FDA Warning on Dangerous Weight Loss Supplements

According to a recent report in Consumer Reports (link below), the FDA has issued a warning regarding certain weight loss aids. The 20 different supplements are said to contain sibutramine, the active ingredient in weight-loss medication Meridia, previously found to substantially increase blood pressure and heart rate and also linked to an increased risk of heart attack and stroke. It was removed from the U.S. market in October 2010.

The targeted supplements include:

-Acai Berry Soft Gel ABC
-Advanced Slim 5
-A-Slim 100% Natural Slimming Capsule
-Botanical Slimming
-DaiDaiHuaJiaoNang (also contains phenolphthalein, a solution used in chemical experiments and a suspected cancer-causing agent not approved in the U.S.)
-Dream Body Slimming Capsule
-Fruit Plant Lossing Fat Capsule
-Health Slimming Coffee
-Ja Dera 100% Natural Weight Loss Supplement
-Leisure 18 Slimming Coffee
-Lishou
-Lose Weight Coffee
-Magic Slim Tea
-Magic Slim Weight Reduction Capsule
-P57 Hoodia
-Pai You Guo Slim Tea )also contains phenolphthalein, a solution used in chemical experiments and a suspected cancer-causing agent not approved in the U.S.)
-PhentraBurn Slimming Capsules
-Sheng Yuan Fang
-Slender Slim 11
-Tengda

The Consumer Reports account further notes that the FDA has recommended that the public steer clear of such supplements. We agree. Our lawyers have long advised against using weight-loss supplements because the risky side effects often outweigh the benefits. The supplement industry, unlike "Big Pharma," is largely unregulated and as consumers you have very little protection from public safety regulation (aside from those disclaimers that 'these claims have not been evaluated by the FDA...").

The lawyers at our office have had years of experience in dealing with injuries caused by harmful supplements. If you've experienced health problems from using one of these supplements, feel free to contact our office (951-549-9400) for a consultation, or visit our website for additional information (www.tiedtlaw.com)

(The link to the Consumer Reports post is: http://news.consumerreports.org/health/2011/10/20-weight-loss-supplements-contain-undeclared-drug-fda-warns.html)

Trial Tips-Cross-Examination

With court back logs and the emphasis in litigated matters on "alternative dispute resolution," it seems that trial lawyers just don't get into trial as often as we once did. That could explain, in part, why the "art" of cross-examination has (IMHO) suffered some in recent years. To "stay sharp", I'm always on the lookout for material that allows me to stay on top of my litigation game. In that effort, I came across some trial tips from Judge William Rylaarsdam in a recent CEB publication (link below) that addresses, fairly succinctly, some ground rules for cross-examining a witness in trial that I thought I'd share.

In Mastering the Art of Cross-Examination: Tips from a Judge Judge Rylaarsdam offers useful insights for a successful cross.

Don’t confuse cross-examination with a deposition. The purposes of each are completely distinct: the purpose of a deposition is to find out what information the witness has and nail the witness down to a particular version of the facts, and the purpose of cross-examination is to ascertain the truth of alleged facts.

Consider whether to cross-examine at all. The answer to this depends on whether the witness has testified to anything that injures your case.

Control your own demeanor during cross-examination. When counsel speaks pleasantly and frankly, shows confidence, refrains from acting surprised, and stays focused on the real issues, he or she projects credibility and adds to the credibility of his or her case.

Keep it simple. Always keep cross-examination questions short and simple. Convoluted questions will lead the jury to conclude that you are trying to confuse witnesses rather than to get to the true facts.

Keep it short. A long cross-examination may lead the jury to conclude that the witnesses’ testimony must be of particular significance.

Only ask questions that help you. Never ask a question on cross-examination unless (1) you know what the answer will be, and (2) the answer aids your side of the case.

Avoid open-ended questions. Open-ended questions give the witness too much latitude to answer. They are particularly harmful when asked of an expert witness who will then look toward the jury in a very professorial manner and explain the matter yet again to the dummy lawyer who didn’t get it the first time.

Know when to quit. Always quit while you are ahead. When a cross-examination question elicits a helpful answer, don’t elaborate by asking a further question on the same subject because the witness will likely use those further questions to try to explain away the earlier answer.

Make good use of deposition answers. Having the witnesses’ sworn answer to a question means that you can safely ask that question during cross-examination as long as it advances your position. If the answer is the same as that given during the deposition, then favorable information is before the jury, and if it differs, then you can impeach the witness with the deposition testimony.

Get the court’s help with a recalcitrant witness. Each time the witness gives an evasive answer, politely ask the court to instruct the witness to answer the question. Each time the witness’s answer goes beyond the scope of the question, ask the court to strike the offending portion of the answer and to instruct the jury to disregard it.

To these I would also add "Be Balanced." By this, I mean that in the heat of trial an attorney can get "tunnel-vision" and focus too dramatically on one area, at the expense of others. Even after nearly 25 years of trial experience, I am constantly surprised by at least one "piece" of a case that jurors find important. If you spend too much time on that "one thing" that you thought was key, you may "gloss over" others that jurors may find decisive in your case.

In the end, trial lawyers have to be themselves and "tips" like these should be used as ways to improve what you already do, not replace your style.

(These tips can be found in their original form at blog.ceb.com/2011/10/17/mastering-the-art-of-cross-examination/ )

Recoverable Medical Damages-The Howell v. Hamilton Meats Case

Well, the California Supreme Court has finally spoken on the apparent conflict between the so-called "Hanif Rule" and the long-established "Collateral Source Rule." The Court succinctly framed the issue in its opening paragraph, and provided:

When a tortiously injured person receives medical care for his or her injuries, the provider of that care often accepts as full payment, pursuant to a preexisting contract with the injured person‘s health insurer, an amount less than that stated in the provider‘s bill. In that circumstance, may the injured person recover from the tortfeasor, as economic damages for past medical expenses, the undiscounted sum stated in the provider‘s bill but never paid by or on behalf of the injured person? We hold no such recovery is allowed, for the simple reason that the injured plaintiff did not suffer any economic loss in that amount.

I'll have more on this as I digest the full measure of the 18 page decision.

Howell v. Hamilton Meats Saga

The long-awaited decision in the Howell v. Hamilton Meats case [Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686, 101 Cal.Rptr.3d 805 (Howell), Supreme Court Case Number S179115] is expected to be published on Thursday August 18, 2011. I will provide my assessment of what that decision means for the future handling of personal injury cases as soon as I can after the decision is available.

The Importance of Jury Trials

There has been a lot of talk in recent years about "tort reform" and attempts by the US Chamber of Commerce (i.e. "big business") to minimize our rights to trial by jury. With this background, I came across this Slate article on the importance of jury trials in our country. The article focuses on the recent high profile cases (one criminal and one civil) of the Casey Anthony murder trial and Janet Leigh Jones' case against Halliburton. It's a good read. (See link below...)

As noted in the article, the framers of the Constitution "understood that trial by crazed mob, by the media, or by the crown, did not produce justice. The jury system was their best guarantee of something to mitigate those powerful forces." As a trial lawyer I have come to embrace jury trials and, at the same time, to live with the "inconsistencies" that they sometimes may generate. Thomas Jefferson said the jury trial was "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

Though we each may, through our own personal political, social or moral lenses, disagree with the outcome of certain cases, our system of justice in the US, including the right to trial by jury, is the best in the world, and these rights should be protected, or they will be abridged at our peril.


http://www.slate.com/id/2299039/pagenum/all/

The "Dirty Dozen" of Legal Writing

I saw an article from the June Issue of the ABA Journal called "Dirty Dozen: 12 Ways to Write a Really Bad Brief" (see the link below), describing 12 "Donts" of legal writing, and thought I'd share. Looking at this from a more "positive" standpoint, I think that if you take anything away from these 12 "Don'ts", it is the following "Dos":

(1) Be brief;
(2) Be reasonable; and
(3) Be real.

Something that we may all, from time to time, forget is the "Golden Rule" of being an effective lawyer: Avoid the temptation to "sound like a lawyer." If you're too long-winded, too much of an advocate, and use too much legalese, you lose your audience (and in the case of legal brief, you lose the judge you're trying to convince). I also find that these 3 simple rules work well in trial when talking with jurors.

http://www.abajournal.com/magazine/article/dirty_dozen/

Thoughts on Mediation- 3 "O"s of Success

At some point in your personal injury case, you may have to consider whether to mediate the matter. Mediation can be defined as a voluntary negotiation process by which an impartial neutral assists opposing parties in resolving their dispute. It is designed to be a non-adversarial approach to conflict resolution, where the Mediator facilitates communication between the parties and assists them in finding a mutually agreeable solution. But, what tools do you need to be successful in mediation? I refer to these tools as my three "O's" of clear Objectives, Open-mindedness, and Open discussion.

Objectives. A party cannot go into mediation without clear objectives in mind and expect to reach a settlement. Whether your goal is purely monetary, or something else, that goal should be clear in your mind before you spend the time, energy and money participating in mediation. Here, preparation is the key.

The lawyer and the client should have assembled all the information necessary (i.e. medical records, expert opinions on causation) to assess the value of the case. You will also need to assess the costs of proceeding with the case to trial. Experts are often needed to testify at trial (and they are not cheap) and litigation costs will also include jury fees, court reporter fees, costs of additional depositions, etc. Often, a settlement that is reached earlier rather than later can be better result financially for the parties than a jury's verdict. (For example, from the defense side, paying a little more now, may be "cheaper" in the long run, even if you do better at trial, simply because of greater litigation expenses; conversely, for a plaintiff, taking less now may result in more money in your pocket than a greater verdict, after you factor in the additional costs involved for taking the case to a judgment.)

Also, on the plaintiff's side of the equation, if there are liens that need to be paid out of a settlement (from medical providers or medical insurers), those have to be been fully identified. Further, your lawyer should have been in contact with the adjuster or claims rep. dealing with those liens, to determine if those liens can be reduced and, if so, to what amounts. In the end, we all want to know our "bottom line" and the only way to get there is to know costs need to be covered.

Thus, having the proper sense of your objectives involves proper preparation in terms of knowing "all the angles" to obtain your objectives. Having these fully formed and informed objectives is essential to a meaningful settlement discussion.

Open-mindedness. While having a clear goal in mind in important, you also need to remain open-minded. One of the common mistakes litigants make is coming into the mediation process with a stubborn attitude or a firm "floor" or "ceiling" settlement figure in mind. Mediation, by definition, is a process that requires at least some compromise from both parties. Although most cases that go to mediation do actually settle, it is also true that to be successful at mediation you have to be flexible. If you are the plaintiff, you have to be open-minded to the possibility that you may have to take less than you were initially willing to, or from the defense side, you may have to be open to the possibility of giving up more than you initially wanted. (My more pessimistic colleagues describe a successful mediation as one where both sides walk out grumbling just a little bit.)

Open Discussion. As noted above, proper preparation is key to a successful mediation, and that means having a clear understanding of not only the strengths of your case, but also your weaknesses. To successfully mediate your case, you have to be honest with yourself and with the mediator. Dealing directly with the perceived "weaknesses" in your case when discussing it with the mediator will give you greater credibility with that mediator when he tries to argue the strong points of your case to the other side. This also better equips you to understand the "down-side" to proceeding with the case to trial.

Now, as a lawyer that specializes in litigation (and particularly in my "younger days"), my initial reaction in dealing with opposing counsel was to "play it close to the vest" and not disclose much more than what was absolutely required. However, if you truly desire to reach a settlement, you have to be able to provide enough information to the other side and to the mediator to convince them that you are likely to succeed at trial.

Further, and perhaps more importantly, in the mediation context there are certain confidentiality rules that make such honest and open discussions more palatable. Under Evidence Code § 1119, "all communications, negotiations, or settlement discussions by and between participants in the course of a mediation ... shall remain confidential." Further, in Cassel v. Superior Court (2011) 51 Cal.4th 113, 119 Cal.Rptr.3d 437, the California Supreme Court recently extended mediation confidentiality to preclude the subsequent use of any evidence of "mediation-related" communications and that protection included even include pre-mediation conversations between a lawyer and client. [Cassel, supra, 51 Cal.4th 113, 118, 119 Cal.Rptr.3d 437, 440] Thus, it is far less likely that parties to mediation will be "burned" by disclosures in mediation, since "evidence" discussed in the process cannot be used against them later, should they not actually resolve the matter.

In addition, the concept of being "open-minded" also includes the idea that you have to be able to see the other side's arguments, whether it be on liability, or damages, or a realistic assessment of "what a jury might do" with your case. Thus, being "open-minded" also means that you cannot "take it personally" if some aspect of your case is questioned by the mediator. In the end, the mediator is not your "adversary" and may only just be trying to suggest alternative outcomes to your case that you should be fully aware of when you decide on whether an offer or demand is reasonable.

Conclusion. Not every mediation will be successful, but the odds of reaching a mutually agreeable settlement increase if both sides keep in mind these three principles. If you walk into mediation with these concepts of the "3 O's" in mind, you are much more likely to find yourself walking out of mediation with a settlement agreement in hand.