Class Action Blog : Class Action Lawyer & Attorney : Meiselman, Denlea, Packman, Carton & Eberz : Consumer fraud, Personal Injury

Vacation travel scams never seem to go out of style and we may be seeing a new outbreak of this predatory practice.

It starts with a phone call from a telemarketer who claims to be working for a cruise line.  The consumer who answers the call is immediately congratulated for winning a “contest” – very likely a contest he or she never entered in the first place.  The purported “prize” is an all-expense-paid, 4-day, 3-night cruise to the Bahamas or Mexico.   The caller says the cruise is worth $600 per person, and you can travel with a party of up to 16 people – a $9,600 value.  This supposedly free cruise offer is good for up to 18 months, and allegedly can be used on any of three major cruise lines: Carnival, Royal Caribbean, or Norwegian.  The purported “prize” includes your cruise ship cabin, all you can eat, activities and Las Vegas-style entertainment on board.

What’s the catch? To claim your so-called “prize,” you have to give your credit card number to a complete stranger on the phone and pay a purported “tax” of $93 per person.  Since the cabins are double occupancy, that’s a minimum charge of $186 – or $372 for a family of four.

Several aspects of this transaction are suspicious.  The callers asking for your credit card number have no good explanation for the alleged $93 “tax.”  Is it really a tax, or is it allegedly a source of profit to the cruise line, its travel agent, or the telemarketer?  Are there hidden charges despite the promise of an all-expense-paid trip?  Can the consumer book a trip when he or she wants to travel?  How many people who pay the so-called “tax” never get to take the promised cruise?

If you’ve been deceived by a sham cruise line promotion and/or lost money as a result of a cruise line scam, please contact us to discuss your legal options.

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Are Pampers diapers causing chemical burns on babies?  Thousands of parents think so, and now government officials are investigating their claims.  The Consumer Product Safety Commission (“CPSC”) has announced that it is reviewing complaints received about diaper rashes that appear to be associated with the use of Pampers diapers with Dry Max, manufactured by Proctor and Gamble (“P&C”).  Parents have reported the appearance of what look like chemical burns on their children when using Pampers Swaddlers diapers with Dry Max and Pampers Cruisers diapers with Dry Max.  Indeed, in March, 2010, P&C changed its "Pampers Swaddlers" and "Pampers Cruisers" to include "Dry Max."  Dry Max is a thinner and more absorbent material that replaced the paper pulp previously used.  P&C calls the change "new and improved" but some parents are calling it a nightmare.

For example, Jenny Cooper of Eugene, Oregon is one of those parents.  Cooper told KVAL News that within about two days of using Dry Max diapers her son Paul developed a rash.  "And then it started to get worse," she said. "It actually started to blister on him.  And the blisters started to bleed on him.”  Paul was in so much pain, he would fight his mom when she tried to change him.  "There was a lot of screaming and crying and tears," said Cooper. "And he didn't want to sit down because his bum was really sore."

Cooper thought it might be a reaction to the diaper so she went online to find out more information. At one point, she went onto the Pampers Facebook page and found a link to another Facebook group with more than 6,500 members called "Pampers bring back the OLD CRUISERS/SWADDLERS."  The site includes numerous horror stories, tips from parents of how to cure the rash, and some very graphic pictures of irritated skin.

As for Jenny, she changed Paul into Huggies and said the problem has gone away.  She told KVAL News she strongly believes her son's rash was directly connected to the diapers.  "There's something wrong with the diapers," she said. "I'd like to see a mass recall of all the Pampers Cruisers and any of the other affected products.”  Cooper told KVAL News she called P&C to complain but says it didn't do anything.  She called P&C again a few days later and told the P&C customer representative she was taking her story to the news.  It was at that point that P&G quickly agreed to refund her money.

If you purchased and used "Pampers Swaddlers" and/or "Pampers Cruisers" and your child has been injured as a result, please contact us to discuss your legal options.

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The new healthcare law recently passed by Congress and signed by president Obama includes significant changes and expansions of the federal False Claims Act (“FCA”), making it easier for whistleblowers to file a claim and potentially earn millions of dollars helping the government fight healthcare fraud.

In one of its more significant false claims provisions, the healthcare reform law imposes an explicit duty on physicians to return known overpayments to the government within 60 days of discovering an error. Retaining an overpayment beyond that deadline could constitute a false claim. Because the 60-day window is a short one, doctors should analyze their claims on a regular basis.

Moreover, the new healthcare bill states that anti-kickback violations can also give rise to false claims liability. And when it comes to anti-kickback claims, the government is no longer required to prove that a physician or another claimant had a specific intent to violate the law, making it easier for the federal government to prosecute. And because a wide range of activities could be considered kickbacks -- from discounts to referral fees to marketing practices -- medical providers should scrutinize their arrangements with other health care entities.

Most importantly, pursuant to the new healthcare bill, whistleblowers are given more opportunities to help root out fraud and the healthcare bill eliminates the “original source” requirement of the False claims Act. The health reform law now allows whistleblowers to initiate false claims actions based on information already publicly disclosed through state or local administrative reports or proceedings, such as a state Medicaid audit. In other words, a whistleblower no longer has to be the original source of the information to be able to use those additional facts to help build a case. The amendments to the healthcare bill effectively nullified a March 30 Supreme Court decision, Graham County Soil v. U.S., that held the so-called public disclosure bar was intended to limit a whistleblower's ability to use secondhand information to generate false claims cases.

In sum, the health system overhaul includes changes to the federal False Claims Act and other anti-fraud statutes that:

·         Require physicians to return overpayments within 60 days of discovering a payment error;

·         Make it easier for the government to use anti-kickback violations as the basis for a false claims suit;

·         Allow whistleblowers to initiate lawsuits based on certain publicly disclosed information;

·         Permit physicians to self-disclose potential Stark violations; and

·         Allows the Centers for Medicare & Medicaid Services (“CMS”) the discretion to reduce repayment amounts for Stark violations.

If you are aware of Medicaid and/or Medicare fraud being committed against the United States government by a city, doctor, hospital, clinic, pharmacy and/or medical supply company, you may be entitled to a multi-million dollar award. You can help hardworking taxpayers from being cheated -- and earn millions of dollars in the process -- by blowing the whistle on Medicaid and Medicare fraud.

If you know or suspect that Medicaid and/or Medicare fraud is being committed anywhere in the country, please contact us to discuss your legal options.

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Every year, thousands of elderly Americans are abused in nursing homes and other facilities responsible for their care.  But what should family members do if and when they suspect that a member of their family or a friend residing in an elder care facility is being abused?  And what signs should they be looking out for if they suspect that the elder care nursing facility is engaging in negligent care?

What Is Elder Abuse?

As elders become frailer, they are less able to stand up for themselves or to realize that they are being treated negligently.  They may not see or hear as well or think as clearly as they used to, leaving openings for unscrupulous nursing homes and other elder care facilities to take advantage of them.  Frequently, nursing home workers do not adequately perform the job assigned to them and, as a result, nursing home residents may be harmed psychologically or physically, and don’t know how to or are afraid to report the abuse.

Types Of Abuse

There are different kinds of elder abuse that are both unlawful and can result in injury and even death.  For example,

• Physical Abuse:  Physical abuse includes not only physical assaults such as hitting or shoving but also the inappropriate use of drugs, restraints, or confinement;
• Emotional/Psychological Abuses:  With emotional or psychological senior abuse, people speak to or treat elderly persons in ways that cause emotional pain or distress. Verbal forms of abuse may include intimidation through yelling or threats, humiliation and ridicule.  Nonverbal forms of abuse are ignoring the elderly person, isolating him or her from friends or other family members and activities;
• Caregiver Neglect or Abandonment:  Elder neglect or failure to fulfill a caretaking obligation constitutes more than half of all reported cases of elder abuse.  It can be intentional or unintentional, based on factors such as ignorance or denial that an elderly patient needs as much care as he or she does;
• Financial Exploitation:  Financial exploitation involves the unauthorized use of an elderly person’s funds or property, either by a caregiver or the elder care facility itself. For example, an unscrupulous caregiver might misuse patient’s checks, credit card or bank accounts or trick the person into investing in a phony investment scheme; and
• Healthcare Fraud and Abuse:  Examples of healthcare fraud and abuse include charging for healthcare which has not been provided, overcharging or double billing for services, getting kickbacks for referrals or for prescribing certain drugs, over or under medicating, recommending fraudulent remedies for illnesses, or Medicaid fraud.  Please see our blog posts regarding Qui-Tam actions for healthcare fraud.

Signs And Symptoms Of Elder Abuse

Symptoms of elder abuse are often not recognized or taken seriously because they may appear to be signs of dementia or the elderly person’s frailty. Often caregivers may explain them away as nothing more than “signs of getting old”.  That doesn’t mean that you should dismiss them because the caregiver says so. While one sign may not signal abuse, watch for a number of signs. Here are some general warning signals to look out for if you suspect elderly abuse:

• Frequent arguments between the caregiver and the elderly person;
• Drug overdose emergency or apparent failure to take medication regularly;
• Unexplained bruises, pressure marks, broken bones, abrasions, or burns;
• Broken eyeglasses or frames;
• Unexplained withdrawal from normal activities, a sudden change in alertness, unusual depression;
• Sudden changes in financial situation;
• Bedsores, unattended medical needs, poor hygiene, and unusual weight loss;
• Behavior on the part of the caretaker such as belittling and threats;
• Caregiver’s refusal to allow you to see elderly person alone;
• Unsuitable clothing or covering for the weather;
• Unsafe living conditions, such as no heat or running water; faulty electrical wiring, other fire hazards;
• Desertion of the elder at a public place;
• Significant withdrawals from the elder’s bank or investment accounts;
• Items or cash missing from the senior’s household;
• Financial activity the senior couldn’t have done, such as an ATM withdrawal when the account holder is bedridden;
• Evidence of overmedication; and
• Inadequate responses from caregiver to questions about care.

The most important thing is to be alert.  If you notice changes in personality or behavior, you should start to question what is going on and contact us to aid you in your investigation.

Can A family Member File A Lawsuit Against A Nursing Home?

Yes, and there are a number of legal theories that a family member can use to support a lawsuit against a nursing home.  For example, assault, personal injury, pain and suffering, mental anguish, neglect, failure to provide adequate care, breach of contract, fraud, financial irregularities, or failure to comply with state nursing home statutes.

Lawsuits can result from a wide variety of situations:  physical violence, abuse, or neglect; emotional violence, abuse, or neglect; or financial abuses. If the nursing home resident is struck, beaten, pushed, restrained unnecessarily, over or under-medicated; left unattended; deprived of food or water; or otherwise physically mistreated or neglected, there may be grounds for a lawsuit.  Emotional abuse can also give rise to lawsuits.  For example, if the staff members are angry and yell at the resident or isolate, humiliate, or shame him or her.

Financial abuse, such as misappropriating funds, stealing from the resident, or overcharging can also be a basis for a lawsuit. The nursing home might be liable if it promised to provide accommodations or services it knew it could not provide or did not provide.

Nursing homes that mistreat residents can be liable not only for the amount of actual damages suffered by the resident, but for punitive damages as well.  In fact, there have been jury verdicts against nursing homes awarding compensatory and punitive damages in the tens of millions of dollars.

What To Do If You Suspect Abuse

If you suspect elder abuse at a nursing home facility and/or hospital geriatric ward, you or a loved one might have a claim.  As such, please contact us soon as possible to discuss your legal options. You will have a limited time to file a lawsuit, so the sooner you seek our advice the better.

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The Food and Drug Administration (“FDA”) has warned three large manufacturers to stop marketing ear candles and has posted a consumer warning on its web site.  The warning page states that during the past decade, the FDA has received reports of burns, punctured eardrums, and blockage of the ear canal that required outpatient surgery.

An ear candle is a hollow cone about 10 inches long made from a fabric tube soaked in beeswax, paraffin, or a mixture of the two.  In ear candling, also called ear coning or thermal auricular therapy, a patient lies on his or her side while a candle is placed in the outer ear and lit.  Marketers claim that warmth created by the device produces suction that draws wax and other impurities out of the ear canal.  However, tests by Health Canada found that ear candles produce no measurable effect in the ear and have no therapeutic value.

“Some ear candles are offered as products that purify the blood, strengthen the brain, or even 'cure' cancer," says Eric Mann, M.D., Ph.D., clinical deputy director of the FDA's Division of Ophthalmic, Neurological, and Ear, Nose, and Throat Devices. But the FDA warns that ear candles can cause serious injuries, even when used in accordance to manufacturers' directions.  "Also," says Mann, "FDA believes that there is no valid scientific evidence for any medical benefit from their use."

The FDA says that ear candling -- the procedure is also called "ear coning" and "thermal auricular therapy" -- exposes the recipient to risks such as:

• starting a fire;
• burns to the face, ear canal, eardrum, and middle ear;
• injury to the ear from dripping wax;
• ears plugged by candle wax;
• bleeding;
• puncture of the eardrum; and
• delay in seeking needed medical care for underlying conditions such as sinus and ear infections, hearing loss, cancer, and temporomandibular joint (TMJ) disorders. (TMJ disorders often cause headache and painful sensations in the area of the ear, jaw, and face).

Over the past decade, FDA has received reports of burns, punctured eardrums, and blockage of the ear canal which required outpatient surgery from the use of ear candles.  And in a survey published in 1996, the medical journal Laryngoscope reported 13 cases of burns of the ear, seven cases of ear canal blockage due to wax, and one case of a punctured eardrum.

If you or someone you know purchased and used ear candles and have been injured as a result, please contact us to discuss your legal options.

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A Birmingham-area man won a $25.16 million verdict this month against Switzerland-based Roche Holding AG ("Roche") after claiming its acne medicine led to inflammatory bowel disease.  Andrew McCarrell, 38, won the verdict against Roche after a retrial in state court in New Jersey, where a company unit that produced the drug Accutane is based.

McCarrell is a computer technician who has lived in the Birmingham area 13 to 15 years.  He testified he got sick after taking Accutane in 1995.  He needed five surgeries, including one to remove his colon.

"I never thought it would be like this," McCarrell said. "Never in my wildest dreams."

Six former Accutane users have now won verdicts worth $56 million.  All claimed Roche failed to warn of the drug's risks.  Roche stopped selling Accutane last year, citing competition from generic formulations and legal costs from defending personal injury suits.  Roche faces almost 1,000 other cases.

McCarrell had played small-college football in the Midwest and "was a vibrant healthy guy until he started taking this drug," said his lawyer. "A year after he started taking it, he had his colon removed."  McCarrell goes to the bathroom 10 to 20 times a day and "suffers from massive gastrointestinal upset," his lawyer said. "Imagine going though that every day.  He and his wife are living day by day."

The lawsuit alleged that Roche had internal documents that said Accutane caused inflammatory bowel disease and did not tell anyone.  Indeed, some patients who were prescribed Accutane have allegedly suffered such severe injuries as a result.  While Accutane is still on the market, it is the focus of lawsuits nationwide.

If you or someone you know were prescribed Accutane and have suffered serious injuries as a result, please contact us to discuss your legal options.

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When a medical provider in New York State -- a hospital, doctor, clinic, pharmacy or medical supply company -- commits fraud against New York State, everyone pays.  You, as a taxpayer, end up picking up the state's losses through an increase in your state and local taxes.  But individuals who know of fraud being committed against New York State and/or New York City can put a stop to it by becoming whistleblowers.

Under New York State’s (and New York City’s) whistleblower law known as the False Claims Act (“FCA”), a whistleblower can bring a "Qui Tam" lawsuit against companies and individuals that are cheating New York State and/or New York City.   A Qui Tam lawsuit is an action filed by an individual on behalf of the state and/or city under the FCA.

In the face of widespread fraud and in an effort to strengthen New York State’s efforts to fight Medicaid fraud, which is driving up spending and taxes at the state and local levels, Senate Republican Leader Dean Skelos announced the creation of the Senate Republican Task Force on Medicaid Fraud.  “There is no excuse for tolerating any fraud in a program that is the fastest-growing and largest single component of state and county budgets,” said Senator Skelos.  “Medicaid fraud drives up state spending and taxes as well as local property taxes.  We must fight fraud aggressively, restore accountability and integrity to the Medicaid program, and ensure that tax dollars are spent wisely to help the people who really need help, not enrich criminals who prey on the system.”

“Medicaid fraud is possibly costing New York State taxpayers billions of dollars.  It’s crucial that we act immediately to prevent this type of fraud at the state and local levels,” said Senator Kemp Hannon.  “During a time when every single cent counts, we cannot afford to let the possibility of this amount of money fall through the cracks of the system through fraud and abuse.”

Indeed, whistleblowers are rewarded a significant portion of the proceeds collected on behalf of New York State or New York City.  In fact, whistleblowers are entitled to collect at a minimum 15% to 30% of the total amount of the fraudulent money recovered, and many whistleblowers have collected millions of dollars.

The widespread problem of Medicaid fraud has been highlighted by several reports issued by the state Comptroller’s office that documented millions of dollars in Medicaid overpayments and billing errors. Chemung County Executive Thomas J. Santulli, President of the New York Association of Counties, said, “Recently, New York City and forty-two New York Counties obtained a victory in federal court against 13 pharmaceutical manufacturers for fraudulent pricing through the Medicaid Program. These types of actions continue to demonstrate the relevance and importance of county governments insuring the integrity of the Medicaid Program in New York.” Moreover, in December, the state Comptroller released the results of an audit that identified as much as $92 million in Medicaid overpayments, billing errors and other problems.

If you are aware of Medicaid and/or Medicare fraud being committed against New York State and/or New York city by a doctor, hospital, clinic, pharmacy and/or medical supply company, you may be entitled to a multi-million dollar award.  You can help hardworking New York taxpayers from being cheated -- and earn millions of dollars in the process -- by blowing the whistle on Medicaid and Medicare fraud.

If you know or suspect that Medicaid and/or Medicare fraud is being committed in New York, please contact us to discuss your legal options.

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The continuing dangers posed to infants by certain products has been highlighted by the recall announced this month by the U.S. Consumer Product Safety Commission (“CPSC”) of approximately 635,000 cribs manufactured by Dorel Asia SRL of Barbados.  The recall was announced after the reported death of a 6 month old child who became entrapped and strangled in a Dorel crib after the drop side hardware broke.  The drop side hardware on the cribs can fail causing the drop side to detach from the crib creating a space in which an infant can become entrapped and suffocate or strangle.  This, as well as bruising and lacerations, may also occur if one of the slats is damaged.

Moreover, thirty six incidents of slat breakage have been reported. The drop side hardware failure or slat damage may occur while the crib is in use, in storage, being assembled, taken apart or reassembled or during shipping and handling.  The Dorel cribs were sold at Kmart, Sears and Wal-Mart stores nationwide from January 2005 through December 2009.

The CPSC also recently announced the recall of about 1.5 million strollers manufactured by Graco Children’s Products, Inc. of Atlanta, Georgia, between October 2004 and February 2008, due to fingertip amputation and laceration hazards.  There have been seven reports of children placing their fingers in the stroller's plastic, jointed canopy hinge mechanism while the canopy was being opened or closed, resulting in five fingertip amputations and two fingertip lacerations.  The recalled strollers were sold at AAFES, Burlington Coat Factory, Babies “R” Us, Toys “R” Us, Kmart, Fred Meyer, Meijers, Navy Exchange, Sears, Target, Wal-Mart and other retailers nationwide from October 2004 to December 2009.

If any infants or children you know have been injured by these products please contact us to discuss your legal options.

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A few months ago we published a blog post about employees who are paid by the hour -- particularly low wage workers -- and who are often cheated by their employers.  We pointed out that hourly workers are routinely denied proper overtime pay and are often paid less than minimum wage according to a newly released study based on a survey of workers in New York, Los Angeles and Chicago.

But what about workers who are not being paid their tips, even though their employers are charging customers a mandatory gratuity for various services?  Unfortunately, many employees do not realize that they are entitled to receive all, or a significant portion, of gratuities charged by employers to their customers.

Indeed, there are millions of workers in the USA that rely on tips for most of their income, and there are well over two million businesses that rely on tipped employees.  According to recent statistics from the U.S. Department of Labor, food and beverage service-related workers held 6.5 million jobs in 2000 alone.  The U.S. Department of Labor estimates in a 2001 study that tips and gratuities may account for well over $5 billion per year being left on plates and tip trays and financed on credit cards.

But let's face facts.  Relying on customers' tips for your income is tough.  The average customer doesn't realize how difficult and hard the average waiter, waitress, hair dresser, concierge, cab driver, maitre de or bartender works for their money.  Dealing with and satisfying the general public is one of the most demanding jobs around.  Many, if not most, tipped employees have a tough time making ends meet.

So if your employer is withholding gratuities that you’ve earned, you may have a case under The Fair Labor Standards Act ("FLSA").  The Act mandates that gratuities earned by an employee but collected by an employer must be turned over to the hard working employee whom earned it.  If your employer is not doing so, you may have a basis to file a class action suit to recoup the tips earned by you and all other workers at your work site.  Employers who do not manage and properly account for the gratuities earned by their employees and who do not properly pay their employees tips that they have collected on behalf of their workers may in fact be violating the law.

If you believe that your employer is withholding gratuities that you’ve earned, please contact us to discuss your legal options.

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