Albuquerque Personal Injury Attorney Mark Caruso in the News

Are Texas Judgments Bigger?

Albuquerque Accident Attorney

By David Roybal
For the Journal
Was it by happenstance or design that Texas was the setting for the first jury trial against the makers of painkiller Vioxx, a trial that ended earlier this month with a $253 million judgment against pharmaceutical giant Merck?
We're told the award likely will be reduced, but even then it would stand at tens of millions of dollars should the case survive on appeal.
It raises a second question: Might the huge award affect an entirely different set of drug liability cases nearing trial or under settlement negotiation in New Mexico and elsewhere?
The Vioxx award was to the widow of a 59-year-old Angleton man who had taken Vioxx for eight months and died after a heart attack.
For a while now, Texas has been among states widely considered to be generous toward plaintiffs in civil suits.
"Bunk!" replied researcher Stephen Daniels while working for the American Bar Foundation. Daniels' work was reported on by the magazine Texas Lawyer.
"Everything is thought to be bigger in Texas," the magazine reported, and people across the country have come to relate Texas with "mega verdicts." The article acknowledged that jurors in some counties, like Jefferson and Matagorda, have been quite generous. But mostly Texas jurors have been stingy, it asserted.
Daniels concluded that "swashbuckling" lawyers and others had convinced Texas lawmakers that jurors there are out of control.
Maybe so. Still, big product liability cases have a way of showing up early in Texas courts. In 2003, A Brownsville jury awarded an $18 million judgment after finding that the Ford F-150 Super Cab had a defective roof structure. A Laredo jury in 2004 awarded $9.4 million after saying Sears, Roebuck & Co. was guilty of malice in a tire service case. Earlier this year, a Zavala County jury found the 2000 Ford Explorer to be defective and awarded $31 million.
Mississippi jurors have a similar reputation for generosity.
Substantial jury awards can spur companies to settle other related suits without trial, whereas lawsuits that are rejected outright or lead to only small jury awards tend to get remaining plaintiffs to think twice about the rigors of court.
Diet drugs Fen-Phen and Redux were much in the news only a few years ago after a study by the Mayo Clinic linked the drugs to potentially fatal heart-valve damage. The drugs were recalled and thousands of lawsuits were filed across the country.
In 1998, one of the first cases went to trial in Texas, where a jury awarded the plaintiff $23.4 million.
Mississippi got another one of the early cases. That one ended in 1999 with $150 million awarded to five women.
Seeing substantial judgments going against it early, the drug manufacturer now known as Wyeth Pharmaceuticals offered $3.75 billion to settle a nationwide class action lawsuit. Many took the offer; many did not and continued pressing for their day in court.
New Mexico was to be another early battleground against the diet drug maker. But settlements and a 2003 defeat in a Santa Fe district court sent high-profile publicity elsewhere.
Lawyer Mark Caruso was among those representing Albuquerque resident Josie Garcia in that case. "We confused the jury because we sued for every cause of action under the sun," said Caruso, who remains one of the busiest New Mexico lawyers in the diet drug cases. "All we have to do under New Mexico law is compare the risks of the drug to the benefit of the drug."
Garcia is appealing her case and is among plaintiffs nationwide involved in an ongoing settlement negotiation.
Caruso since has had two diet drug cases settled in Rio Arriba County for amounts that remain sealed. The cases were settled after having already gone to trial. Caruso has three multi-plaintiff lawsuits scheduled in Santa Fe during coming months, the first to begin in November. He has two more in Tierra Amarilla and one in Grants.
Vioxx cases will keep New Mexico lawyers busy, too. Caruso said he has 15 Vioxx cases that he considers to be strong from among about 250 inquiries received by his office since concerns about the drug first became known.
"It's good to see a big win come off the block," he said of the Texas case. But he said he's not aware of any grand design by lawyers to try to use Texas for boosting chances of other cases involving Vioxx.
"The first big breast implant case in the country was based in Texas. The first Vioxx case was in Texas. ... But I think in Texas, it just depends which county you file in."
Will the Texas Vioxx award affect how lawyers approach unrelated diet drug cases?
No, says Doug Petkus, a Wyeth Pharmaceuticals spokesman. "We want to resolve cases but we will try cases when we think it's appropriate," he said.
Caruso said he had urged clients even before the Vioxx judgment not to move toward settlements hastily.

David Roybal is a longtime journalist who now owns a public relations business. His column appears Sundays in the Journal Santa Fe and Journal North and Tuesdays in the Albuquerque Journal.

There's More to the Story on Kayenta

By D'Val Westphal
Of the Journal
CATCHING UP ON KAYENTA: The recent column that had the city saying there were few wrecks at Irving and Kayenta has a few readers begging to differ.
Laura Downey e-mails that her “home backs into Kayenta, and there is a serious problem regarding speeding on this road. I have been in touch with the West Side command center, and at times there has been more police presence, however we still have a bad problem. In the article ... it was mentioned that there had only been two reported accidents. What was not mentioned was that one of those accidents was fatal and was caused because of excessive speed, which resulted in losing control of the vehicle. Shortly before the accident happened, I called the police to report this vehicle that was traveling at a high rate of speed, he had been going back and forth, using this road like a race track for over an hour, had there been a quicker response it is possible that this accident could have been avoided.
“Every day and night I hear motorcycles — what we call pocket rockets — using excessive speed 60-plus miles per hour. Many cars speed as well. It is very dangerous, there are blind curves on this road, and it is just a matter of time before we have another bad accident. I don't know what the answer is; I think that speed bumps would help and a lower speed limit.”
And Bill Kelly e-mails that “the count of accidents at a given location does not necessarily include all incidents. I learned 18 months ago that accident reports can disappear into the ether.
“My vehicle, which was parked in a parking lot, was struck by a car that came off the roadway. All the sheriff's deputies in area were there for hours. The first responding officer gave me an accident report number so that I could deal with my insurance, and the driver's, if he had any.
“To make a long story short, after much checking by both myself and my insurance adjuster, no such report was ever filed. I did finally find the officer that had given me the number, and he referred me to the clerk he thought might help me. She was able to find his initial report — in a very deep pile on a desk — but no entry into the computer was ever made. My point is, if they don't follow their own process, they don't have the information to refer back to.”
And Andrew Hewes of Rio Rancho took the time to ask his State Farm insurance agent about the cost of repairing walls after a car plows into them.
“They say uninsured motorist coverage on my vehicle would pay for house and yard structures damaged by a vehicle. I had previously assumed uninsured motorist only covered vehicles. The nice thing about uninsured motorist coverage is (a) there is no deductible and (b) it doesn't 'count against you' if people keep driving into your yard. In general, landscaping is not covered.”
CHECKING IN ON THE RIO GRANDE STOPS: The three new stop signs on Rio Grande continue to draw mixed reviews.
Diane Albert says via e-mail that “my fiance and I live on Ranchitos just east of Rio Grande. We are happy that the stop signs were installed on Rio Grande at El Pueblo and Ranchitos. We are hoping that commuters refrain from using residential streets and use Alameda, Paseo del Norte and Second Street for their daily commute. ...We enjoy the rural atmosphere in the village and do not appreciate the speeders roaring down Ranchitos at 40 to 50 mph.”
But Joe Barela of Rio Rancho isn't as pleased.
He says “I have lived here all my life and have always enjoyed Rio Grande Boulevard. I drove through this on Sunday. It really sucks with the stop signs. You can no longer take a nice, leisurely drive down Rio Grande. That was part of the appeal. They already have the speed to 1 inch/second on Rio Grande. I think the mayor is wrong in his opinion about the road being used for commuter traffic. I guess all of us from the West bank that wanted to go down to the Flying Circus, Old Town and Central and Pro Markets to spend money just won't go there anymore.” At least not via Rio Grande.
Assistant editorial page editor D'Val Westphal tackles commuter issues for the Metro area on Mondays and West Siders and Rio Ranchoans on Thursdays. Reach her at 823-3858 (phone), 823-3994 (fax), road@abqjournal.com (e-mail) or P.O. Drawer J, Albuquerque, NM 87103. Check out previous columns at abqjournal.com/traffic.

New Mexico Legislature Kills Death Penalty in State

Associated Press
The legislation, HB285, passed on a vote of 40-28, and headed to the Senate.
Twice before, in 2005 and 2007, the House approved a death penalty repeal only to have it fail in the Senate.
This year, repeal supporters are banking on a different outcome because there are new members in that chamber.
"If everyone who told us they would vote with us stays, we will pass the Senate," predicted Viki Elkey, executive director of the New Mexico Coalition to Repeal the Death Penalty.
A final hurdle would be Democratic Gov. Bill Richardson, who has been a supporter of capital punishment in the past.
Asked about it this week, he said only, "I'll take a look at it."
There are two men on death row, Robert Fry of Farmington and Timothy Allen of Bloomfield, whose executions would not be prevented by the passage of the bill.
New Mexico has executed one prisoner since 1960, child killer Terry Clark in 2001. The state uses lethal injection.
Rep. Gail Chasey, D-Albuquerque, who has sponsored similar legislation for the past decade, called repeal a "thoughtful and practical step."
"We no longer need the death penalty. Its costs far outweigh its benefits," she said.
Chasey contended capital punishment is expensive, doesn't deter violent crime and is imposed in a discriminatory manner.
And the state has come close to executing innocent people, she said. She cited a case from the 1970s in which four California bikers were on death row for the murder of a University of New Mexico student until the real killer came forward.
Supporters of repeal say the resources the state puts into capital punishment could better be spent helping murder victims' families.
State law limits the death penalty to certain murder cases, including those involving kidnapping, rape, the murder of police officers, prison guards or inmates, and murder for hire and murder of a witness.
Opponents of the bill said such victims' families deserve to keep the option of urging prosecutors to seek the death penalty.
"I don't want to take that away from the victims' families," said Rep. William Rehm, R-Albuquerque.
And opponents argued that murderers in prison for life — with nothing else left to lose — would be a danger to prison guards and to other inmates, and could escape and kill again.
Rendering such killers harmless is "a false hope," said Rep. Dennis Kintigh, a Roswell Republican.

Copyright ©2009 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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Ex-Judge's Law License Suspended

Journal Staff Writer A former judge accused of sexually harassing a woman appearing before him during a mediation has been suspended from practicing law for up to three years. The New Mexico Supreme Court on Wednesday ordered the suspension of Chris Berkheimer based on the same circumstances that led him to resign his post as a Workers Compensation Administration judge in June 2007. As cameras continued rolling after a mediation with a female claimant, Berkheimer made sexual advances on the woman. The mediation took place via videoconference in a closed conference room at the Workers Comp Administration field office in Roswell in April 2007. "After the close of the mediation with the door shut, (Berkheimer) made aggressive, inappropriate proposals of a sexual nature to (the woman), touched her inappropriately and requested that she accompany him to a bar and/or a hotel. He went with her outside the hearing room and continued to make inappropriate proposals," according to a document summarizing facts from the hearing committee. The woman's attorney, who was in Albuquerque, saw and heard the activity in the hearing room with the camera still on, according to the hearing committee's report. Berkheimer's behavior "does not meet any standard of 'decorum' in a legal proceeding," the committee report said. "(He) has expressed no remorse or responsibility for the offending behavior nor admitted any part of it." The mediation stemmed from a work-related auto accident. In Berkheimer's version of events, the woman invited him to feel the screws and hardware in her wrist. He said he accidentally hit her knee when he reached for his briefcase. "(He) did not conduct himself inappropriately at anytime whether physically or verbally," according to a document filed by Berkheimer. The state Supreme Court heard the case against Berkheimer brought by the New Mexico Disciplinary Board, which had sought his disbarment. A hearing committee chaired by former American Bar Association President Roberta Cooper Ramo had recommended Berkheimer be suspended at least two years. Joel Widman, an attorney for the disciplinary board, said the court also ordered that Berkheimer take annual sexual harassment training courses once he resumes practice. Berkheimer took inactive status with the New Mexico Bar a year ago until the disciplinary proceedings were concluded.

When Insurance Companies Aren't Fair

Now more than ever we are seeing clients come to us who have tried to settle cases on their own and been disillusioned by insulting offers and sometimes the appearance of outright trickery from the insurance company liable for their auto accident injury claim. Click here for an example of large scale deceit by major insurance companies that was recently in the news.

Fortunately Attorney Mark Caruso has over twenty years experience dealing with insurance companies in auto accident cases and is highly qualified to protect the rights of the injured. In fact Mark once worked within the insurance industry and has valuable insight on the way such companies deal with individuals seeking to pursue their claims without anyone to protect them. Mark Caruso offers a free, no obligation consultation to anyone who has been injured in an accident that was not their fault. Call today at 505-883-5000 (New Mexico and California residents only) to make an appointment to meet with Mark Caruso.

Judge Certifies Class Action Lawsuit Against Dell

A class-action lawsuit against Dell Canada Inc. has been certified by the Ontario Superior Court of Justice.
The suit was filed on behalf of Canadians who own Dell Inspiron notebook models 1100, 1150, 5100, 5150 or 5160. The class action seeks compensation from Dell arising from alleged soldering problems in the notebooks.
Lawyer Joel Rochon of the Toronto firm Rochon Genova says the class action covers some 120,000 Canadian consumers.
Rochon says his firm is overwhelmed by the number of people that have come forward.
The court denied Dell's motion to dismiss the class action and require customers with affected notebooks to deal directly with Dell.
None of the allegations raised in the suit have been proven in court.
For more information, contact Caruso Law Office at 505-883-5000.

Justice Ginsburg Treated for Pancreatic Cancer

Justice Ruth Bader Ginsburg, the only woman on the Supreme Court and a survivor of colorectal cancer a decade ago, underwent surgery for pancreatic cancer Thursday.
The news, revealed by court officials in a brief statement, raises questions about the health and future court service of the 75-year-old justice. Pancreatic cancer is one of the most lethal of all cancers, and its treatment can be particularly grueling and difficult.
Ginsburg learned of the lesion during a routine annual checkup in late January, the court statement said. A scan revealed the 1-centimeter tumor in the center of the pancreas. Surgery at the Memorial Sloan-Kettering Cancer Center in New York City was performed by Murray Brennan, a leading specialist in pancreatic cancer.
The court said Ginsburg was expected to be hospitalized for seven to 10 days. It had no comment on her follow-up treatment or how long she might be away from work. The justices are scheduled to begin a new round of oral arguments Feb. 23.
John Allendorf, an attending surgeon in the pancreas center at New York-Presbyterian Hospital/Columbia, said the relatively small size of Ginsburg's tumor suggests it was caught very early. Patients who have their tumors removed have the only chance of a cure, he said.
The court statement said Ginsburg had no symptoms before the discovery of the lesion. Pancreatic tumors grow rapidly and usually have spread throughout the body by the time their symptoms are detected, making them impossible to remove surgically, says Allendorf, who is not involved in her treatment.
Even with surgery and aggressive chemotherapy, however, pancreatic cancer usually returns. The median survival for Stage 1 disease -- as Ginsburg apparently has -- is two years, Allendorf says, and 30% of patients with Stage 1 cancer survive five years after diagnosis.
News accounts already had focused on possible retirements at the Supreme Court. Five of the nine justices are 70 or older. Ginsburg, who will be 76 on March 15, had said publicly before Thursday's announcement that she did not expect to retire anytime soon.
There was no suggestion Thursday that she would not finish the term, which typically runs until the end of June. The court is closely divided, and if she is not able to vote on cases, could deadlock 4-4 on some disputes.
White House press secretary Robert Gibbs said President Obama had not talked with Ginsburg but wished her a speedy recovery.
Ginsburg, who first gained national attention as a women's rights advocate arguing sex discrimination cases before the court, was appointed by President Clinton in 1993.
She has continued to be a robust voice for women's rights. Since the 2006 retirement of Justice Sandra Day O'Connor, Ginsburg has lamented being the only woman on the nation's highest bench.
Several sitting justices have undergone treatment for cancer over the years. Then-chief justice William Rehnquist revealed he had thyroid cancer in October 2004. Throughout chemotherapy and other treatment, he worked until the end of the 2004-05 term. He died on Sept. 3, 2005.
About 37,680 Americans were diagnosed with pancreatic cancer in 2008 and 34,290 died from it, according to the American Cancer Society.
For more information, contact Caruso Law Office at 505-883-5000.

FEMA Recalls Storm Meal Kit Peanut Butter

A U.S. agency says some emergency meal kits given to Kentucky and Arkansas storm victims may contain recalled peanut butter contaminated with salmonella.
The Federal Emergency Management Agency said kits manufactured by Red Cloud Food Services Inc. of South Elgin, Ill., under the Standing Rock label, "may contain peanut butter which is part of the precautionary national recall under way in accordance with the U.S. Food and Drug Administration."
The distributed meal kits, which include several main courses, include clear, 1-ounce packets of peanut butter, the agency said.
"People who have received commercial meal kits are asked to inspect the kits in their possession and immediately dispose of any peanut butter packets," FEMA said.
The meals were sent as part of U.S. President Barack Obama's federal disaster relief for Kentucky and Arkansas following a devastating ice storm last week.
A Red Cloud memo posted on the FEMA Web site says the prepared-foods manufacturer recalled the meals with the suspect peanut butter Jan. 19.
When asked why the agency appeared to have distributed the peanut butter two weeks after the recall, a FEMA spokeswoman said the recalled peanut butter was not included in the earlier alert, which she dated as Jan. 20.
When the alert was expanded Wednesday "to include a company that was previously cleared, we took immediate steps to cease distribution to any states or our distribution centers where there may be additional products," Ashley Small said in an e-mail.
The Red Cloud memo said that even though "not all meal kits" contained peanut butter, it was recalling all kits produced Sept. 22-25.
More than 1,000 items have been recalled in the salmonella outbreak that has sickened at least 550 people, eight of whom have died. A Peanut Corporation of America plant in Blakely, Ga., is being blamed for the contamination.
For more information, contact Caruso Law Office at 505-883-5000.