Archive for November, 2015

What Victims Should Know about Post-Accident Drug Testing of Truck Drivers

Monday, November 30th, 2015

While a drug impaired driver barreling down Interstate 55 at 70 mph is an inherently frightening prospect, the potential danger to other motorists increases significantly when the drugged driver is operating a forty-ton fully loaded big-rig.  The Federal Motor Carrier Safety Administration (FMCSA) imposes regulations that require employers to conduct a drug test of drivers involved in trucking accidents as soon as practicable after a crash on a public roadway engaged in interstate commerce (i.e. operating across state lines) though not under all circumstances.  Experienced trucking accident attorneys recognize the importance these regulations.  Critical evidence of negligence can be preserved for victims of stoned truck drivers and indifferent commercial carriers that cut costs by skirting drug testing procedures and ignoring evidence of drug testing violations.  This blog post provides an overview of key information that vehicle occupants injured in a trucking collision should know about post-crash trucking procedures.

Will all truck drivers automatically be tested pursuant to federal regulations following an accident?

Unfortunately, the requirement that commercial drivers submit to a drug test following a crash is not a universal requirement.  Federal regulations set forth at 49 CFR 382.303 establish the conditions that make testing mandatory.  An employer must compel a post-accident drug test in the following situations:

  • The trucking accident resulted in a fatality.
  • The commercial driver received a citation for a moving violation under state or local law within 32 hours of the crash and either of the following apply: (1) a vehicle was disabled and had to be towed from the scene of the collision; or (2) someone needed to be transported away from the scene for medical attention.

The obvious gaps in this testing policy involve situations where a trucking collision causes injury or disables a vehicle but no citation is issued by law enforcement authorities to the truck driver.  The scenarios above are the only post-accident circumstances that mandate or authorize post-crash testing under FMSCA/DOT authority.  Therefore, our Mississippi trucking accident lawyers also investigate the internal drug testing policies of the commercial carrier, which often go beyond the federal requirements.  Drug use violations detected through these supplemental testing procedures or failure of a trucking company to comply with its own procedures also can provide evidence of negligence.

Can law enforcement drug or alcohol testing serve as a substitute for mandatory post-collision drug testing?

When law enforcement authorities administer DUI chemical testing of breath, blood, or urine under state law, this drug testing can take the place of employer testing under specific circumstances.  Because there can be delays that result in delays in testing by employers, individuals injured in trucking accidents can benefit from calling certain facts to the attention of law enforcement investigators.  Motorists who notice signs of potential intoxication, such as slurred speech, lack of coordination, erratic driving, watery bloodshot eyes, or other evidence of impairment should alert crash investigators.  This information can furnish facts justifying a chemical test that identifies a substance impaired truck driver.  If law enforcement administers a DUI chemical test test, the results must be made available to the attorneys of the parties and the commercial carrier in subsequent trucking litigation.

What procedural requirements ensure that drug testing results will be an accurate reflection of violations of drug or alcohol use rules for commercial drivers?

When testing is necessitated under FMSCA regulations following a collision, the testing must be conducted by a lab authorized by the Department of Health and Human Services.  An injury victim’s attorney has a right to obtain the results if the outcome of the test is positive.  However, the accuracy of FMSCA drug screening is compromised to some extent because only urine testing can be mandated.  Illicit narcotics and prescription drugs can be detected for a much longer period through hair follicle testing, which has prompted legislative proposals to authorize the use of hair follicle testing.

What penalties must be imposed if a truck driver fails a post-crash drug test?

A number of penalties will be imposed on a commercial driver who does not pass a drug test after a collision, which include the following:

  • Evaluation by a substance abuse professional
  • Removal from safety-sensitive functions
  • Minimum of six periodic drug test during the subsequent year following a return to duty
  • Successful passage of a test

Our Mississippi Trucking Accident Attorneys at Barrett Law recognize the hardships that face individuals injured in semi-truck crashes, and we are here to help.  Contact our firm today at 800.707.9577 to schedule your free consultation, so we can evaluate your situation and discuss your right to financial compensation.

Mississippi Motorcycle Accident Lawyers Discuss Threat Posed by Distracted Drivers

Monday, November 30th, 2015

Although drivers who multi-task while driving present as significant a threat of causing collisions as intoxicated drivers, many motorists who condemn the practice of driving drunk fiddle with their vehicle’s “infotainment” center or text on a cell phone.  One study that reflects the disconnect between attitudes and actions involving distracted driving found that 36 percent of respondents considered texting or talking on a cell phone to pose the greatest roadway safety risk.  Nonetheless, almost half of those drivers (45 percent) admitted to having made a serious driving mistake while talking on their phone.  Inattentive drivers who divert their concentration, eyes, and hands from exclusively focusing on the safe operation of their vehicle are responsible for a growing number of crashes, permanent disabling injuries, and wrongful deaths.  While distracted driving is dangerous to occupants of all types of vehicles, motorcyclists are particularly vulnerable to injury from this unsafe practice.

 

The national scope of the distracted driving epidemic can hardly be overstated given the overwhelming popularity of portable electronic devices and their frequent use by motorists.  The study referenced above found that 7 in 10 drivers reported having been hit or nearly hit by a motorist who was talking on a cell phone.  These reports indicating the scope of the distracted driving problem are supported by actual injury-accident data.  The Centers for Disease Control and Prevention (CDC) indicates that approximately nine people die and another 1,153 people are injured in distracted driving crashes daily throughout the U.S.  The National Highway Traffic Safety Administration (NHTSA) reports that nearly one in five crashes on a national basis is caused by a driver who is dividing his or her attention while driving.

 

While multi-tasking drivers present a danger to occupants of all types of vehicles, the risk to motorcyclists is greater than individuals traveling in passenger cars.  Motorcyclists face a much greater risk of being involved in a collision because bikes are less visible given their relatively small size.  The more diminutive size of a bike permits riders to travel in areas of the roadway that a passenger car driver might not expect a vehicle to fit, which also contributes to the tendency of drivers not to notice a motorcyclist.  When a driver is looking down to read a text message or rubbernecking at an accident on the shoulder of the roadway, this tendency not to observe the presence of a motorcycle significantly increases.

Distracted motorists also magnifies the vulnerability of riding enthusiasts related to the natural limitations of a bike.  When motorists reach over to mop up a spilled beverage, the tendency to drift into an adjacent lane occupied by a bike can force a motorcyclist’s response that cannot be completed safely because of the lack of stability associated with operating a two-wheeled vehicle.  Since motorcycles lack the protection from injury associated with passenger cars, such as a reinforced passenger compartment, safety restraints, and air bags, the severity of injury caused by drivers who are inattentive also tend to be more serious than those suffered by occupants of cars, trucks, and SUVs.

Although distracted driving often constitutes a basis for determining a driver is negligent, most drivers who cause accidents while diverting their attention from the road do not admit to their unsafe driving practice.  Our Mississippi Motorcycle Accident Lawyers routinely subpoena phone records to investigate possible phone texting and talking activity immediately prior to and during a collision. Contact our firm today at 800.707.9577 to schedule your free consultation, so we can evaluate your situation and discuss your right to financial compensation.

Calculating Financial Recovery for a Qui Tam Action under the False Claims Act

Sunday, November 29th, 2015

False Claims Act lawsuits have led to the recovery of in excess of $44 billion dollars spanning a period of 1986-2014.  Whistleblowers who have commenced lawsuits have accounted for $30 billion of the amount recovered.  Further, the successful prosecution of these qui tam claims has generated more than $4.7 billion in payments to whistleblowers who have assisted the government in recovering public funds for taxpayers.  There were over 713 False Claims Act lawsuits commenced by whistleblowers in 2014 alone.  Many people weighing whether to come forward to expose fraud that results in the depletion of tax revenue are unsure how awards under the False Claims Act are calculated and paid.

While the recovery typically will be comprised of multiple types of compensation, such as a share of the money recovered or disgorged and penalties as well as reasonable attorney fees and costs.  The amount the whistleblower (referred to as the “Relator” under the False Claims Act) is entitled to be paid falls between 15 and 30 percent of the “proceeds” obtained in the qui tam lawsuit settlement or judgment.  The proceeds include the money or benefits recovered, which includes treble damages, along with penalties amounts assessed.  Where the recovery falls along the 15-30 percent continuum will depend on whether the government intervenes and the extent of the Relator’s involvement in prosecuting the case and providing information.

Evaluating the Appropriate Percentage of the Proceeds

Relators will typically obtain a far more substantial recovery if they have legal representation because evidence must be presented to justify the Relator’s percentage of the proceeds.  The minimum 15 percent sum is intended for cases where a “finder’s fee” is appropriate according to a report produced by the Senate Judiciary Committee.  Although the government frequently will argue for this minimum threshold recovery, this percentage is only intended when the Relator commences the case that leads to a recovery and takes no other role or provides no other information or evidence used to obtain the judgment or settlement.  When the involvement of the whistleblower involves providing supporting documents, testimony, and other facts and/or continuing to actively participate in the qui tam action, the recovery should be significantly higher up to a maximum of 30 percent.

Proving Right to Higher Percentage Based on Senate Factors

The experience of your False Claims Act attorney can significantly impact this percentage.  Courts frequently utilize two different systems for calculating the percentage of the proceeds to be awarded: (1) Senate report factors and/or (2) Guidelines from the U.S. Department of Justice (DOJ).  However, the DOJ guidelines do not carry the force of law, so these should only be argued to the extent they support the Relator’s claim to a more significant percentage of the proceeds.  The Senate report identifies three factors to be evaluated: (1) contribution by the Relator to the outcome of the case; (2) the “significance” (e.g. importance, relevance, and scope) of the information provided by the Relator; and (3) prior knowledge of the fraudulent activity by the government.  When filing a motion seeking the Relator’s share of the proceeds, persuasive advocacy that provides facts and evidence in these three areas is essential.

Guidelines from the U.S. Department of Justice

The DOT has its own guidelines that list potential considerations that support either increasing or reducing the amount of recovery.  The list of factors is lengthy, but examples include:

  • No knowledge of the fraud by the government
  • Extensive detail and information furnished by the Relator
  • Warning provided regarding a significant public safety concern
  • Prompt reporting of the illegal practices
  • Significant assistance during the pre-trial and investigation stages of the lawsuit
  • Discontinuation of the fraudulent activity after bringing claim
  • Relative size of the financial recovery

Our Mississippi False Claim Act Lawyers assist our clients in gathering and presenting information relevant to the approximately two dozen factors that might favor our client receiving more funds.  At Barrett Law, our Mississippi Qui Tam Lawyers work to protect individuals who expose corrupt and unlawful practices while seeking the fullest compensation for whistleblowers.  Contact our firm today at 800.707.9577 to schedule your free consultation, so we can answer any questions you may have regarding filing car accident case.

 

 

 

 

 

 

 

Court Recognizes Public Policy Exception to Confidentiality Agreements in False Claims Act Lawsuit

Friday, November 20th, 2015

Whistleblowers who disclose fraudulent practices, false billings, and inflated charges submitted to Medicare provide a valuable benefit to taxpayers.  Attempts by health care providers to engage in fraudulent Medicare billings often are exposed through qui tam actions brought by former employees of the offending medical care provider.  Although employees that disclosed financial malfeasance through the False Claims Act facilitated the recovery of a staggering $5.7 billion in 2014, health care providers frequently attempt to silence whistleblowers by threatening civil liability based on violation of confidentiality agreements.  A recent decision by a federal district court in New York offers protection to whistleblowers in this situation by carving out a public policy exception to confidentiality agreements.

In U.S. et al. ex rel. Ortiz et al. v. Mount Sinai Hospital et al., the relators (whistleblowers) alleged that Mount Sinai Hospital and several other affiliated entities engaged in improper billing and wrongful payment retention practices.  The health care providers filed a motion to dismiss the False Claims Act action based on the relator’s use of confidential patient records in violation of confidentiality agreements between the parties.  This defense strategy is significant because the success of qui tam actions often turn on confidential information that would not be readily available to anyone other than an employee or manager subject to nondisclosure or confidentiality agreements.

The court in evaluating the use of confidential information emphasized the important public policy of protecting whistleblowers who disclose fraud committed against the government.  The court rejected the contention that a nondisclosure or confidentiality agreement could trump the False Claims Act’s strong public policy of encouraging whistleblowers to report financial malfeasance that fraudulently dissipates public health care dollars.  The court also noted the relator’s allegation that HIPPA carves out a special exception that permits whistleblowers to provide information to government entities and private attorneys based on a good faith belief regarding unlawful acts.

Decisions like this one are important because health care providers that defraud Medical often attempt to hide behind confidentiality agreements to avoid liability under the False Claims Act.  The impact of allowing this tactic to deter employees from blowing the whistle can hardly be overstated given that Medicare fraud is estimated to cheat taxpayers out of between $60 and $90 billion annually.

Despite the protections potentially offered by this ruling, whistleblowers are advised to seek legal advice before gathering or using confidential information to expose fraudulent medical billings against the government.  The law regarding the use of information subject to a non-disclosure or confidentiality agreement can evolve and varies depending on the jurisdiction.  Sound legal counsel can help relators avoid illegal evidence gathering practices.  Our Mississippi qui tam lawyers also can offer advice on steps that can be taken to prevent the disclosure of confidential information, such as use of a redacted complaint that omits the names of patients.  Because our law firm has a long history of representing whistleblowers, we recognize the importance of taking appropriate steps to protect our clients from the potentially adverse consequences of disclosing fraud by their employers.

Our Mississippi False Claims Act Attorneys can guide courageous whistleblowers through the qui tam process.  Contact our firm today at 800.707.9577 to schedule your free consultation, so we can discuss your legal rights.

Severity of Drowsy Driving Problem Might Rival Drunk Driving Epidemic

Friday, November 20th, 2015

While most motorists are well aware of the inherent risk posed by intoxicated and distracted drivers, drowsy driving receives much less attention.  Despite the devastating impact of severe fatigue and drowsiness on the physical and mental skills needed to safely operate a motor vehicle, the issue of drowsy driving has been largely ignored by lawmakers.  The expansive use of prescription and over-the-counter drugs that promote drowsiness threatens to make the problem even worse.

Drowsy driving accounts for a significant number of serious crashes that cause debilitating injuries, such as traumatic brain injuries (TBIs), spinal cord injuries, broken bones/fractures, internal organ damage, and even fatalities.  According to data from the National Highway Traffic Safety Administration (NHTSA), approximately 100,000 crashes occur every year that involve sleep deprivation as a factor.  The National Sleep Foundation reports that sleep-deprived drivers account for approximately 1,550 fatalities and 71,000 injuries annually.  The organization also reports the economic cost associated with these crashes exceeds $12.5 billion annually.

While this number is significant, the number of drowsy driving accidents might be significantly understated based on a number of factors:

  • Multiple Causal Factors: Sleep deprivation is often ignored as a secondary factor that plays a role in causing crashes.  Many drivers who have been using drugs or alcohol, for example, fall asleep behind the wheel, but substance impairment rather than fatigue is documented as the cause of the collision.
  • Inaccurate State Reporting Systems: While states have adopted fairly standardized techniques for reporting the causes of accidents, these systems are not effective for drowsy driving.  States tend to have different reporting systems for this type of unsafe driving practice with some states not even documenting sleep deprivation as a potential cause of an accident.
  • Lack of Objective Testing: When drivers are operating motor vehicles under the influence of intoxicants like drugs or alcohol, there are objective tests that can be applied, such as a chemical test of blood, breath or urine.  There is no comparable test to determine if a driver was falling asleep behind the wheel.
  • Inherent Self-Reporting Issues: Drivers cannot be expected to accurately self-report drowsiness as a factor in causing an injury accident or fatal collision because of concerns about civil and criminal liability.

Along with these factors that complicate attempts to get an accurate fix on the scope of the drowsy driving epidemic in the U.S., evidence from other countries with better reporting systems suggest the problem could be as significant as drunk driving.  A study that evaluated crash data involving collisions in a number of European counties found that drowsy driving could be a factor in as many as thirty percent of all collisions.  While this estimate might seem alarmingly high, a study conducted by the organization Sleep in America found that 27 percent of participants admitted to commuting to work when drowsy at least a few times per month.

If you have been injured by a drowsy driver, you might have the legal right to financial compensation for injuries caused by this unsafe driving practice.  At Barrett Law, our seasoned Mississippi Personal Injury Attorneys understand car accident victims often feel overwhelmed, and we are here to help.  Contact our firm today at 800.707.9577 to schedule your free consultation, so we can answer any questions you may have regarding pursuing a car accident claim.

Broker Can Be Liable for Trucking Accidents Caused by Negligent Hiring of Motor Carriers

Monday, November 16th, 2015

Commercial truck drivers who have not been properly screened pose a significant danger to the safety of Mississippi motorists.  Tractor-trailers transporting a maximum load dwarf the average economy car by 75,000 pounds or more.  Given the devastating consequences of negligent operation of these large motor vehicles, commercial carriers have a duty to exercise prudence and care when evaluating potential drivers who will be entrusted with the task of navigating our roadways.  The size of these trucks means that collisions tend to result in more severe injuries than a collision between two passenger cars.  However, safe operation of a big-rig also requires special skill because of challenges posed by their size, weight, required braking distance, blind spots, and similar features.  In recent years, the issue of negligent hiring has become a more pervasive basis for liability involving brokers who facilitate arrangements between commercial carriers and shippers.

Generally speaking, a broker in this context involves an entity or individual that accepts a fee to coordinate a shipping arrangement between a motor carrier and a shipper transporting property.  Brokers function as the middleman who facilitates the relationship between the parties to the shipping relationship (i.e., the shipper and commercial carrier/driver).  The drivers typically are signed on as independent contractors, so the broker has no direct involvement in the transportation of the goods.  This scheme often is used by brokers to avoid liability claims for the negligent practices of truck drivers who are involved in accidents.

While this approach has been used in the past to circumvent liability, brokers can be held responsible for negligence in hiring a carrier.  Brokers have a legal duty to exercise reasonable care when retaining a carrier, which involves examining the trucking company’s claim history, safety records, and insurance status.  Despite this duty, many brokers place the maximization of profits above ensuring that the trucks transporting goods on our roads are driven by competent drivers and properly maintained fleets.  The selection of a driver often is based on which carrier provides the lowest bid with much less attention paid to records regarding the performance and safety of the carrier.  This focus on cost is important because carriers with drivers that are the least experienced and that have the worst records in terms of accidents and safety violations tend to be the least expensive.  Further, carriers who have poor maintenance records also tend to submit lower bids because of the competitive advantage that comes from spending less on compliance cost and fleet maintenance.

When individuals are injured in a jackknife crash, rollover, runaway trailer, carriage underride, or other trucking accident, the broker will not usually be determined to be directly negligent since someone else was operating the tractor-trailer.  However, the broker can still be liable for negligence by the commercial carrier and its driver for exercising a lack of care in hiring the carrier to undertake the job.  At a minimum, the broker must review the carrier’s safety statistics, evaluations and internal records regarding the trucking company’s safety performance.

The use of independent contractor arrangements are just one strategy used by the trucking industry to mitigate liability for catastrophic injuries and wrongful deaths caused by commercial drivers and carriers.  An experienced trucking accident lawyer can help you navigate your way through these tactics.  At Barrett Law, our Mississippi Trucking Accident Attorneys understand car accident victims often feel overwhelmed, and we are here to help.  Contact our firm today at 800.707.9577 to schedule your free consultation, so we can answer any questions you may have regarding your right to financial compensation.

 

 

Mississippi Car Accident Lawyers Discuss Special Risks Associated with Left Turn Accidents

Sunday, November 15th, 2015

While the risk of collisions involving motor vehicles is always present when vehicles cross paths at intersections, left turns present a special risk for pedestrians, motorcyclists, bicyclists, and vehicle occupants.  Based on data from the federal government, approximately 53 percent of all crashes involving vehicles crossing paths involve a left turn while less than six percent involve right turns.  This increased risk of an accident applies to all types of vehicles and even pedestrians.  Left-hand turns were determined to present triple the risk of a fatal pedestrian accident compared to a right turn according to a study conducted by New York City transportation researchers.  Further, the National Highway Transportation Safety Administration (NHTSA) reports that more than one in three fatal motorcycle crashes involve a motorist turning left in front of the rider.  Some traffic safety experts have even advocated that government traffic authorities prioritize safety over convenience by restricting or limiting the use of left turns.

Left hand turns contribute to accidents both by increasing traffic congestion and promoting prolonged stops in front of approaching traffic.  The obvious danger of having a vehicle waiting for cross-traffic to allow a left turn can be completed obviously creates an extended period of exposure for intersecting vehicles.  Since left turns often require delays while waiting for a special green arrow or cross-traffic to clear, congestion created by these delays also tends to promote accidents.

While it might be unrealistic to believe that left turns will be banned or severely restricted, the benefits of such a strategy have led at least one major shipper to adopt such a practice.  UPS has adopted driving practices that entail drivers turn right 90 percent of the time.  Given that UPS is one of the largest shipping and logistics companies in the U.S., it is particularly interesting that the practice has not only proven to make the roads safer but also resulted in improved fuel efficiency.   According to the company, their policy of minimizing left turns has saved millions of gallons in fuel based on a report published in The Washington Post.

Although the issue of liability must be evaluated based on the unique facts and circumstances of each accident, drivers involved in crashes while executing a left turn frequently will be considered at-fault for collisions.  Traffic laws in Mississippi and most states require that a motorist wait until a left turn can be completed safely before entering into an area where there is oncoming traffic.  Since traffic safety laws typically require that a motorist making a left turn yield to vehicles that are oncoming or approaching, the fault of the driver turning left will be almost automatic in most cases.  However, there are exceptions to this general principle, such as a driver that runs a red light or a motorist that exceeds the speed limit when entering an intersection.  Proof of fault also might be more complicated if it was safe to complete the left turn when the maneuver was initiated, but an unanticipated event caused the turning vehicle to stop or slow after commencing the turn.

If you or someone you love has been injured in a car accident caused by a driver executing an unsafe left turn, our law firm can evaluate your situation and determine your right to financial compensation.  At Barrett Law, our seasoned Mississippi Car Accident Lawyers understand car accident victims often feel overwhelmed, and we are here to help.  Contact our firm today at 800.707.9577 to schedule your free consultation, so we can answer any questions you may have regarding filing car accident case.

Five Important Facts Mississippi Whistleblowers Should Know

Thursday, November 5th, 2015

Our Mississippi Qui Tam Lawyers have represented whistleblowers in different types of claims involving attempts to defraud the government through a wide range of practices.  Because the qui tam process usually involves many factual and legal issues that present potential obstacles to a successful recovery, whistleblowers need to be aware of certain information to avoid missteps that can derail their whistleblower lawsuit.  This blog outlines five key facts claimants should know about protecting their rights and navigating qui tam claims.

Documentary Evidence Supporting Claims Is Key.

While government prosecutors and judges are motivated to recoup funds misallocated by the fraud of others, there is a general assumption that the vast majority of businesses do not engage in lawbreaking behavior.  When you discuss your situation with an attorney, it is advisable to have tangible evidence to support your claim.  Most successful whistleblower cases depend on more than just testimony by the party disclosing the illegal or fraudulent conduct.  Written documentation like medical records, emails, reports, data, financial records, billing statements, and notes typically is essential to prevail in qui tam actions.

The Scope of Qui Tam Liability Has An Expansive Reach.

Qui tam claims have existed since the Civil War, which is why the False Claims Act is called Lincoln’s Law.  However, recent modifications to the law and the enactment of other state laws that encourage whistleblowers to reveal fraud schemes against local and state government entities have expanded the reach of qui tam liability.  Federal laws now also allow qui tam claims to be brought based on banking fraud, unlawful securities activity, and tax fraud.  Government entities widely recognize the valuable role served by whistleblowers, so laws have been enacted to incentivize disclosure and provide legal protections to whistleblowers of a wide spectrum of fraudulent activity.  If you are aware of fraud committed against the government, it is worth seeking legal advice even if you are not specifically aware if the particular scheme is covered under a whistleblower law.

The Expertise, Knowledge, And Skill Of Your Attorney Makes A Difference.

The area of qui tam law is complicated and extremely technical, so it is essential to work with one of the small number of attorneys across the country who have a significant amount of experience handling these legal claims.  Successful prosecution of a qui tam claim involves both the extensive financial resources for document review and analysis, expert witnesses, forensic accountants/investigators, and other significant litigation costs.  Law firms that handle these claims also need sufficient manpower that includes both attorneys and support staff to gather, review, and analyze evidence.  When whistleblowers evaluate legal counsel, they should consider their specific experience with successful qui tam claims, litigation resources, and their understanding of the human side of these cases, such as concerns about employer retaliation.

Prompt Action Is Critical When Pursuing a Qua Tam Claim.

Since most laws that authorize whistleblower actions, such as the False Claims Act have a “first-to-file” rule, delay in seeking legal advice and initiating a qui tam claim can mean forfeiture of the right to a financial award.  While this does not mean a claim should be rushed prematurely, only the party who first files a claim disclosing fraud against the government is entitled to receive an award based on the public funds recovered.  This rule narrowly restricting who qualifies for an award necessitates obtaining legal counsel as early as possible.

The Act of Bringing a Qui Tam Lawsuit Is A Heroic Act.

Whistleblowers who expose individuals and businesses that defraud the government and endanger public safety are heroic because they risk potential retribution by their employers to protect the public interest.  The U.S. Department of Justice (DOJ) reports that the federal government has recovered $39 billion in taxpayer funds between 1987 and 2014 just under the False Claims Act.  While individuals who have exposed attempts to defraud the federal government under this statute have been rewarded with about $3.6 billion since 2001, the process can be long and arduous, so individuals that bring qui tam actions should be commended for their sacrifices.

At Barrett Law, our Mississippi Qui Tam Lawyers understand that individuals under the False Claims Act and other qui tam laws have concerns about reprisals by their employers, but we work with our clients to help protect their interests and maximize their award.  Contact our firm today at 800.707.9577 to schedule your free consultation, so we can answer any questions you may have regarding filing car accident case.

Novartis Agrees to $390 Million False Claims Act Lawsuit

Tuesday, November 3rd, 2015

Novartis, the Swiss based multinational pharmaceutical company, has entered into a settlement agreement that requires the company to pay $390 million resulting from a False Claims Act lawsuit filed by a former sales manager.  The former employee blew the whistle on Novartis, one of the world’s largest pharmaceutical companies in terms of gross sales, for using kickbacks to bribe specialty pharmacies into inducing patients to refill Novartis drugs.  The settlement between the U.S. division of Novartis and the federal government as well as forty states was based on the practice of issuing kickbacks to dispense costly Novartis medications.  According to Reuters, the pattern of kickbacks extended from 2007 to 2012.

The False Claims Act lawsuit alleged that six different drugs were involved in the kickback scheme.  Specialty pharmacies were incentivized to push Novartis drugs to increase the number of refills of the medications.  More patients were allocated to those specialty pharmacies that were successful in pushing patients to refill the applicable expensive Novartis drugs, such as Exjade (an iron chelation drug) and Myfortic (a transplant drug).  The lawsuit also alleged that Novartis encouraged specialty pharmacies to minimize the potential side effects and risks associated with their medications.  Pharmacies were motivated to achieve shipping targets for the medications on a quarterly basis.  Allegations in the qui tam action also indicated that Novartis relied on what were referred to as “score cards” that indicated which pharmacies kept patients on the companies drugs for the longest period.

Bioscrip, one of the specialty pharmacies involved in the scheme, provided government prosecutors with information regarding their improper financial relationship with Novartis.  Representatives of Bioscrip reportedly admitted pushing patients to refill Exjade at the urging of Novartis.  Although Bioscrip also was ordered to pay $15 million, the company presumably received more lenient penalties in exchange for its cooperation with the DOJ.  Evidence also was provided by Accredo Health Group, Inc. which acknowledged setting up kickback that amounted to approximately $60 million according to settlement documents.

Despite the significant financial penalties leveled against Novartis, they brazenly continue to engage in the underlying conduct that motivated the qui tam action.  A Wall Street Journal report indicates that Joseph Jimenez, the Novartis CEO, defended the rebates to specialty pharmacies as a system intended to encourage patients to complete their course of treatment.  The pharmaceutical executive also claimed that the conduct is a common industry practice because pharmacies need to play a role in promoting patient adherence.

The recalcitrant stance taken by the drug company is easy to understand based on financial data.  The company’s 2014 annual report indicated that the drug manufacturer reported $58 billion in net sales and nearly $11 billion in free cash flow.  The massive profits generated by the drug company’s elicit practices explain its willingness treat massive fines as a cost of doing business while persisting in fraudulent schemes that endanger the public.

The whistleblower who filed this lawsuit will receive a significant award for filing this action under the False Claims Act.  Whistleblowers who reveal these types of pharmaceutical industry practices serve a vital function by promoting public safety and exposing fraud.  At Barrett Law, our Mississippi Qui Tam Lawyers work to protect individuals who expose corrupt and unlawful practices while seeking the fullest compensation for whistleblowers.  Contact our firm today at 800.707.9577 to schedule your free consultation, so we can answer any questions you may have regarding filing car accident case.

 

Businesses Need Not Prove “Actual Damages” for Recovery Related to BP Oil Spill

Sunday, November 1st, 2015

Regardless of the sector of the economy in which your Gulf Coast business operates, you probably have heard plenty about the impact of the BP oil spill and oil rig explosion.  The environmental disaster resulting from the explosion of the PB Deepwater Horizon offshore oil rig, which resulted in eleven fatalities, caused the most massive oil spill in the history of petroleum extraction.  The consequences to the Gulf Coast after the oil rig sank involved devastating effects on the environment, wildlife, and the economic health of the region.  The impact was exacerbated by the staggering 87 days required to stem the glut of oil flowing into the Gulf of Mexico.

Investigations conducted by multiple organizations following the oil spill concluded that BP engaged in a pattern of ill-advised cost-cutting practices that promoted an unsafe environment leading to the tragic spill.  BP recognized that its survival was dependent on taking remedial action to mitigate the impact of its irresponsible conduct and public relations nightmare, so it established the Gulf Coast Claims Facility (GCCF).  The $20 billion fund was established to cover claims filed related to the Deepwater Horizon spill.  Approximately $6.2 billion was distributed from the fund to settle claims accepted from August 2010 until July 2012 after which the fund was replaced by a court-supervised settlement program.

Some Gulf Coast businesses owners are unaware that the formula used by the BP settlement agreement permits payment to claimants without proof of “actual damages.”  BP filed a motion requesting a court to permit the company to cease making payments on thousands of claims, but the request was denied in July 2013.  Although the requirement to pay the claims was self-imposed under a settlement agreement drafted by BP, the company appealed the denial of its motion to discontinue payments to the Fifth Circuit Court of Appeals.  However, BP’s request was denied because the 5th Circuit upheld the lower court finding that the settlement agreement did not impose a duty to prove direct harm from the spill to recover under the terms of the BP settlement agreement.

There are two important takeaways from this litigation for potential BP claimants.  Ambiguous terms or provisions in the BP settlement agreement generally will be construed against the company because it drafted the agreement.  Further, businesses in Mississippi and throughout the Gulf Coast region might have a claim for compensation from the BP fund.  While not all businesses will have a viable claim, our Mississippi BP oil spill claim lawyers are currently evaluating the rights of those adversely affected to determine their legal right to financial compensation.

Our Mississippi BP oil spill law firm recognizes the enormous financial impact of this tragedy, and we are committed to pursuing the fullest compensation for our clients.  At Barrett Law, our Mississippi BP Oil Spill Attorneys are here to help.  Contact our firm today at 800.707.9577 to schedule your free consultation, so we can answer any questions you may have regarding filing your claim.