Cape Cod Personal Injury Lawyer - Miscellaneous

Reverse Mortgage Abuses

Bruce Bierhans — Fri, 09 Oct 2009 16:39:13 GMT

What a surprise! An article in todays SanFran Chronicle reports that reverse mortgages have "the potential to spawn another subprime-style financial crisis." This, according to a report released by the National Consumer Law Center in Boston.

The report discusses "aggressive marketing tactics" that pressure elders to use RM loan proceeds to purchase other potentially inappropriate financial products, such as annuities, and even things such as luxury items.

A reverse mortgage permit homeowners over 62 to receive a lump sum, periodic payments or credit line checks. The borrower doesn't make mortgage payments, but interest and fees accumulate over the life of the loan and the loan must be paid when the borrower dies, sells or leaves the home for more than one year. The interest compounding feature can be quite a problem. The article discusses the story of one woman that learned, when she went to refinance her home, that she owed over $600k on a home that was worth only $120k. She had only received $120k in payments on the loan.

The state of California has legislation pending that would establish a suitability checklist for reverse mortgages. The NCLC report recommends that anyone that arranges a RM establish that they are acting in the best interest of the senior.

As in all matters, you are your own best guardian. Of course, a responsible attorney can guide you through the decision making process. Borrowers beware!

Bruce A. Bierhans

Originally posted at InjuryBoard by Bruce Bierhans

Our Wii Donation: A New Twist in Wellfleet

Bruce Bierhans — Wed, 19 Aug 2009 20:59:16 GMT

Our lawfirm was thrilled to have recently donated a Wii gaming device to the Council on Aging and Senior Center in my own beloved community of Wellfleet, Massachusetts.

While many contributing firms have donated the devices to rehab facilities and hospitals, I was encouraged to find out how much use these devices could have in "wellness" programs at a local senior center. Our SC director, Suzanne Grout-Thomas informed me that she could use the device in interactive fitness programs, dance and interactive fitness games.

Our SC is the first on the Outer Cape to have the use of the device and we know it will be put to great use.

Bruce A. Bierhans

Originally posted at InjuryBoard by Bruce Bierhans

Independant Contractor or Employee? The Strippers Ruling

Bruce Bierhans — Wed, 19 Aug 2009 20:45:35 GMT

The last time you went to an "adult entertainment" venue (no one reading this blog, I'm sure), did you think the "dancers" were independant contractors or employees of the venue. What...you weren't thinking about that? Well...if you're an employer, you'd better start thinking about it.

On August 6, a Superior Court Justice ruled that 70 exotic dancers were employees and not independant contractors, and further ruled that the employer violated the Massachusetts Employee Classification Law by misclassifying the stripper/employees. The dancers, employed at King Arthurs Lounge alleged they were "service employees" entitled to earn wages and keep their tips. The employer argued that the dancers only provided an "independant service" that was not an essential part of the business. The judge said that this was a "thinly veiled" argument (yes; he used that language) and that the dancers provided a service "integral" to the conduct of the business.

Of course, the employer will appeal. However, the law itself does contain a relatively stringent three part test. If the employer fails to meet even one part of the test, the worker will be considered an employee; not an IC:

a) The worker must be free from the employers presumed control and direction in performing the service;

b) The service must be "outside" the employers usual course of business, and;

c) The worker must be customarily engaged in an independant trade, occupation, profession or business of the same type.

The statute, M.G.L ch 149, Sec.148B provides for both civil and criminal penalties.

Every employer that uses Independant Contractors MUST review their relationships with staff to insure that they are not violating the law. Failure to do so may result in you being "stripped" of some significant cash.

Bruce A. Bierhans

Originally posted at InjuryBoard by Bruce Bierhans

High-tech MRIs - Helpful or Unnecessary?

Carrie Strasser — Tue, 18 Aug 2009 11:46:37 GMT

Last week, Time magazine reported that women who are diagnosed with early-stage breast cancer and who rely on results from high-tech MRIs, usually choose more aggressive and sometimes unnecessary treatment plans.

But that may not be such a good idea, say researchers in a commentary appearing in CA: A Cancer Journal for Clinicians, a publication of the American Cancer Society. The authors looked at studies pitting preoperative use of MRI, which relies on magnetic waves, against mammograms and similar tests that use radiation to take pictures of breast tissue. Researchers found that women choosing MRIs often ended up with more aggressive surgery — much of which wasn't necessary — than women who did not use the scans. What's more, employing the newer and more sensitive MRI technology did not improve a woman's chance of surviving cancer or her chances of avoiding a recurrence of tumors.

Women who had the MRIs usually chose more aggressive surgery because the MRI scans pick up more cancer lesions than mammograms.

However, doctors question whether these lesions are more bark than bite. In women with early-stage breast cancer, the chance of recurrence ranges from about 5% to 10% in the ten years following the first diagnosis. Multiple studies over the past 30 years have shown that a lumpectomy followed by radiation therapy provides women with the same survival and recurrence rates as a mastectomy. After a lumpectomy, a patient may still have cancer in the breast but radiation usually destroys the remaining disease.

MRIs, or magnetic resonance imaging scans, are sensitive enough to detect small tumors and other abnormalities that mammograms might miss. This leads to increased anxiety in patients and causes them to pursue more aggressive treatments than might be necessary. Dr. Larry Norton of Sloan Kettering Cancer Center in New York City explained that while a lumpectomy may leave small cancers around the surgery site, the radiation that follows will most likely destroy it. If you don't have the radiation treatment, Dr. Norton explains, then you are much more likely to get a recurrence in the same location.

For more information on breast MRIs, click here.

For general information on MRIs, click here.

Originally posted at InjuryBoard by Carrie Strasser

Cape Innovations in Alternative Fuel Research

Kwon Faith — Wed, 05 Aug 2009 11:00:21 GMT

The Cape Cod Times reported recently that “Dealing with the Cape’s pond scum could prove to be a financial windfall.” Yes, algae-based biodiesel is being explored as the next big alternative to fossil fuels, right here on the Cape.

A Wellfleet based alternative-energy company called Plankton Power has begun collaboration with the military, government, oil industry and research organizations to initiate construction and production of an algae farm and biorefinery on the Massachusetts Military Reservation.

It was reported that the seaweed and algae we see floating around the waters have a much higher purpose than just annoying swimmers, boaters and fishermen. Algae converts into a biodiesel with a composition nearly identical to that of petroleum diesel, but is more efficient, produces lower emissions, degrades quickly and is not hazardous if it comes in contact with your skin. It is even purported to perform better than traditional diesel, especially in lower temperatures.

While it does cost more to convert algae into biodiesel, the production rate is higher than even soybean or canola (three weeks as opposed to six months). The hurdle they face now is proving this method will be cost effective.

Efforts in the area of algae-based biodiesel research are already in progress in, of all places, Iowa, and Exxon Mobil is even investigating the economic aspects of algae biodiesel.

With all the attention alternative energy sources have garnered lately, this is one method that has yet to be fully explored, and still another step in reducing the United States’ dependence on foreign resources.

Originally posted at InjuryBoard by Kwon Faith

One Step Closer Towards Greater Food Safety

Carrie Strasser — Fri, 31 Jul 2009 09:58:34 GMT

The New York Times reported that on Thursday, the House passed legislation to require more frequent inspections of food processing plants and to grant the government the authority to actually order that tainted foods be recalled.

This will allow the Senate to consider the legislation in the fall. While the legislation was supported by a vast majority of Democrats, the Republicans were split with many fearing that the new rules would add greater burdens on farmers.

The legislation seeks to remedy problems in the food safety system that have been discussed for decades. Its chief sponsor, Representative John D. Dingell, Democrat of Michigan, said it would “fundamentally change the way in which we ensure the safety of our food supply.”

The measure would require the Food and Drug Administration to conduct inspections every 6 to 12 months at food processing plants that it deems high-risk. These could include plants that have experienced food safety problems in the past or that handle products that spoil easily, like seafood.

Other processing plants that deal with lower-risk food items would need to be inspected at least once every three years. Supporters of the new legislation argue that the current system allows some facilities to go for 10 years or more without an F.D.A. inspection.

This new system will be funded by a yearly fee of $500.00 paid by the food processing plants. For larger companies with multiple plants, there will be a cap of $175,000.00. This fee would cover approximately 40% of the F.D.A.'s costs to implement the increased inspections.

Another significant part of this legislation is the power it grants the F.D.A. to order recalls of tainted food, since under the current system, it can only ask companies to recall such foods. Additionally, there will be increased inspection requirements on imported foods and a system whereby the F.D.A. will better be able to trace food products and ingredients to identify the source of food-borne illnesses.

Originally posted at InjuryBoard by Carrie Strasser

An Employee Manual May be an "Implied Contract"

Bruce Bierhans — Tue, 14 Jul 2009 13:23:13 GMT

For years, I have advised my business clients to be extraordinarily careful in drafting Employee Manuals because they could be considered "contracts"; essentially turning an at-will employee into a contract employee. This is crucial because in Massachusetts, an at will employee can be terminated for any reason, as long as the reason is not discriminatory or in violation of public policy. However, a contract employee can only be terminated by adhering to the provisions of the contract or employment agreement.

This week, Massachusetts Lawyers Weekly has reported that the District Court/BMC Appellate Division has ruled that an employer that terminated an employee without providing a warning or suspension called for in its personnel manual violated an "implied" employment contract. The name of the case is Buttrick v. Intercity Alarms, LLC.

Plaintiff Buttrick was employed by Intercity, which had a 47 page "Employee Reference Manual." The manual contained a disciplinary policy which provided for a suspension or warning before disciplinary action would be taken. There was no provision for termination. When the employee was fired, he alleged that he was not suspended or given a warning as per the manual. A jury found for the employee and awarded $41,888.00 in damages. The employer appealed. The court ruled that there was sufficient evidence to support the jury finding that there was an "implied contract.

From my perspective this is nothing new, and is merely a followup to a Mass. Supreme Judicial Court decision from 1996 (O,Brien v. NE Tel). However, it is another reminder to both employers and employees that they need to exercise caution both in preparing the manuals (and consulting with your attorney) if an employer; and reviewing the manuals carefully if an employee so that you are aware of your rights.

Bruce A. Bierhans

Originally posted at InjuryBoard by Bruce Bierhans

Medical Identity Theft - You May Already Be a Victim

Carrie Strasser — Tue, 16 Jun 2009 10:11:10 GMT

On Saturday, the New York Times reported on a rapidly-growing form of fraud known as medical identity theft. In 2007, federal data was collected on medical identity theft and reported that over 250,000 Americans a year were affected by the crime. Pam Dixon, executive director of the nonprofit World Privacy Forum, explained that the number of people whose medical identity is stolen has increased in the past 2 years with the more prevalent use of electronic medical records.

Medical identity theft comes in many forms. In some cases, thieves can steal someone's name and Social Security number and use that information to obtain emergency medical services. Another way this crime works is when someone takes your insurance information and uses it to obtain anything from routine examinations to major surgery. This is alarmingly easy because many medical providers do not ask for any other identification beyond your insurance information.

Another way your information is stolen is when someone working at a medical office downloads your personal information and then sells it or uses it themselves.

In a widely reported case in 2006, a clerk at a Cleveland Clinic branch office in Weston, Fla., downloaded the records of more than 1,100 Medicare patients and gave the information to her cousin, who in turn, made $2.8 million in bogus claims.

What makes medical identity theft even worse than regular identity theft is that with medical identity theft, there are none of the normal consumer protections that are in existence for victims of regular identity theft. Fraudulent charges can go unnoticed by a consumer and remain unpaid for years, causing permanent damage to your credit. With medical identity theft, even when you correct the problem with one of your medical providers, the fraud may have been passed on to multiple providers and will most likely have to be resolved on a case-by-case basis.

Certain medical providers have taken preliminary steps to install safeguards in the system, but with the new push to make all medical records electronic, advocates worry that these safeguards do not go far enough.

Originally posted at InjuryBoard by Carrie Strasser

With Food Safety, it Seems There are No Guarantees

Carrie Strasser — Fri, 15 May 2009 10:17:19 GMT

Today the New York Times reported that certain processed food manufacturers are unable to guarantee the safety of ingredients used in their products. In 2007, when approximately 15,000 people were afflicted with salmonella by frozen pot pies, inspectors could not determine which ingredient was contaminated. This led ConAgra Foods, the pot pie maker, to put the responsibility on the consumer through food safety directions that instruct the preparer to use a food thermometer to ensure the center of the pie reaches 165 degrees Fahrenheit. Some companies do not even know where their ingredients are coming from and if the companies supplying the ingredients are testing for potential contamination.

Yet the supply chain for ingredients in processed foods — from flavorings to flour to fruits and vegetables — is becoming more complex and global as the drive to keep food costs down intensifies. As a result, almost every element, not just red meat and poultry, is now a potential carrier of pathogens, government and industry officials concede.

In addition, companies, like General Mills, are advising consumers to use only conventional ovens when cooking their frozen products. Federal regulators have urged companies to provide "detailed food safety guides" with their cooking instructions.

However, some food safety experts do not believe consumers should be ultimately responsible for preventing food-borne illnesses.

Dr. Michael T. Osterholm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota, said companies like ConAgra were asking too much. “I do not believe that it is fair to put this responsibility on the back of the consumer, when there is substantial confusion about what it means to prepare that product,” Dr. Osterholm said.

In an effort to cut costs, food companies have subcontracted processing work by having smaller companies prepare certain flavor mixes and dough that the larger manufacturer then assembles. This has made it more difficult to trace back where ingredients have come from and where the possible contaminations may have started. For example, with the outbreak of salmonella from ConAgra pot pies, health officials were never able to pinpoint the source of the outbreak. But, investigators sent to the ConAgra plant focused on vegetables because ConAgra had received vegetable shipments from Latin America without testing them for pathogens or requiring their supplier to test them.

Since then, ConAgra has revamped their safety standards and now tests for microbes in all of the pot pie ingredients. In addition, ConAgra's pot pies (sold under the Banquet name) have very explicit food safety and preparation instructions.

But, attempts made to get the pot pies to the requisite 165 degrees were not easy. Many parts of the insides of the pie only heated to 140 degrees while portions of the crust were burning.

Other frozen food companies are also taking steps to increase food safety. Amy's Kitchen precooks its ingredients in an attempt to kill pathogens.

The food supply and distribution chains have become such a vast, global effort that it seems unbelievable that there are not more outbreaks around the world. Because these corporate giants cannot guarantee contamination-free ingredients, it is imperative that you as the consumer take responsibility for your own safety. Read the cooking instructions carefully. Understand the wattage of your microwave and when you can, use your conventional oven to cook these products.

Originally posted at InjuryBoard by Carrie Strasser

Hemophilia and AIDS: William Modestino, Jr. Tribute to a Son

Bruce Bierhans — Fri, 08 May 2009 14:16:58 GMT

As I read the corporate blather this month about "tort reform", I am reminded of a case I tried in May and June of 2001. It was about Bill Modestino, Jr. a courageous young man and hemophiliac that died from AIDS after being infected with tainted clotting concentrate. It was the most difficult, but rewarding case I have ever tried.

As a tribute to Bill and his parents, Bill and Brenda Modestino, I thought readers would enjoy reading a story about the case that was published in Lawyers Weekly in 2001, after the verdict. It's also a tribute to all parents that have lost children.

Attorney Bruce A. Bierhans looked across his desk at Bill Modestino and his wife, Brenda. Their son's short life had been filled with illness - first, severe hemophilia, and then the devastating AIDS virus that killed him in 1993.

But Bierhans had to be honest."You're never going to get an expert witness to testify against the doctors. I can't help you," he apologized.

The Modestinos had come to Bierhans' office in search of an attorney to help them sue the doctors who had treated their son Bill Jr. for his hemophilia in the 1980s.

They claimed that these doctors knew about the AIDS virus and its potential to be transmitted through the blood products used by hemophiliacs like their son. But instead of warning the Modestinos about the danger, the doctors continued to prescribe infusions of clotting factor for Bill Jr. "These doctors were the safety net. They failed. I want to tell the story," Bill Modestino told Bierhans.

When the couple left his office that afternoon, Bierhans assumed that he would never see them again. He hoped that they would be able to receive some compensation from the blood-products companies that were being sued for products liability in AIDS-tainted blood class actions. Bierhans never expected to be the one who would help them tell their story.

But one year later, Bill Modestino walked back into Bierhans' office. He had found a doctor to testify against the hematologists who had treated his son.

Dr. Ben Dawson, a hematologist at Johns Hopkins Medical Center in Maryland, had been persuaded by the persistent client to testify in the case.

"His affidavits got us over the first medical malpractice hurdle in this case," recalls Bierhans, who agreed to represent the Modestinos after their second visit to his office.

It was a pivotal decision for the lawyer, and the inception of what is believed to be the first medical-malpractice case involving blood tainted with AIDS to go to trial.

The case held remarkable challenges for Bierhans and Stephen J. Delamere, in tracking down expert witnesses, reconstructing the history of a blood supply (and, in some ways, the AIDS virus itself) and overcoming tenuous notions of causation.

And while the Modestinos would not win a money verdict in the case, a jury would make a critical finding of negligence on the part of doctors - a ruling that could pave the way for future trial wins.

Severe Hemophilia

William M. Modestino Jr. was born on Jan. 13, 1961 in Scituate, the fourth child and only son in a close-knit family. Shortly after he was born, doctors told his parents Brenda and Bill Sr. that their new baby was a hemophiliac.

Bill Jr. had been born with the genetic code for Hemophilia B, meaning that he lacked the protein known as Factor IX, which would enable his blood to clot.

Bruises, bumps and stress that would hardly slow a normal child could be life threatening for Bill Jr., and his parents quickly learned that his life could depend on a blood coagulation product known as factor concentrate. In the 1960s and early '70s, the Modestinos would take their son to the hospital for infusions. But eventually they learned to use factor concentrate at home, where his mother or sister - who is a nurse - would infuse him.

Factor concentrate contains the clotting factor that stops bleeding in people without hemophilia. Each vial of factor concentrate contains the coagulating factor from the blood of approximately 20,000 donors.

In 1974, at the age of 13, Bill Jr.'s parents took him to see Dr. Peter H. Levine at New England Medical Center in Boston. A renowned hematologist, Dr. Levine and his team began treating Bill Jr. The Modestinos eventually followed their doctor to Memorial Hospital in Worcester, where he established the New England Comprehensive Hemophilia Treatment Center.

Bill Jr. was treated for his hemophilia at the Worcester clinic until his death in 1993. Soon after Dr. Levine started the clinic, Bill Jr. began seeing Dr. Doreen B. Brettler. The Modestinos were concerned about Bill Jr. seeing anyone other than Dr. Levine, but he assured them that although he had less patient contact, he was still running the clinic, and the doctors there were as qualified as he was.

In the late 1970s, the Modestinos began a home infusion program for Bill Jr., which enabled them to treat his "bleeds" without a trip to the hospital. Bill's doctors encouraged his parents to treat him "early and aggressively" by infusing him with factor concentrate when he had a bleed, or in anticipation of a stressful event like a math exam.

In September of 1982, Bill Jr.'s doctors prescribed a new and more effective factor concentrate, Autoplex, to treat his bleeds. A vial of Autoplex contained the coagulating factor from the blood of approximately 100,000 donors.
Deadly Blood Supply

Unfortunately for Bill Jr., more potent factor concentrate was not the only change to blood products in the United States in the early 1980s. Patients were showing up in hospitals across the country with a terrifying and unknown disorder that shut down their immune systems and made them vulnerable to a host of horrible illnesses.

We now know that these patients, at that time most often homosexual men or IV drug users, were suffering from AIDS. And in the early 1980s, Bill Jr.'s family and lawyer contest, his doctors knew it too.

According to Bierhans, blood products are big business. Families of hemophiliacs spend up to $100,000 a year on factor concentrate. And donors are literally the lifeline of the blood products industry.

Frighteningly, the donors who were targeted well into the 1980s were often homosexual men, IV drug users and prisoners. They were the population most likely to be infected with Hepatitis, and the blood companies wanted their blood because it contained antibodies needed to make hepatitis vaccine.

Advertisements ran in gay men's magazines soliciting blood donors who had had hepatitis. What the ads didn't say was that blood left over after the hepatitis vaccine was created would be added to the blood supply to make factor concentrate.

Remarkably, the vast ocean of blood use to treat hemophiliacs was carelessly being poisoned with hepatitis - or worse.

"Hepatitis was always in the factor," says Bierhans. "Doctors knew for years that factor concentrate carried hepatitis. So if you're treating hemophiliacs and you now know about AIDS, you'd have to say, why couldn't factor concentrate also carry AIDS?" Bierhans argued that Bill Jr.'s doctors should have made the connection, and that they had enough information to make it as early as July 1982.

"A lot of meetings were held nationally with the Center for Disease Control and the National Hemophiliac Foundation, and physicians like Drs. Levine and Brettler attended and read about these meetings," says Bierhans.

The doctors at the Worcester clinic "had more access to knowledge about the AIDS threat to hemophiliacs than other doctors all over the country," Bierhans notes, pointing to CDC meeting minutes with Dr. Levine's name on them.

Safety Net Fails

But, says Bierhans, Bill Jr.'s doctors did not warn him or his family about the threat of AIDS. They did not suggest that he attempt alternatives, such as rest and immobilization, to infusing himself with factor concentrate.

"He could have stayed home. He might not have worked full time. If he had a minor bleed, he might have chosen not to use factor, but to stay home and immobilize the joint to stop the internal bleed rather than injecting himself with something that we now know killed him," says Bierhans, pointing out that the doctors' silence did not give Bill Jr. these choices.

Instead, in 1983, Bill Jr.'s doctor prescribed 20 vials of clotting factor from a lot known as NC9117. His mother infused him with the factor, and as parents of all hemophiliac children do, she logged the date, lot number and number of units in an infusion log book.

This simple entry would prove crucial in a courtroom nearly 20 years later.
'Choice Between Life And Death'

When Bierhans took the Modestinos' case, he focused on an informed consent theory.

"How could infusion with infected factor concentrate have potentially been averted? That is the question I wanted answered in the case," says Bierhans.

The theme of the lawyer's opening statement was that "he had a right to make a choice between life and death. It was his right, not his physician's, to make a choice about whether to use factor concentrate or not," Bierhans recounts.

Bierhans used documents gathered from earlier blood products litigation to support this theory of negligence and medical malpractice by Bill Jr.'s physicians.

"A lot of the information wasn't produced to us by the doctors in discovery, but was available to us through the document depository in the earlier class action," notes Bierhans, referring to the class action brought by hemophiliacs and their families against the blood products manufacturers.

That case settled for more than $1 billion after "60 Minutes" aired a searing expose entitled "Bad Blood," covering what the blood products companies knew about AIDS-tainted blood, and when they knew it.

The Modestino family opted out of that settlement, which would have paid them approximately $100,000. With Bierhans' help, they later settled with the blood products companies for more than three times that amount, and funded their medical-malpractice case with that money.

One of the documents from the blood products litigation ended up being marked as Exhibit 15 in the Modestino case.

It was an excerpt from the MMWR - Morbidity and Mortality Weekly Report - dated July 16, 1982, and was frighteningly prescient.

The document stated that the "CDC recently received reports of three cases of Pneumocystis carinii pneumonia among patients with hemophilia A and without other underlying diseases. Two have died ... all three were heterosexual males: none had a history of intravenous drug abuse. ... The clinical and immunologic features these patients share are strikingly similar to those recently observed among certain individuals from the following groups: homosexual males, heterosexuals who abuse IV drugs, and Haitians who recently entered the United States. Although the cause of the severe immune dysfunction is unknown, the occurrence among the three hemophiliac cases suggests the possible transmission of an agent through blood products."

Bierhans argued that information like this was widely available to hematologists in 1982 and 1983, and that Bill Jr.'s doctors camped on the blood products companies' party line that a hemophiliac's chances of getting AIDS from factor concentrate were a million to one. Unfortunately, they were wrong.

By the time "60 Minutes" aired "Bad Blood," 10,000 hemophiliacs had been infected by AIDS-tainted blood products.

On the program, interviewer Ed Bradley sat with Dr. Don Francis, a world renowned epidemiologist who was heavily featured in Randy Shilt's 1987 bestseller "And The Band Played On: Politics, People and the AIDS Epidemic" as one of the first doctors to sound the alarm about AIDS.

Bradley turned to Francis, and asked him point blank if he thought the blood products companies had murdered 10,000 people. The camera closed in on Francis, who said that yes, they had.

Francis likened infusing with just one lot of factor complex to having sex with 20,000 people - many of whom were donors targeted for their contribution to hepatitis vaccines, meaning that they were often gay men from big cities and IV drug users.

Bierhans knew he needed Francis to testify as an expert in the Modestino case.

A hero to the hemophiliac community, Francis had taken on the blood companies during the '80s, had testified in hundreds of lawsuits, and had been portrayed by Matthew Modine in HBO's version of "And The Band Played On."

But Francis was through testifying in lawsuits. In fact, as Bierhans prepared the Modestino case, "Don was in Thailand with his company VaxGen, doing Phase III clinical trials on what will probably be the world's first HIV vaccine," recalls the lawyer.

Bierhans explains that Francis had stopped testifying in blood-products lawsuits because it had become almost a full-time job for the former CDC epidemiologist.

Fortunately for the Modestinos, Bierhans had a connection to Francis.

"I met Marcus Conant, who was the dermatologist in 'And The Band Played On,' in New York in 1998. He had testified in the products cases, and he agreed to testify as our AIDS expert in the Modestino case," recalls Bierhans, adding that Conant has treated more than 5,000 AIDS patients since he first noticed the new outbreak of Kaposi's sarcoma, a rare cancer, among his gay patients in San Francisco in 1981.

In further meetings in California, Conant told Bierhans, "I think I can get Don." The two doctors were friends, brought together by their work with HIV, and Conant thought Francis would be willing to testify in the first medical-malpractice case involving AIDS-tainted blood.

He was right.

"I flew to San Francisco and had dinner with Don Francis and Marc Conant. I flew back that night with an agreement from Francis to testify in our case, and he did," remembers Bierhans.

Learn As You Go

From what began as an initial client meeting in which Bierhans told the Modestinos that they would never find an expert, the case "took on a life of its own."

"It was like a huge snowball rolling down a hill," says Bierhans, who now had Conant as an AIDS expert, Francis as an epidemiologist, and the head of a hematology clinic at Children's Hospital in Orange County, Calif., Dr. Geni Bennetts, as a hematology expert. Bennetts had taken almost all of her patients off of factor concentrate as soon as she learned of the possible AIDS risk, and had lost only one patient to the disease.

But Bill Modestino Sr. felt that there was another chapter of the story that needed to be told.

"Bill's father's chief complaint was always that the doctors had not treated his son properly once they knew that he was a potential victim of AIDS," says Bierhans.

"I was always more focused on informed consent, but as the case developed, the AIDS treatment aspect of the case became equally important," Bierhans admits.

Bierhans and Delamere found a lab report showing that Bill Jr. had given blood in 1984, which was not tested for HIV until 1987. A blood test for HIV was available in 1985.

Delamere also found a crucial document cataloging Bill Jr.'s CD4, or "helper cell," counts. This report showed that "his CD4 count was 228 in 1986, and in 1989, it had dropped to literally nothing, meaning that he had no helper cells left, no immune system," explains Bierhans.

Even more disturbing was the fact that Bill Jr.'s blood was not tested for two years. No samples were taken in 1987, or 1988.

"His AIDS was neglected for two years, and possibly during the most important years for him, because AZT became available in 1987," notes Bierhans. "He was not even told that he had AIDS until 1988."

Had Bill Jr.'s AIDS been treated aggressively, there is a possibility that he would have lived to receive the "cocktail," a combination of drugs that allows many people with HIV to live healthy lives long past the initial incubation period of 10 years.

"The AIDS treatment aspect of the case really developed while the case was being tried. We had the evidence, but its significance took on meaning as the case was being tried," Bierhans explains, adding that medical science was constantly changing even while the Modestino case was progressing between 1995 and 2001.
Putting The Puzzle Together

Everything was coming together for Bierhans and Delamere. They now had a log proving that Bill Jr. had infused with NC9117 in 1983. They also had a February 1984 letter from the National Hemophilia Foundation, sent to doctors across the country, which stated that NC9117 had been recalled by its maker, Cutter Laboratories, because a donor whose plasma had been used in that lot had developed AIDS.

"We were actually able to match up [one of Bill's] infusions with a lot that was recalled because there was an AIDS victim in the donor pool," Bierhans says. "Bill Jr. was never informed of this recall. His family didn't even know about NC9117 until we made the discovery in this case.

"He died in July of 1993, and infused with NC9117 in July, 1983, exactly 10 years, which was the accepted CDC incubation period for AIDS."

Bierhans knew that it was going to be difficult to prove with medical certainty that NC9117 had been the factor concentrate that killed Bill Jr. A severe hemophiliac who needed large doses of factor concentrate to stop his bleeds, Bill Jr. had infused with many lots in the early 1980s, and any one of them could have contained the HIV bullet that eventually caused his death.

But Bierhans and Delamere now had strong support for the argument that the Modestinos' doctors knew about the AIDS risk in the early 1980s, that they were negligent in failing to warn Bill Jr. of the risk, and that they were negligent in failing to aggressively test him for AIDS or treat him for it.

"Dr. Brettler didn't start Bill Jr. on AZT until 1989. It was licensed in 1987. She tried to use the excuse [at trial] that AZT wasn't used in hemophiliacs then, but she wasn't able to produce any evidence that AZT was used in hemophiliacs any later than it was used in other AIDS patients," says Delamere, noting that he thinks Brettler's weak testimony on this subject led the jury to find her negligent in tracking and treating Bill Jr.'s AIDS.

After listening to Bierhans' stable of world-renowned experts, the Worcester Superior Court jury also found Dr. Brettler negligent in failing to inform the Modestinos about the potential that their son could contract AIDS if he continued to infuse with factor concentrate.

The Modestinos were thrilled. Six years of emotionally and physically exhausting preparation had resulted in a trial that allowed them to tell the story of "the safety net that failed."

"Very often people make the tired remark that the case wasn't about money. This really wasn't about money for the Modestinos. They accomplished exactly what they set out to accomplish," Bierhans smiles, noting that the Modestinos have two grandchildren who are hemophiliacs.

He admits that the six years leading up to trial were difficult and draining for both him and Delamere, as well as the Modestino family.

"There were times when they were close to giving up. But they felt that they owed it to their son to follow this case all the way through," says Bierhans, admitting that the case was also a strain on his small practice.

"We have attempted to run a law practice at the same time we've been doing this, but I'd be lying if I didn't tell you that this took up a substantial portion of the last six years," admits Bierhans.

Although the jury found Dr. Brettler negligent, it could not make the causal connection between her negligence and Bill Jr.'s death.

So the amount of the verdict totaled $0.

But Bierhans dismisses the notion that the case was a "loss."

"The importance is that we got the verdicts on negligence, which is something that had never been decided before," says Bierhans, noting that he was aware all along that proving that Bill Jr. died as a result of the factor concentrate that Dr. Brettler prescribed, or that he would have lived to receive the AIDS cocktail if she had started him on AZT sooner, was close to impossible.

"But even if they couldn't have saved the lives of severe hemophiliac adults like Bill, they could have saved the lives of children," Bierhans adds, noting that he has a similar case close to trial that involves a hemophiliac AIDS patient who was 4 years old at the time that the CDC recommended that children under 4 stop using factor concentrate until it could be treated to kill the AIDS virus (a process that is used now).

Bierhans and Delamere hope that the negligence finding in the Modestino case will open the door for the families of other hemophiliac AIDS patients, and that their hard work and the Modestinos' perseverance will have paid off.

"It was unbelievable when the jury came back and the verdict was read, because I never really thought we'd get there, but we did. Because of the relationship I developed with this incredible family, I'd do it all over again," concludes Bierhans.

In a few months, when Bierhans tackles his second hemophiliac/AIDS case, he will do just that.

Postcript: The second case, involving the death of a teen, settled before trial. Bill and Brenda Modestino have been like family to me throughout the years.

Bruce Bierhans

Originally posted at InjuryBoard by Bruce Bierhans