Author Archive

What Does Mitigating Damages Mean?

November 29th, 2010. By Kristine B

“Mitigation of Damages”.

It’s a phrase used every so often in relation to lawsuits—or catastrophes: mitigating damages. But, many people don’t understand what mitigation of damages means. This week, Pleading Ignorance explains mitigation of damages and what it means to potential plaintiffs and, possibly, you.

Mitigation of damages means that a person should use reasonable care and diligence to avoid or minimize injury. That means that a victim (or plaintiff) should have done everything reasonably possible to avoid harm, or to at least minimize it. It does not mean that a plaintiff is required to move heaven and earth to avoid injury or harm, but it does mean that he or she must have done whatever is reasonable to avoid injury.

So, let’s take the example of a person injured in a car accident. If the person injured in the car accident does not obtain (or accept) necessary medical help following the accident, then any harm done as a result of not seeking medical help can be viewed as the victim’s fault—and perhaps not the fault of the other driver. It’s sort of like the “you can take a horse to water, but you can’t make him drink” adage. If you (as a hypothetical plaintiff in a car accident case) either refuse medical help or do not seek it out when you clearly should have, then you may be held responsible for it. If the horse doesn’t drink and gets dehydrated (or worse), who’s to blame? The horse.

So what might this mean for the plaintiff? Damages awarded to the plaintiff might be reduced if Read the rest of this entry »

Tags: Mitigating Damages, Pleading Ignorance
Posted in Pleading Ignorance | 5 Comments »

Whistleblower Lawsuit Pays Off Big For Former GSK Employee

November 22nd, 2010. By Kristine B

Talk about your big payouts. A woman who acted as a whistleblower against GlaxoSmithKline will receive a whopping $96 million for her role in bringing the company to justice. Who knows, maybe eventually an Erin Brockovich-style movie will be made about her, too. This week, Pleading Ignorance looks into the story behind the whistleblower who helped officials in their case against GlaxoSmithKline—and what qui tam is all about.                                                 

The woman who acted as whistleblower in this case was Cheryl Eckard, who worked at GlaxoSmithKline from 1992 through 2003. When she was asked to visit the now-closed plant at Cidra, Puerto Rico, following citations for violations at the plant, Eckard was a manager of global quality assurance for GlaxoSmithKline. 

According to The Wall Street Journal (10/28/10), Eckard found massive problems at the Cidra plant, leading her to make recommendations to her superiors about how to fix things up. Those recommendations included to stop shipping all products from the plant and to notify the FDA about product problems, such as problems where drugs of different types were mixed up in the same bottle. 

But, according to the lawsuit, Eckard’s superiors ignored her, leading to her eventually telling them she would not be part of a cover-up. In 2003, Eckard was reportedly fired. Despite the firing, she says she continued to try to convince GlaxoSmithKline to make changes to the Cidra plant. It’s a screenplay waiting to happen: Woman sent to investigate plant, woman makes recommendations, woman is fired after following up on recommendations, woman is repeatedly ignored, woman files lawsuit against large corporation… 

Eventually, Eckard called the FDA, which led to the FDA investigation. Meanwhile, Eckard filed a lawsuit against GlaxoSmithKline under the US False Claims Act. Then, in 2010, GlaxoSmithKline agreed to pay $750 million to settle charges of allowing adulterated drugs onto the market. Of that, Eckard will receive $96 million, reportedly the largest award given to a single whistleblower in US history. 

A provision of the False Claims Act, also known as the Qui Tam Statute, allows private citizens to sue a person or company that knowingly submits false bills to the federal government. Although the qui tam lawsuit is filed by a private citizen, it is done on behalf of the federal government. Furthermore, it protects plaintiffs who are demoted, suspended or discriminated against because they have filed a claim under the False Claims Act. If a qui tam suit is successful, as was the case here, the whistleblower is entitled to between 15 and 30 percent of the money the government recovers. The whistleblower is also eligible for between $5,000 and $10,000 per false claim. 

A lawsuit filed under the False Claims Act is first served on the government and is not served on the defendant until the court orders it be served. The whistleblower is not allowed to discuss the lawsuit while the government investigates the allegations detailed in the complaint. 

The sad thing is that if GlaxoSmithKline had done the right thing from the start and listened to Eckard’s concerns, the lawsuit could have been avoided. Unfortunately, many companies see little or no benefit in doing the right thing, until doing the wrong thing costs them a lot of money. 

Pleading Ignorance cheers Ms. Eckard, who continued to fight to ensure the right thing was done, even when it meant she lost her job. Sometimes, good things happen to people who fight for them.

Tags: GlaxoSmithKline, GSK, Qui Tam Lawsuit, Whistleblower
Posted in Emerging Issues, Pleading Ignorance, Whistleblower | 2 Comments »

It’s Unacceptable: Vets Face a Battle on the Homefront, too

November 11th, 2010. By Kristine B

With Veterans’ Day upon us, Pleading Ignorance takes a break from explaining legalese and takes the opportunity to thank veterans for all they have done—and all they have sacrificed. And we look at some of the battles veterans face when they return home, and ask why we can’t do more for the people who have sacrificed so much?

Each year on Veterans’ Day, we take the time to pay tribute to those who have sacrificed so much—in some cases, their lives—in the service of their country. We take a moment to remember those who died and give our respect to veterans who so bravely fought, and continue to fight, so that many of us don’t have to.

I’d like to think that Veterans’ Day still means something, but some of the thank you’s might seem a bit hollow, considering the treatment that veterans return home to. After facing horrors that many of us can’t even conceive of, they come home to long and often complex claims processes, face having their very real claims of post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI) declined or questioned, and receive sometimes questionable medical treatment at the hands of Veterans Affairs medical centers and hospitals. They face medical malpractice and unreasonably denied disability claims.

It’s unacceptable.

Back in 2007, veterans spoke before Congress about horrific conditions at Walter Reed Army Medical Center. Those conditions included one sergeant being released to outpatient treatment within a week of being shot in the head, despite having a TBI and having lost an eye. The same sergeant faced delayed treatment because of lost documents and ultimately had to take his medical care into his own hands because no one from continuing care would contact him.

At the time, acting secretary of the Army, Pete Geren, stated, “We have let some soldiers down,” (as quoted in The New York Times (3/6/2007).

It’s unacceptable.

These are people who have given up so much for their country—they deserve more than to be “let down”. They deserve the best possible medical care, not weeks and months of waiting for Read the rest of this entry »

Tags: VA Disability, Veterans, Veterans Day, Vets
Posted in Pleading Ignorance, Veterans | 5 Comments »

But was it Sexual Harassment? Pleading Ignorance takes a look…

October 29th, 2010. By Kristine B

If you’ve read the news lately, you more than likely read that Clarence Thomas and Anita Hill are back at it again. If you’re like me, you may have wondered if we hadn’t somehow gone into some time warp, circa 1991. Well, as one could predict, it was the old “he did it,” “she lied” debate. That debate won’t be tackled—or resolved—here at Pleading Ignorance—heck, I hardly have access to the pertinent information—but what we can discuss is what sexual harassment actually is—and is not.

“Hey babe, nice skirt…”

So is a remark like that sexual harassment—or not? Let’s see… 

Sexual harassment involves unwelcome sexual advances, requests for sexual favors and other conduct (either physical or verbal) that is of a sexual nature. These activities become sexual harassment when the recipient’s submission to or rejection of the conduct affects his or her employment, interferes with work performance or creates an intimidating or hostile work environment. 

The person being harassed does not necessarily have to fear the loss of a job for the situation to be deemed sexual harassment. Sexual harassment can involve promises of promotions or more favorable working conditions or, if the conduct is rejected, demotions or hostile work conditions. 

Sexual harassment does not have to involve parties of the opposite sex. Furthermore, although the harasser can be the employee’s supervisor, the harassment can also involve Read the rest of this entry »

Tags: Pleading Ignorance, Sexual Harassment
Posted in Emerging Issues, Employment | 2 Comments »

Do you have a Veteran PTSD Claim? You may now…

October 27th, 2010. By Kristine B

On July 13, 2010, Veterans Affairs put in a new rule regarding Post Traumatic Stress Disorder (PTSD). This change to the rule could mean that you are now eligible to file a VA PTSD claim where before your claim was denied. Ben Stewart, attorney at Stewart Law P.L.L.C. explains the changes in this week’s Pleading Ignorance. 

“The new rule is a relaxation of the evidentiary standard for establishing in-service stressors for claims involving PTSD,” Stewart says. 

Basically, the new rules make it easier for veterans to prove they have a disability (specifically, PTSD) that was caused by stressors related to their service. So, veterans who were previously denied PTSD claims may now be eligible to file claims. 

How does the new rule make the claim easier for veterans? Prior to the rule change, veterans had to prove that they experienced a stressor that was related to hostile military activity. Now, they only have to show that their PTSD is linked to a “fear of hostile military or terrorist activity and is consistent with the places, types and circumstances of the veteran’s service,” (from a VA news release; 07/12/10). 

According to the American Forces Press Service, approximately 400,000 veterans currently receive compensation benefits linked to PTSD. Of those, approximately 70,000 were veterans of operations Iraqi Freedom and Enduring Freedom. 

For right now, however, the claims are not being applied retroactively. This means that you won’t receive benefits from the time your first claim was filed and denied. Rather, you have to file a second claim and the benefits will be applied from the date of the second application. That said, Stewart says he anticipates an appeal will be filed to determine whether the VA should be responsible for retroactive benefits in the case of PTSD. 

Stewart also alleges that the VA has used personality disorders to attempt to avoid paying claims of PTSD. They can do so because personality disorder isn’t considered service-related. 

“Personality disorders have been used by the VA to show that service people were not injured Read the rest of this entry »

Tags: Ben Stewart, VA Claims, Veterans, Veterans PTSD
Posted in Pleading Ignorance, Veterans | 10 Comments »