If you’ve followed news about Fosamax lately, you’ve probably heard the term “bellwether trial” thrown around. The judge in that case has ordered two more bellwether trials in addition to the five that have either already been decided or will be decided later this year. So…
Basically, a bellwether trial is a trial to indicate future trends in a specific litigation. They are used when a large group of plaintiffs have filed suit based on the same theory or claim and the only feasible way to handle the caseload is through a bellwether trial.
Think of it this way—NASA has flight simulators. Marketing departments have focus groups and in-home trials. Pharmaceutical companies have clinical trials. And your local car dealership hands you the keys for a test drive. Law schools may have mock trials, but the only way to really get a sense of how a major lawsuit is going to play out is the bellwether trial.
In a bellwether trial, a small group of plaintiffs is chosen to represent the group. Those plaintiffs are chosen because their issues are common amongst all the plaintiffs. Most large-scale lawsuits, such as asbestos or Fosamax, will run three to five bellwether trials, although the judge can order more or fewer.
Also, because a major lawsuit can take a long time to wind its way through the legal process, the bellwether trials become a key milestone for both plaintiffs and defendants–and are, therefore, eagerly awaited by all involved. For example, talk of Yaz lawsuits (or Yasmin lawsuits for that matter) has been going on for a while. But the first Yaz bellwether trial is scheduled to take place later this year, on September 12, 2011 for pulmonary embolism side effects; that will be followed by one set for January 9, 2012 and finally a Yaz thromboembolic case on April 2, 2011. Given such a drawn out timeline, it’s no wonder everyone looks to Read the rest of this entry »
Good question—and this week, Pleading Ignorance answers it. It’s a question a lot of people have: Can I still file a lawsuit if there’s already a settlement? I spoke with attorney J. Benton Stewart of Stewart Law, P.L.L.C. to better understand the in’s and out’s of class action settlements and when it’s best to file your lawsuit.
Class action lawsuits can be opt-in or opt-out lawsuits.
If they are opt-in, then you have to ask to be part of the lawsuit. Typically, with an opt-in class action, you have to submit a claim form indicating that you wish to be a part of the class action—you have to officially “opt in”. If on opt-in class action lawsuit settles and you weren’t part of the class, you’re still free to bring about your own lawsuit. If you were part of the class, then you can’t bring one of your own.
In an opt-out lawsuit, you’re automatically part of the class regardless of whether or not you meant to be—you have to tell the claims administrator that you don’t want to be part of the class before you’ll be taken out. In this situation, if you haven’t told them that you do not want to be part of the class and the lawsuit settles, you can’t bring your own lawsuit. Basically, if you’re included in a class that settles, either because you chose to be or because you didn’t opt-out, you can’t bring your own lawsuit.
Bottom line, if you think you may want to file your own lawsuit against the defendant in the class action lawsuit, you cannot have been a member of the class (ie, the plaintiffs) of the class action. Still with me?
Of course, there’s more to it than that because of how settlements normally work.
Once a settlement is announced, usually a pool of money is set aside to pay all the claims. Instead Read the rest of this entry »
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 »
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.
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 »
Just about anyone who’s a veteran has had a Veterans Affairs claim at some point in his or her life. Those who haven’t filed a claim likely will at some point in the future. And yet, despite the claims process being somewhat simple, the appeals process can be complex, and if your claim is denied, it’s good to know what rights you have.
Today, Pleading Ignorance looks at how to file a VA Claim—and what to do if it gets denied. We asked attorney Ben Stewart of Stewart Law, P.L.L.C. for some pointers.
So, to start, let’s assume you’ve filed your VA claim. Once you’ve filed that paperwork, the VA will make a decision about what benefits will be provided to you, if any. So far, so good.
But, if the VA denies all or part of your claim, you have options—three in fact:
1. Reapply for benefits
2. Request a review of the decision
3. File an appeal
While you can try to reapply for benefits or request a review of the VA’s initial decision on your claim, you may have more success if you file an appeal. If you appeal the decision you may want to have a lawyer help you. This is because a lawyer who is experienced in veteran claims will know the applicable regulation that can be used to overcome a denial. The lawyer can also represent you in a hearing before the VA appeals board.
Making things complex is that laws concerning veterans’ benefits are constantly changing. Some of those changes are retroactive and some are only applicable from the date they are put in place. With retroactive changes, you may have previously been denied benefits for a specific condition but can now reapply and receive back benefits from the date of your previously denied claim.
When the changes are only applicable from the date they are put in place, it doesn’t matter if you previously met the new requirements for benefits, you won’t receive back benefits. But, you may still be eligible to start receiving benefits from the point the regulation was changed going forward.
For example, the VA has recently relaxed the rule for establishing claims of veterans post-traumatic stress disorder (PTSD). The move makes it easier for veterans to prove they have a disability due to service-related stressors. Veterans who did not qualify for PTSD benefits before, or who were denied benefits under previous rules, may now qualify. But, they will not receive benefits retroactive to their first claim. Rather, they will receive benefits starting from the date of the application filed after the rule change.
Furthermore, some changes in benefits related to Agent Orange use in Vietnam will be retroactive to the filing date, meaning veterans should file their claims as soon as possible.
“File now,” says Ben Stewart, attorney at Stewart Law, P.L.L.C. “Even if your claim is denied, you can start the claims period. That way, if it is accepted later, your benefits will go back to the original date when the claims were denied.”
New medical conditions added to the list of those linked to Agent Orange include heart disease, Parkinson’s disease and B-cell leukemia.
“There are new regulations all the time, that’s why veterans should consider a veteran’s benefits attorney who has been tracking changes in the law and advocating for veterans,” Stewart says.
J. Benton Stewart II, attorney at Stewart Law, P.L.L.C., is an experienced prosecutor, municipal magistrate and civil trial lawyer. Stewart Law specializes in the following areas of practice: Professional Negligence, Legal Malpractice, Securities Litigation, Class Action Litigation, Products Liability, Personal Injury and Wrongful Death.