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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



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?

Issuing gift cards for people who proactively deal with recalls could provide better incentives for customers to respond promptly to a recall repair. However, other manufacturers such as Toyota have seen enormous improvements in recall responses by providing access to 24-hour repair services.

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.

One solution would be to alter current regulations to allow for mandatory detainment of asymptomatic individuals traveling from locations infected by communicable diseases. This detainment must be limited to a time limit that symptoms typically occur within, as long as that time is reasonable. This solution balances the rights of the individual against unreasonable detainment with the legitimate state interest of protecting citizens from communicable diseases. As this issue progresses, it will be interesting to see how it is resolved and which branch of government resolves this matter.

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

By Amanda Brigman, Intern
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.

It makes sense that Bayer and Johnson and Johnson would want to combine litigation to one geographical location. Managing the numerous Xarelto cases as a Multi-District Litigation would cut down on the number of documents required and would streamline the process for all parties involved.

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

by Anna Blood, Intern
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

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