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An Expert or an “Opinionater”

I know it is hard to believe, but I am truly starting the blog with a picture that is related to the subject matter. I know… that is some crazy blogging!

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Please fight through the blog today because there really is a purpose. I mean it!

This is probably more of a sports blog… because I wanted to write about the upcoming NFL draft. But, I am writing it in the context of law.

(Here we go…talking some legal) To be qualified as an expert in a jury trial, you have to be qualified to give an opinion that is beyond common knowledge. The Virginia jury instruction tells jurors:

In considering the weight to be given to the testimony of an expert witness, you should
consider the basis for the opinion and the manner by which the expert arrived at it and the
underlying facts and data relied upon.

Which leads me to the the concept of “experts” as it pertains to NFL football drafting.  (And yes, I do enjoy using the “emphasis quotes” which is probably as irritating as seeing someone using “air quotes” when they talk) Football fans know that it’s almost time for the NFL draft. My email in-box is being targeted with all kinds of offers to buy draft information, and sports sites are filled with updates and predictions on who will be drafted in the first round. These “experts” all have their opinions.

So let’s travel back to 1998. It’s the draft and the Indianapolis Colts are on the clock with the first pick. Do they pick Peyton Manning or do they pick Ryan Leaf. Well, here is Vic Carucci’s thoughts on who to pick:

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Carucci’s opinion that the Colts should select Leaf is actually laughable now. The reason I post this scouting report is to show that experts can be absolutely wrong. He missed it here.

Recently I watched an ESPN 30 for 30 episode about the 1993 NFL draft. The year that John Elway was drafted first. During that ESPN documentary, we are reminded of their draft expert, Paul Zimmerman, who proudly proclaimed that it was a mistake for the Miami Dolphins to draft Dan Marino. “I don’t understand it”

He went on to say that no one was there to coach him and that it was a mistake for the Dolphins to draft him. They had other needs. That was his draft expert opinion.

I close with the thought that I have seen more expert opinion that should really be more”Opinionater” than expert. In trial, I see defense experts making the proclamation that someone needs no more treatment and has no permanent injury… after only seeing medical records and not even seeing the person.

I had one defense expert tell me under oath that he felt more qualified to give an opinion after not seeing my client, because this made sure that he was not impacted by any bias. Solely basing his opinion on the records. Of course, he smirked when I asked him if he refused to see patients in his office… because meeting them would cause a bias of his treatment. Boom! That is no expert opinion. That is silliness.

And for pic o’ day… I think this qualifies as good expert advice!

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The Starfish Reminder

I love what Ronald Reagan wrote to Nancy!

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The power of human connection!

And this story from livelifehappy.com sums up what keeps me going!

An old man walked across the beach until he came across a young boy throwing something into the breaking waves. Upon closer inspection, the old man could see that the boy was tossing stranded starfish from the sandy beach, back into the ocean.

“What are you doing, young man?” He asked.
“If the starfish are still on the beach when the sun rises, they will die,” the boy answered.
“That is ridiculous. There are thousands of miles of beach and millions of starfish. It doesn’t matter how many you throw in; you can’t make a difference.”

“It matters to this one,” the boy said as he threw another starfish into the waves. “And it matters to this one.”

Recently I have been interviewing attorneys for our offices. In fact, I have hired 2 attorneys and am close to hiring a few more. Why? Well, this story summarizes it, just like the question that I am regularly asked in my attorney interviews:

When do you plan to retire?

I actually have a physical reaction to that question. The longer I practice law, the more irritated I get with the way that insurance companies treat people. It’s what drives me…puts a chip on my shoulder! It’s why I have no plans to retire and don’t even react well to that question.

What motivates me? Maybe we won’t change how insurance companies treat people. But for our client on this case…it matters to this one!

As that website says, “We make a living by what we get. We make a life by what we give”.

And for pic o’ day…this one always makes me laugh:

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Happy Too!

I always like to start Our Monday Blog with some positivity. This pic o’ qualifies as reaching goals. Right?

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While driving down the road recently, I saw a billboard advertisement for a grocery store chain that simply said, “Groceries Delivered“. That seems to meet a need, but it also is becoming more popular. Perhaps the aggressiveness of Amazon is causing everyone to step up their game in the grocery business.

I remember being one of the first law firms to advertise “We will come to you“. I had noticed a trend of several new potential clients failing to show up for their appointments at the office. I learned that once someone had crashed their car, it made it very difficult to come to our office. Missing the appointment made total sense. I had to come up with a solution… going to their home on their time.

Which brings me to the thought of how to step up our service now? What message or new service could I advertise.

I love the positivity of my father-in-law. When someone asks him for help, he regularly responds with, “Happy Too“. Be willing and ready to help! If I could convey that in all of our ads… then I have maintained our true hopeful message. If someone needs our help… I hope that they feel our response of “Happy Too”!

 

And finally, for our pic o’ day, I think many of us relate to this as we sit in that chair!

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When the Jury Does Not Show Up!

Here we are… it’s Monday! Is this how you felt this morning?

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At the beginning of every jury trial, I always start by thanking each jury member for taking the time to be there. I sometimes wonder if they think that it is just my memorized introduction. They would not think that, if they saw Sunday’s edition of the Richmond Times-Dispatch.

The article (here) is titled, “Jury duty no-shows in Chesterfield are causing trial delays – now the no-shows may get fined, too”.

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But here’s what the reporter is saying.  There were 373 summoned Chesterfield residents who initially failed to appear for jury duty in 2017 and January, 2018. Ultimately, 103 showed up to explain to the judge why they failed to report for jury duty. So far, the court has entered dollar judgments against 24 people. Some of those judgments are as high as $200.

I have previously blogged about having a trial continued in Chesapeake, Virginia, because they did not have enough jurors show up for court.  In Chesterfield, the no-shows are a cause of growing concern in Chesterfield. Court personnel reports having to sometimes scramble to find enough people to seat juries. One November jury trial was canceled because of no-shows.

In the article, Chesterfield Sheriff Karl Leonard was quoted as noting that, “It’s a huge problem. It really delays justice.” He also went on to discuss that some Chesterfield’s circuit judges have indicated they may want him to send deputies to pick up prospective jurors from their homes or workplaces, if enough don’t show up for jury duty.

The Henrico Chief Judge has indicated they they are fortunately not having the same issue. “We just have not had a problem,” said Chief Henrico Circuit Judge James Yoffy, “We do have a good system out here.” Petersburg Circuit Court recorded the third-highest number of juror absences in the region — 312.

Just a quick note on the process from our end. We set a court date that is sometimes almost a year away. Then, we make arrangements with witnesses and send out subpoenas. As to doctors who are going to testify, we subpoena them and then sometimes are also required to pay them a NON-REFUNDABLE trial testimony retainer payment.

If it is a very busy doctor in a specialized area of medicine, that retainer could be $5000-$10,000. Getting on their schedules and then paying large retainers to doctors is expected. Then… you truly hope that all scheduling will work and that everyone will show up, so the trial can go forward. Delay is normally good for the defense because it means that the defendant can put off responsibility for the harms, for a little longer.

Unfortunately, if a trial is continued, it’s not just a matter of showing up the next day. Those days are already pre-scheduled.  It’s once again trying to get back on the Court’s docket. It usually means going downstairs to the Clerk’s office and hoping to get back on a little sooner than it originally took to schedule.

But… those non-refundable retainers to the doctors are usually gone. For the next court date, it takes more non-refundable retainers.

That’s why my beginning remarks to jurors are truly from a place of thankfulness! Even though this is how some might be thinking:

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And for pic o’ day…

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Punishment Punishment??

I could write about Ed… with cherries on his head. What? There are just some things that are difficult to explain. For instance, in 2016, Americans spent a reported $5.3 million dollars buying U.S. flags… that were made in China. Things that make you go hmmmm!

This blog is about punishment legislation in Virginia. Legislator thinking is the confusing part. And I will present some thoughts, but I cannot promise that I can explain it. Of course, you have to remember what they say about the value of free… and that includes free blogging.

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So here we go. FIGHT THROUGH IT WITH ME!

The headline says, “SB 895 Punitive damages; raises cap from $350,000 to $500,000“. In Virginia, this legislative session had a Senate bill that was introduced to increase punitive damages from $350K to $600K. Then, it was amended to an increase to $500K instead.

It “sailed” through the Virginia Senate committee by a vote 24-15. The question is, “why would someone vote yes or no for an increase in punitive damages?”. Here’s how the voting of the senators was registered.

YEAS–Barker, Chafin, Chase, Dance, Deeds, Ebbin, Edwards, Favola, Lewis, Locke, Lucas, Marsden, Mason, McClellan, McPike, Obenshain, Petersen, Saslaw, Spruill, Stanley, Stuart, Surovell, Vogel, Wexton–24.

NAYS–Black, Carrico, Cosgrove, DeSteph, Dunnavant, Hanger, McDougle, Newman, Norment, Peake, Reeves, Ruff, Sturtevant, Suetterlein, Wagner–15

It it now headed to the Virginia House Courts of Justice Committee vote, before heading to the full floor. But again, why would someone be against punishment damages.

Just a couple of thoughts. The punitive damage amount has not been increased in Virginia in 30 years. Insurance is required to cover the punitive damage verdict, if such is awarded by a jury and there is enough insurance to cover it. Also, there is a very high legal standard to meet, to get punitive damages to a jury. Otherwise, a judge will strike it from the case.

So again… what makes a legislator vote against or for it.

I think that those against the punitive damage increase, view it as an issue that is related to being pro-business. If you vote against it you must be helping Virginia in bringing more new businesses to the Commonwealth. Also, you are keeping insurance rates down, because you are helping to keep verdicts down. Verdicts that insurance would otherwise have to pay. Does that sound like good logic?

I think you probably know where I am leaning, but I will say that I am all for bringing new businesses to Virginia; and I do want insurance rates to be lower. In the coming days, I will have some follow-up on the insurance rate issue. Believe me! I want lower rates!

Now here is what we know. When you are starting a business in Virginia or you are thinking about coming to Virginia to do business, you are not asking anyone, “Do you know how much I will have to pay in punitive damages?”. Why? Because no one believes that they will do such acts that are so egregious, that they will be responsible for punishment damages. No one asks “I wonder what will happen when I drive drunk the next 13 nights“.

Punishment damages also serve to protect Virginia citizens. We do not want companies coming to Virginia and intentionally hurting its citizens with their conduct or their products. Remember, it’s not about doing something that causes injury with a mistake or accident… it’s about causing harms with reckless disregard. The legal term includes “willful and wanton” which basically means a conscious or intentional act. That’s why a legislator should be protecting Virginia citizens.

I look at those legislators who have voted “no” and I think, “why don’t they care about their constituents?“. Do they also want to protect drunk drivers?

Now that probably seems a bit harsh. But, I am guessing they do not even realize why they are voting against an increase, for something that has been in effect for 30 years. These same legislators are probably not telling Dominion Power to roll back rates to 1980.

A business who does such bad intentional acts should not be able to get away with it, by simply being responsible for $350K. That is nothing to many businesses. Otherwise, and they can just factor bad behavior into their budget.

As to the insurance increase; if a policy is on an individual, they only have to cover the amount of coverage that is written. In Virginia, a minimum policy is $25K. If it is a business, then typically there are assets to cover a verdict. In the instance when there is coverage… they have already charged significant premiums to cover these insurance amounts. So there should be no increase.

Have I convinced you either way? Well, let’s just all hope that we do not deal with people or businesses that commit such acts that are even worthy of consideration for a punishment damage verdict. In the meantime, it will be interesting to see what the House thinks about this issue and whether the increase will ultimately become law.

On a different note for pic o’ day… this can be explained!

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Hammer Meets Nail!

How about a Christmas picture to get Our Blog week started?

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When I received that… I laughed!

Here’s what we know on a Monday. No one wants to hear how someone’s fantasy football team did over the weekend, and no one wants to hear about how much money someone made in bitcoin. Right?  (Yes, I know. That was just random)

We want useful!!! Something that effects us. Thus, I will be a bit random now to get to our ending point.

So let me mention my weight loss idea. On Friday I decided to punish myself for gaining a couple of pounds. I know it sounds crazy, but stick with me.

Recently, I ordered some custom shirts from a men’s shirt company that is located in India. I sent them my sizes. When the shirts arrived, they all felt tight. I was stuck. Send them back and spend almost as much in shipping as I spent on the shirts? Give them away? Or, torture myself. I went with the torture weight loss program of shirt tightness.

With a sport coat on, you probably wouldn’t notice. Me? I felt the tightness all day. One piece of lettuce felt like too much food. I knew I needed to lose at least 3 pounds! It’s the little things. Like not just digging into the Christmas cookies that show up at our office. Which brings me to some poetry for the blog to make us wicked smart!

One of my favorite poems is For The Want of a Nail.

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the message was lost.
For want of a message the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.

 I connect that thought to the court system. The 2017 statistics are not out yet but; in 2016, the Virginia Supreme Court issued opinions on 15 injury case appeals. This included death cases and malpractice verdicts.

In those 15 cases, the injured party only won twice. In the sports world, that is a 2-13 record. That is part of a continuing trend in Virginia. Over the last several years, the defense is winning at the appellate level of the Virginia Supreme Court by historic margins.

What do these statistics mean? Stay with me on my stream of consciousness.

Following Tuesday’s election, democrats were celebrating the victory of a an elected Democrat in Alabama. In Congress, it means that Republicans hold a slim 51-49 Senatorial advantage. It makes it difficult to push legislation through unless everyone votes along party lines. Similar to getting judges approved.

There is a similarity in Virginia. Selection of Virginia state court judges occurs through legislative election. Virginia is one of only two states that use this method in choosing judges. The other state is South Carolina.

It’s why  there are court challenges regarding this past November’s elections to determine whether Republicans or Democrats will control the Virginia House of Delegates. Right now, the difference stands at a Republican majority of 51-49, with a possibility of that still flipping.

That impacts laws. That impacts appointments. Which means… that could impact how a Supreme Court justice might apply laws during appeals. That’s not to say that any of the above opinions would have changed. But, in the federal system, it’s not unusual to see a ruling by a 5-4 decision.

Elections can impact judicial appointments. Appointments could potentially impact appellate decisions. It’s why every vote does count. It’s the little things.

And I decided to close with a pic o’ day that is not holiday related. But is is a blog tip…or something!

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Moe Levine On Loss

Do you read the blog for good advice. How about this advice??

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Now let me write a bit about a lawyer who is legendary in law circles. Moe Levine passed away in 1974, but he still lives on in his recording and writings. Many of his openings and closings have been transcribed and have lived on as examples of advocacy.

To give you an example of one of his closings, these few sentences come from a personal injury case in the 1960’s, where he was seeking damages in a double amputation trial. In expressing the everyday losses of his client, he said the following to the jury,

I need not call any army of experts and parade before you countless medical professionals to illustrate this boy’s loss. I need only tell you that I had lunch with him today, and he ate his food like a dog.”

It’s true that what he said was probably objectionable, because he was basically testifying in closing. However, it’s an example of the way that he thought, in conveying loss.

His primary discussion in discussing what a person has lost was summarized in this statement, “It’s not what the defendants have taken from the injured plaintiff, but rather what they left him or her with.” Here is how he conveyed that in a closing:

If a man with 20/20 vision has an accident and is left with 20/40 vision, you have taken his 20/20 vision from him. But you’ve left him 20/40 and he has good function with 20/40. On the other hand, if you take a man with 20/200 vision, who barely sees light and you blind him, you’ve left him with nothing.” This reframe is subtle, but powerful. In another example, Levine poses to the jury, “suppose you had a million dollars, and I took five hundred thousand dollars away. I would have taken a great deal of money from you but I would have left you with a half million dollars. As you still have a half million dollars, you are not left broke. On the other hand, suppose you had one dollar, and that dollar is taken from you. You now have nothing.

In yet another example, he compares loss to a candle, where the smallest candle makes the darkness tolerable. “You blow out the candle, and you are left with the abysmal fear of blackness: no light left. You have taken it all“.

He believed that the Old Testament was a good source of example in considering damages. He conveyed the loss of  enjoyment of life as described in the book of Ecclesiasteswhere it says that it is right and good that when a man has finished this day’s labor, he shall enjoy living.”

I enjoy looking back at the arguments of past lawyers. Most have not withstood the sands of time. But, Moe Levine’s thoughts on damages are still applicable today. In law school, my mock court professor played some old recordings from speeches that Levine made, in the 50’s and 60’s. At the time, it didn’t mean much to me. Now, as I look back, I have a great appreciation of that education. Life experiences had not yet prepared me to appreciate the discussion of loss.

 

And for pic o’ day……

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A Conspiracy Conspiracy?

First, let’s start with some fax humor… because you don’t see fax humor very often!

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During football watching on Sunday afternoon, multiple times a FedEx television commercial ran from a supposed Conspiracy Bookstore. The employees in the commercial were explaining their theories on a recent hike in online book sales. It wasn’t funny the first time. Not funny the 20th time; which might explain why you don’t remember it.

One of the employees credits galactic entities for buying all the books to conceal their alien secrets. The other worker credits FedEx because of their affordable deliveries. The FedEx guy just shrugs at the conspiracy theory.

By the way, do you buy into the conspiracy of Apple slowing down old phones with their constant updates? For several years, the Internet has been warning (as I use the Internet like a person identifier) that Apple keeps sending updates, to cause your old phone to slow down enough to irritate you and make you buy the new phone.

All I know is that I am tired of having constantly being asked by my phone and iPad whether I want to download my update now or at midnight. No is my answer. I was perfectly happy with my phone and iPad until your constant pestering. But I digress!

The real conspiracy that recently grabbed my attention (Reuters News)  relates to a pharmaceutical company. The New Jersey Attorney General has accused Insys Therapeutics  of engaging in a fraudulent scheme to boost the sales of their fentanyl-based cancer pain drug. Recently, Massachusetts announced a $500,000 settlement with Insys to resolve similar allegations.

The New Jersey attorney is claiming that the drug company had created a fraud scheme to encourage the prescriptions of a fentanyl-based pain medication, usually reserved for cancer patients. The intent was to get doctors to prescribe it broadly to many of their patients; not just those suffering great pain.

The New Jersey filed lawsuit alleges that Insys paid kickbacks to doctors, including sham speaker fees to induce them to prescribe the drug, defraud insurance companies into paying for it.

The lawsuit states that Insys’ greed put hundreds of lives in jeopardy and led to the 2016 overdose death of a New Jersey woman, who was prescribed a fentanyl-based medication to treat fibromyalgia. “The conduct alleged in our lawsuit is nothing short of evil,” Porrino said in a statement.

The NJ lawsuit was filed on the heels of the Massachusetts Attorney General Healy announcing that Insys would pay $500,000 to resolve similar allegations of schemes and kickbacks. (Doesn’t sound like much of a punishment. Right?) The political rhetoric would lead us to believe that this drug company is just plain evil and needs real punishment.

Fentanyl is a powerful and highly addictive drug with deadly consequences, yet this opioid maker aggressively marketed its product and made illegal payments to providers to boost sales,” Healey said in a statement.

Now that’s what I call a conspiracy. Just not one that really surprises me.

And finally for pic o’ day, here’s one from the past that always makes me laugh. Some explanation for that conspiracy?

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Lessons From Pilots

I am treading on dangerous territory because I am about to discuss plane crashes. I say dangerous because I don’t like to fly; which also means that I don’t enjoy plane crash thoughts. So, you can already be assured that this is a positive blog. I promise promise!

Studies of plane crashes between 1940-1990 always showed the same statistic. 65% of the time, airplane crashes were due to pilot error. It didn’t matter what the airlines did.

They increased pilot classroom training. They implemented aviation reforms. They required specific flying hour limitations. Still, no matter what the airlines did, bad decisions in the cockpit still caused crashes 65% of the time.

Then that statistic changed! In the late 1980’s, airlines introduced realistic flight simulators. Now pilots could practice landing in a sudden downdraft thunderstorm, or with only one engine. They could learn what it was like to land a plane with landing gear problems; or fly without wing flaps.

Their experience of problems was better than training by “chalk and talk”. They were doing, even though it was by simulator. Federal Aviation representatives labeled it as “the goal is to learn from those mistakes when they don’t count; so when it matters, you can make the right decision”.

This training process was coupled with a method called CRM (Cockpit Resource Management), which made flying a team effort to include the other members of the flying team. Soon, pilot error as the cause of crashes had been reduced to 30% of all crashes, which also meant that there were far less crashes. More specifically, it now became safer to fly than drive in a car. See… positive!

I believe that same thought applies to trial work. Experience and team! No matter how many seminars you attend on trial and depositions, nothing replaces actually doing it.

What does this mean at the firm? Well, I always try to make sure that our lawyers have a second chair with them. That’s part of the team concept. Also, it’s experience in the courtroom. It doesn’t mean that we don’t keep attending seminars. That’s the chalk and talk of our work.  Unfortunately, there is no substitute for experience. Right?

And for pic o’ day, this isn’t to mean that I don’t enjoy work. Still…. he makes me laugh!

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The Hidden Persuasion of Why

I saw a sign the other day that said, “I’m Busy. You’re Ugly. Have A Nice Day!” It’s crazy. But if I think about that, it irritates me. And the person that posted it probably thought it was funny, or they didn’t think at all. I guess I just shouldn’t wonder why someone would post that sign.

Is there a hidden meaning. What something is. What something means.

While in college, I attended a weekend political management school. Political consultant Morton Blackwell had founded The Leadership Institute to help prepare students in politics, government and the news media. (info here)  I thought that the seminar was amazing.

He taught us how to create excitement with flashing cameras; never give a bureaucrat a chance to say no. For instance, it was recommended to just set up brochure tables and hand out campaign material rather than waiting for campus zoning permits. Or, schedule organizational meetings, instead of waiting to be a recognized college campus official group. (it’s better to ask for forgiveness rather than ask for permission). Just getting things done!

In the realm of persuasion,  don’t let a candidate have a picture taken with an alcoholic drink in their hand. Make sure that you always wear your name tag on your right lapel, so people can easily shake your hand and look directly at your name tag.

Little items of persuasion that make a difference in a political campaign. It could have also been called “How To Persuade With More Than The Spoken Word”. I guess that’s why they say that a picture is worth a thousand words! 

As I got older, I found persuasion in the practice of law. About ten years ago, we were involved in the representation of clients with claims against pharmaceutical giant Merck,  relating to their manufactured drug, Vioxx. It was determined that Vioxx, an anti-inflammatory non-steroidal drug, was causing heart attacks and strokes and Merck knew it.

Ultimately, Merck was fined or sanctioned over 950 million dollars for conduct relating to pushing the drug for off-label use and other illegal marketing. (CNN) One Merck sales rep admitted to CBS (article here) that “I knew damn well it was dangerous”. Still, even after knowing the overwhelming evidence of the dangers of Vioxx, the company continued to push sales, and millions of prescriptions were still written.

The company created a high pressure sales training program to continue to sell the drug. It was ultimately revealed during litigation that the company told their 3000 sales people that they were prohibited from telling doctors about the studies that showed increased risks of strokes and heart attacks.

The sales people were specially trained in body language to create empathy with the doctor. They were taught persuasion techniques that included how to shake the doctors’ hands, how to use verbal and non-verbal cues to subconsciously raise their level of trust. All this training was heightened to help push Vioxx, while the company must have known that ultimately the medication would be pulled from the market.

Ultimately, the sales techniques came to an end. Merck entered into a global settlement of 4.85 billion dollars to settle over 27,000 claims nationwide. It was one of the largest civil settlements ever. (ABC News)   

When I see that the new healthcare bill being pushed through Congress, I often think about the various pressures that are being persuasively applied to these legislators. Why are some legislators trying to include provisions in a healthcare bill that would give immunity to pharmaceutical companies. Hidden persuasions that disguised in healthcare.

 

And for our pic o’ day…

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