patriot Act, White House Press Secretary
released a statement demanding a minority of Senators to stop delaying the
reauthorization of key provisions. It re-emphasized the importance and
effectiveness of the act and stated that the Senate is responsible for making
sure the nation is not without this “critical law for even a single moment.” The
Executive branch feared the filibuster would allow the act to expire, leaving
the nation temporarily unable to investigate possible terrorism threats.
The Act was finally reauthorized
just before its expiration but not without certain modifications. Since the
reauthorization of the new Patriot Act, significant issues surfaced about the
lack of oversight of NSA abilities to investigate so called national security
threats. The Foreign Intelligence Surveillance Court gave the NSA secret
approvals authorizing “sweeping data collection,” of records on all U.S. phones. This violated Section 215 of the Patriot Act
which only allows the collection of data that could be “relevant” to terrorism.
The proposed USA Freedom Act
would “end the bulk collection of phone records, limit the NSA’s power and
tighten oversight.” Republican Congressman Rogers and Democratic Senator Feinstein
are fighting against the USA Freedom Act to protect NSA’s surveillance and
investigative authority. They introduced another bill which would promote
transparency while still supporting sweeping data collection. If the USA
Freedom Act is not passed, intelligence could completely lose their power when
the Patriot Act expires again in 2015.
Even with the most diligent legislative
action and the most objective executive action, there must be review under the
doctrine of the separation of powers. The oversight of each branch’s actions is
by process of Judicial Review. Without this judicial power, the other two
branches of government could become too powerful. It is essential that the
courts conduct a ser review seriously and diligently. During this process an
independent federal magistrate will conduct an ex parte review to determine
whether there is sufficient information to rise to reasonable suspicion and
probable cause. Additionally, to increase transparency, an annual report
redacting the specifics should be provided to the senate judiciary committee listing
type and quantity of warrants issued or denied throughout the year. This
process ensures the integrity of each branch of government as well as the due
process rights of the suspect and the public’s safety.
posted by The Cochran Firm at 2:26 PM
Xarelto: A Thin line to Multi-District Litigation
Xarelto: A Thin line to Multi-District Litigation
The Cochran Firm
Xarelto is a new generation of blood thinner and has been
walking a “thin line” between helping people and harming them. Xarelto
makers, Bayer and Johnson & Johnson, are facing multiple lawsuits across
the nation where plaintiffs are claiming Xarelto caused them uncontrolled bleeding
(such as internal bleeding, brain hemorrhaging), and even wrongful
death.
Xarelto is an alternative to Coumadin, also known as
warfarin. When using any blood thinner there is a risk of the patient
developing bleeding problems. However, in the case of Coumadin - the long time
go-to anticoagulant, there is an approved antidote for doctors to use that will
reverse the effects of the bleeding. The plaintiffs in the case are claiming
there is no approved drug that will reverse its effects. They claim the drug
makers did not adequately research the effects of the Xarelto or provide
sufficient warnings about the bleeding risks.
The latest motion filed in the Xarelto litigation is seeking
to bring all claims and evidence before one judge for centralized case
management known as Multi-District Litigation or MDL. The plaintiffs
filed a motion on October 15, and oral arguments are scheduled to begin on
December 4th during the next hearing in Charleston, South Carolina. These oral
arguments will be presented before the U.S. Judicial Panel on Multidistrict
Litigation (U.S. JPML) which will decide whether or not to consolidate the
cases to one district.
As of now, the makers of Xarelto, Bayer and Johnson &
Johnson, have 21 product liability lawsuits filed in 10 separate district
courts across the country. If the motion is granted, it would be a relief on
both parties because all of the litigation would occur in one place. There
would not be multiple duplicate discovery request; pre-trial motions will be
heard in front of the same judge- already familiar with the case at bar.
According to a briefing schedule from the U.S. JPML, Bayer and Johnson and
Johnson have until October 31st to respond to the motion.
If the motion to combine the lawsuits into a multi-district
litigation is ordered by the judge, the cases will continue through the
discovery and the pretrial proceeding process. If the cases do not settle out
of court prior to trial, they will be transferred back to the U.S. District
Court for trial where each case was originally filed.
The Xarelto proceedings are being handled as individual
cases rather than a class action suit. This means for each case the plaintiff
must show their injuries were directly related and caused by Xarelto. The
plaintiff in each case would receive the damages awarded by the jury without
having to share with other plaintiffs.
posted by The Cochran Firm at 9:43 AM
Tuesday, November 4, 2014
Whistleblower Stops Trinity’s Faulty Designs Injuring Motorist
Whistleblower
Stops Trinity’s Faulty Designs Injuring Motorist
By Leslie Watkins, Intern
The Cochran Firm
Josha
Harman blew the whistle on Trinity
Industries Inc. and Trinity Highway Products, LLC (collectively, Trinity) that
manufactures highway safety equipment. Harman filed
a complaint on behalf of the United States and himself to protect unknowing
citizens who drive on the Federal highways system from Trinity’s ET-Plus
guardrail end terminals.
The
ET-Plus system, known as the “head,” are often marked with yellow and black or
black and white reflectors attached to the side of w-beam guardrails facing
on-coming traffic on a public highway. In conjunction with the “head,” the
w-bean guardrails placed longitudinal on the side of highway are designed to
flatten the guardrail into a ribbon to absorb vehicle impact to minimize injury
of a motorist. However, through research and a combination of public
records, Harman was able to conclude that Trinity altered the ET-Plus system,
approved by the Federal Highway Administration (FHWA), design without the
approval or disclosure of the Federal Highway Administration, which provided
reimbursement from the government to Trinity for installing the ET-Plus
system on guardrails.
Modifications
of the “head” between 2002-2005 were reportedly dangerous upon impact through
locking up and not flattening out, creating further damage to the vehicle and
motorist. In the precedent case, on behalf of the United States against Trinity
in the U.S. District Court for the Eastern District of Texas, Harman alleged
that Trinity’s lack of disclosure and certainty of false statements about the
modifications of the ET-Plus System violated the False Claims Act. The matter
decided by the jury at trial awarded $175,000,000.00 in damages in favor of the
United States finding Trinity knowingly made or submitted false claims.
The
False Claims Act (FCA) provides whistleblowers that are private individuals
with knowledge of fraud, whether past or present, on the federal government to
bring a request or demand on behalf of the federal government to recover
damages. Harman under the FCA was able to make a demand or request to meet all
elements of the Act required to bring a claim:
First,
(1) Trinity made or, by record or
statement, caused to create a claim for payment against the government;
Secondly, (2) the claim, record, or statement was materially false or
fraudulent; and finally, (3) the false or fraudulent claim, record, or
statement made by Trinity was made knowingly.
Alterations
of the ET-Plus units not specifically disclosed to the Federal Highway
Administration were not tested in accordance to the protocol of the FHWA. Test
of the ET-Plus system in 2005 disputed whether the systems tested were of the
modifications or not, furthering Harman’s claims of the test being
misrepresented, not ensuring the safety of the systems.
With
the return of the juries’ verdict on behalf of the United States, more states
in addition to the previous mid-west states such as Texas are banning the usage
of ET-Plus systems to minimize the risk of further injuries of motorist driving
on public highways. Motorists that receive additional injuries themselves
or to a vehicle upon impact of the “head” locking up and not flattening out the
guardrail as designed, should seek an attorney to inquire about any possible
recourse for damages. Of course, safety comes first but in the event of a risk
to others or self, if there are any causes of action that may endanger public
safety that are funded by the government through private industry, as Harman
did, blow the whistle and seek proper authorities to help prevent future
incidents.
This article is based on the law as it stands on October 31, 2014, and the facts in the case of United States ex rel. Harman v. Trinity Indus., 2014 U.S. Dist. LEXIS 973,2014 WL 47258 (E.D. Tex. Jan. 3, 2014) and Jury Verdict of October 14, 2014.
posted by The Cochran Firm at 1:20 PM
Ebola: Stopping the Spread on U.S. Soil
Ebola: Stopping the Spread on U.S. Soil
The Cochran Firm
The recent return of health care workers from the Ebola
stricken countries of West Africa has sparked fear and concern over the spread
of Ebola in the U.S. With this concern have come questions of whether the
federal government’s current protocols in preventing the spread of the virus
are sufficient.
Recently, New York Governor Andrew Cuomo and New Jersey
Governor Chris Christie took matters into their own hands by imposing mandatory
21-day quarantines of healthcare workers returning from Ebola-infected
countries. These decisions were in response to Doctors Without Borders
participant Doctor Craig Spencer, a New York City resident, testing positive
for Ebola after returning from treating Ebola patients in West Africa.
Following the diagnosis, state officials scrambled to trace Dr. Spencer’s every
step to prevent the spread of the virus in New York City.
Under Governor Chris Christie’s mandatory quarantine in New
Jersey, Kaci Hickox, a nurse who also recently returned from treating Ebola
patients was quarantined in a tent at a Newark hospital for three days before
being released to her home. In response to Hickox threats to take legal action
and the negativity from the White House, Hickox was released and allowed to
continue her quarantine at home.
The Obama administration is concerned that a mandatory
quarantine could have a negative impact on the Ebola aid in West Africa by
dissuading health care workers from traveling there and ultimately increasing
the spread of the virus. The Obama administration urges that with the
international travel and movement of today, the only way to protect ourselves
from the virus is to stop it at its source.
The CDC recently announced new guidelines recommending that
people with a high risk of developing Ebola isolate themselves from others for
21 days. Additionally, those individuals would be banned from flying and would
undergo direct active monitoring by a public health worker who would check
their temperature twice daily.
Despite this, the White house has acknowledged the limits of
its power to enforce any CDC guidelines and notes that state and local officials
would ultimately make their own decisions about how to protect their citizens
as states have significant authority in governing their citizens.
In response to the surmounting negativity from the White
House, New York’s governor released details on the state’s quarantine
procedures, noting that individuals would be allowed to stay in their homes for
21 days while state and local health care workers checked on them twice daily
to monitor for Ebola symptoms. People with symptoms will be taken immediately
to the hospital. Also, those whose employer will not compensate them during
their quarantines will be paid by the state. Additionally, travelers who did
not have direct contact with Ebola patients would not be required to stay at
home but would be consulted twice daily by health officials over a three-week
period.
Under New Jersey policies, returning healthcare workers, as
well as anyone who has come in contact with Ebola patients, will be quarantined
at home. If possible, any non-residents will be transported to their homes or
quarantined in New Jersey.
Also this week, the Army Chief
of Staff General Ray Odierno issued guidelines ordering troops returning from
West Africa into a 21-day isolation separated from their families and other
troops. Currently, a team of thirty soldiers and Major General A. Williams are
quarantined in Italy where they will be monitored for 21 days at a separate
location and will have their temperatures check twice daily.
While New York and New Jersey have been the focus of the
media, other states are joining in the regulation to prevent the spread of
Ebola. Illinois implemented similar rules requiring high-risk individuals who
have had direct contact with an individual infected with Ebola to undergo a
mandatory 21-day home quarantine. Virginia will soon begin actively monitoring
travelers from West Africa while Florida is currently considering Ebola
procedures. Additionally, Connecticut recently quarantined a family of six who
had traveled to West Africa.
With looming tensions building between the states and the
White house over Ebola regulations, a new federal policy is said to take effect
next week requiring all travelers coming to the United States from Ebola
affected areas to be actively monitored for 21 days.
While the federal government may challenge the states’
decisions to impose quarantines based on the possible negative effects on
interstate commerce and travel, the states possess power under the U.S.
Constitution to implement regulation to protect the health and safety of their
citizens.
posted by The Cochran Firm at 1:14 PM
Monday, November 3, 2014
Chipotle Sued Over Unpaid Wages
Two lawsuits alleging Chipotle engages in wage theft have
been filed by employees over the past few months. These suits allege that the
popular burrito chain routinely requires employees to work “off the clock,” even
when work continues long after pay has stopped. The employees who have brought
the suits claim they have been forced to clock out at the end of their scheduled
shifts, but required to continue performing tasks such as cleaning and
stocking, sometimes for hours at a time.
Wage and hour
issues have become a hot topic as more service industry employees begin
standing up for their rights. This important fight is not simply about pay for
work performed, but about human dignity and fair treatment for all working
people.
The civil rights attorneys at The Cochran Firm strongly
support this fight and are here to help ensure employees are protected against mistreatment.
If you believe you have been mistreated by your employer or have questions about
your rights, we would be happy to meet with you free of charge to discuss your
claim and help you determine if you have cause to file suit.
To schedule your free consultation with one of our experienced
employment attorneys, please contact The Cochran
Firm today. We maintain offices throughout the United States to better
serve victims of wage theft in all areas of the country.
posted by Admin at 4:49 AM