Cape Cod Barrister

Reverse Mortgage Abuses

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

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Wellfleet Town Meeting/OCHS and Article 14

A number of pressing cases descending upon me simultaneously have kept me off the blog board for a bit.  However, a quick note about a matter I consider extremely  important.

When I became VP of Outer Cape Health, I established a number of personal goals for myself that related to the organization. One was to  advance the goal of constructing a new community health center in Wellfleet. There had been much discussion in the past, but not much had happened. It goes without saying that the staff of OCHS and the patient population that is served deserve a better facility.

I believe that Article 14 is a first step, but a significant step, towards the goal of a new, state of the art facility in Wellfleet. In summary, it enables the Board of Selectmen to convey a 9 acre parcel contiguous with the Senior Center to a non profit corporation providing "health services"  to the community on terms and conditions determined by the Board of Selectmen.  Working cooperatively with the Board of Selectmen and town counsel, the language was drafted carefully to provide flexibility to the parties going forward in negotiations. 

Wellfleet Preservation Hall provides an example of the good that can be accomplished when town government works in concert with the private sector to fulfill an important  community need. Expansion of OCHS is a priority of the Board of selectmen referenced in the towns' long term comprehensive plan. Article 14 is an important step in this process and I hope it will be enthusiastically supported on October 26th.  

Bruce A. Bierhans

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Tort Reform Part I/ General Comments

I've stated before on this blog that the words "tort reform" are another way to say "deprivation of victims rights." The answer for most alleged advocates of such reform generally involves caps on damages or loss of the right of trial by jury.

Throughout my career, unlike many plaintiffs' attorneys, I have tried cases in many areas of the law. I have tried criminal cases, tort cases, and business cases. I believe strongly in the element of our system that mandates "accountability". If you commit a crime and are found guilty; you should be held accountable.  If you are negligent and cause harm, you should be held accountable to the injured victim and compensate them fairly for their loss. Our civil trial system is based upon these principles of accountability and fair compensation and applies across the board to all; including lawyers, physicians and other professionals. Without rules and accountability, you have lack of structure, confusion and chaos.   This applies to government and the law, as well as to many other aspects of our lives.

Is our system perfect? Of course not. I do believe that some changes can be made in certain areas of the law that do not deprive victims of their rights, but create efficiencies in process or that provide for various forms of dispute resolution in an attempt to resolve disputes in advance of trial. I will address some of these measures in future posts. I would point out that I am not a philosopher, nor am I someone that spouts statistics to prove a point. This is the law where everything is grey, as compared to the black and white of baseball, where a .300 batting average is generally a good indication that a player is above average. My comments in the past, and those on this topic, are simply the product of a lawyer that has spent almost 30 years in the pits and observes the system on a daily basis.

Bruce A.  Bierhans

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Blog Topics for the Coming Weeks/ Your Ideas?

While reading the Sunday AM papers and blogs, I started thinking about timely legal and newsworthy topics to cover in coming weeks.

One article discussed how our economy has changed for years to come, along with our own attitudes towards debt, financial planning and other economic/lifestyle issues. Topics I have covered in the past, including the fiduciary responsibilities of your financial advisers, elder financial fraud and  mortgage modification certainly warrant further exploration.

Clearly, healthcare is the topic of the moment. As someone that has litigated many medical negligence cases, but has also lectured nationally to physicians on litigation related issues, I am very familiar with many of the arguments on both sides; particularly those related to  malpractice reform. In addition, the work I have done on behalf of OCHS helps give me additional insight into this complex and controversial topic.

Along with changes in our economy come changes in business, as well as job movement on the part of employees. I will continue to attempt to cover issues related to business survival tactics, as well as employer/employee issues.

When individuals suffer a personal injury as the result of negligence, they are often confronted by an insurance industry that has the deck stacked in its' favor. I will continue to educate consumers about their basic rights when they are accident victims.

Of course, as always, new topics will presnt opportunities for discussion. There is always a new scammer on the horizon waiting to take advantage of the uninformed, uneducated, elderly or gullible victim. I'll be watching for those new scams of the day.

If any readers have any topics they would like me to cover, feel free to weigh in.

Bruce A. Bierhans

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Another Pharma settlement/ Pfizer and Bextra

Today, the New York Times reported on Pfizer's $2.3 billion settlement payout over allegations that it conducted illegal marketing of Bextra, a painkiller that was taken off the market in 2005. This settlement is the largest health care fraud and criminal fine payout to date.

Since 2002, Pfizer has paid out settlements four times over allegations of illegal marketing activities. A large factor contributing to the high amount of this settlement figure was Pfizer's repeated misconduct over the years. Despite the fact that this may be the largest settlement sum of its kind, the $2.3 billion amount equals less than three weeks of Pfizer sales. This prompts one to wonder whether such a high amount targeted at addressing Pfizer's recidivism will actually have any effect whatsoever on Pfizer's behavior in the future.

John Kopchinski was the former Pfizer sales representative who initiated the complaint that prompted the government to investigate allegations surrounding Bextra.

"The whole culture of Pfizer is driven by sales, and if you didn't sell drugs illegally, you were not seen as a team player," said Mr. Kopchinski, whose personal share of the Pfizer settlement is expected to exceed $50 million. Mr. Kopchinski left Pfizer in 2003.

Bextra, approved by the FDA in 2001 to treat arthritis and menstrual cramps, was marketed by Pfizer for the treatment of acute pain. This, despite the fact that it wasn't proved to be any more powerful than Ibuprofen and the side effects with increased doses were great. Pfizer urged its sales representatives to tell doctors to use Bextra to treat acute pain and surgical pain at high doses that were not FDA approved. Pfizer held weekend getaways to resort locations for doctors to promote their drugs, paying all the attendees' expenses.

Bruce Bierhans

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