Accident and Injury Lawyer Blog

The Indiana high court ruled on Monday, agreeing that plaintiff's claim in bike accident case should be dismissed against a local municipality because there is no liability if you get drunk and hit a pothole. I gotta tell you, I'm a personal injury lawyer but I have to agree with that one.

Plaintiff drove rode his bicycle to an Indianapolis bar and hung out long enough to get legally drunk. He drove home on the left side of the street, a violation of Indiana law, a hit a pothole on a downhill slope traveling at least 20 miles an hour. He suffered some injuries and was taken to the hospital, where his BAC was measured at .13.

No, I have no idea why I'm writing about this case. It is probably because I have a pro defense position which allows me to underscore my impartiality. But this was a crazy case.

I'm amazed this guy could find a lawyer to bring his case. I'm also amazed someone would appeal this case. But they did find someone.

You can find the opinion in Komyatti vs. The Consolidated City of Indianapolis-Marion County and Citizens Energy Group here.

A New Jersey state court gave Novartis a defense verdict in a jaw injury lawsuit in this mass tort claim.

The issue in this cases is largely about warnings: what did Novartis have to communicate to doctors about the risks of Zometa with respect to osteonecrosis of the jaw (ONJ). The jury, by a vote of 7-1 vote, said Novartis provided an adequate warning.

No matter how you slice these cases, they are tragedies. The plaintiff in this case was prescribed Zometa to protect her bones after breast cancer. Then, she developed ONJ. Just awful.

Domestic USA has announced the recall of its 9100 Power Awnings, Weatherpro Awnings and Motor Service Kits.

It has been determined that if an important step was bypassed in the installation of the power awnings, it could potential damage the awning's motor. If damage occurs, the awning can unfurl unexpectedly while the coach or vehicle is at rest or in transit.

This recall affects only the power awning products manufactured between February 13, 2013, (306xxxxx serial #) through April 9, 2013 (314XXXXX serial #). 27,098 affected units have been identified. The serial number appears on a label on the right underside of the fabric and on the roller tube. On the power awning field Motor Service Kit, the serial number appears on the end cap of the shipping tube.

End-user consumers who believe they may be affected by this recall can call for specific instructions on how to make the determination or obtain a repair by calling 1-888-943-4905.

Another Toro Recall

The Consumer Product Safety Commission (CPSC) has announced the recall of approximately 3,700 Toro Z Master Riding Mowers (and about 60 in Canada) as the idler pulley can rub against the mower's fuel tank, posing a fire hazard. Toro has received six reports of this incident, though no reports of injuries have been received.

Affected by this recall are the 2013 and 2013 Toro Z Master Commercial 2000 Series ZRT riding mowers. The following models and corresponding serial numbers are included in this recall:

• Model Number 74141 with serial numbers ranging from 312000101 to 312000784 and 313000101 to 313000364
• Model Number 74143 with serial numbers ranging from 312000101 to 312000881 and 313000101 to 313000432
• Model Number 74145 with serial numbers ranging from 312000101 to 312001178 and 313000101 to 313000443

You may remember that Toro recalled approximately 2,600 units in November 2012 for a separate fire potential hazarad.

Plaintiffs – 1, Abbott – 0. The first Humira lawsuit filed against Abbott Laboratories results in a huge win for the good guys.

Big Humira Verdict

This week, a Chicago jury awarded $2,244,063.20 to a man on behalf of his wife. After taking the TNF blocker, Humira, for close to seven months, she began experiencing chest pain and fevers. Undiagnosed for weeks and close to death, she was eventually diagnosed with Humira-induced disseminated histoplasmosis, a severe, life-threatening infection.

Despite the FDA having issued an alert in September 2008 to all manufactures of TNF blockers, including Abbott Laboratories, to provide new information to the medical community about the risks of unrecognized, drug induced histoplasmosis, Abbott failed to do so for 20 months, ten days after the Plaintiff's wife was hospitalized.

There have been reports of serious side effects that have caused problems for Humira users. Humira may increase the risk of nerve damage, cancer, and fungal infections. Plaintiff's Humira lawsuits allege that Humira was negligently developed, produced, and manufactured and, in many states, Abbott is strictly liable for the harms caused. Still, Humira remains very popular.

Not many lawyers have been high on these Humira lawsuits. That could change. Quickly.

If you think you or a loved one has been hurt by Humira, we can give you more information about whether you may have a claim. Call 1-800-553-8082 or click here for a free no obligation Internet consultation.

• Arthritis Drugs Causing Cancer?
• Update for Tumor Necrosis Factor (TNF) Blockers
• Humira and Cancer
• Is Cancer a Remicade Side Effect?

More Potential Issues with the da Vinci Surgical Robot

Intuitive Surgical, maker of the da Vinci surgcal robot, has issued an "urgent medical device notification." They are announcing that certain -09 and -10 versions of the MCS instruments may develop micro-cracks near the distal (scissor) end of the shaft following reprocessing. The micro-cracks may create a pathway for electrosurgical energy to leak to tissue during use and potentially cause internal burns.

The following products are affected:

• Part Number: 420179-09 and -10 Description: 8 mm Monopolar Curved Scissors (Hot Shears)
• Part Number: 400179-09 and -10 Description: 8 mm Monopolar Curved Scissors (Hot Shears)

The company has issued a statement claiming that with more than a million surgeries to date, there has been no confirmed evidence of patient injury attributable to this issue.

Okay, fair enough. But lots of other injuries have been caused by the de Vinci robot and this is just one more example - as if we needed another one - that this product was just not ready for the market.

This is technically not a recall. Someone explain to me why it is not considered a recall? I bet the FDA weighs in or it at some point with a different view.

If you believe that you have been injured during a da Vinci robotic surgery, call us toll-free at 1.800.553.8083, or online.

Learn More About da Vinci Lawsuits

• Da Vinci Robotic Surgery Complications
• da Vinci Surgical Robot Lawsuits
• daVinci Robotic Surgery Claims

Target will recall 148,000 lasagna pans. What could possibly be wrong with a lasagna pan that would lead to a recall? Good question. Apparently, it was discovered that the pans can crack and break pretty easily, creating sharp edges that could cause the user to cut themselves. Not the next great class action lawsuit, to be sure, but certainly not a risk you want in your kitchen. The products were sold at Target stores and online from January 2009 to October 2012.

A widespread air bag recall announced last month affecting 3.3 million Hondas, Toyotas, and Nissans has been broadened to include BMW as well.

BMW has announced that they will recall approximately 42,000 of its 2002-3 3 series models because a passenger side air bag defect could send shards of metal into the passenger compartment. Gee, that sounds pretty unsafe.

Another recall announced, General Motors has announced that it will recall about 43,000 2012-13 vehicles with its eAssis fuel-economy system for a control module problem that could cause engine stalling and trunk fires. The recall covers the 2012-13 Buick LaCrosse and Regal and the 2013 Chevrolet Malibu Eco with eAssist, a mild hybrid setup that stops and starts the engine in an effort to save fuel. There have been two reports of fire to date.

• Toyota Recalls 420,000 Models for Possible Steering Flaw
• Hilander Recall
• Prius Recall
• Toyota Panel Looks at Recalls
• Toyota Tundra Recall
• Highlander/Rav4 Recall
• Toyota Recall: Floor Mats and Pedals
• Toyota Acceleration
• Toyota Sienna Recall

A settlement has been reached in the medical malpractice case against St. Joseph Medical Center and the doctor that allegedly placed unnecessary heart stents in patients between 2007 and 2009. A federal investigation and hospital review found hundreds of cases where stents were placed in patients' arteries that were not medically necessary.

The medical malpractice case began in court in early April and was expected to last about three to six months. But, an attorney for the twenty one Plaintiffs involved in the suit said that a successful resolution has been reached. The details of the settlement have not been disclosed yet.

St. Joseph has had its fair share of trouble. In late 2010, St. Joseph Medical Center agreed to pay the United States $22 million to settle allegations under the False Claims Act that it paid kickbacks and violated the Stark Law when it entered into a professional services contract with MidAtlantic Cardiovascular Associates. The settlement resolved allegations of the payment of kickbacks under the guise of professional services agreements in return for the group's referrals to the medical center. The settlement resolved issues related to 11 professional services agreements which were being investigated for being above fair market value, not commercially reasonable, or for services not rendered.

If you believe that you have a medical malpractice case against St. Joseph Medical Center, contact our medical malpractice lawyers at 1.800.553.8082, or send us a free internet request for consultation.

A Missouri lawsuit has been filed against a hospital and neurosurgeon for allegedly operating on the wrong side of a woman's skull and brain.

Approximately five years ago, after a series of mini-strokes, 53 year old Plaintiff began having health issues. Plaintiff was scheduled for a "left-sided craniotomy bypass" - instead, she received a "right-sided craniotomy surgical procedure." The second, and correct surgery, was performed six days later. The craniotomy bypass surgery was intended to prevent further strokes.

Her speaking ability had previously been affected, but prior to the recent surgeries, her speech was understood by family members. Now, she is unable to speak intelligibly. It is alleged that before the incorrect surgery, Plaintiff was mobile, cognizant, and able to care for herself. She now requires around-the-clock care for her basic needs. Just an awful story.

In 2010, The Journal of Neurosurgery identified 35 documented cases of wrong-side craniotomies in the U.S. from 1966 to 2009. It was concluded that there were probably additional cases that were settled and never brought to the attention of the state medical licensing boards, courts, and news organizations.

The lawsuit, which calls the error, "a surgical mishap," asks for punitive damages, "sufficient to punish" for what it characterizes as, complete indifference to or conscious disregard for the safety of the Plaintiff. The suit alleges that the Plaintiff will continue to suffer from emotional distress, anxiety, disfigurement and depression.

The Missouri Senate is considering a bill that would place a cap on noneconomic damages in future malpractice cases. Unlike Maryland, Missouri currently has no comprehensive cap on medical malpractice awards, as the Missouri Supreme Court struck down the cap as unconstitutional, despite the fact that the court has upheld a noneconomic cap of $350,000 in wrongful death cases.

Caps on noneconomic damages are, in my opinion, the wrong way to go. This case is the poster child for this argument. But I'm not sure punitive damages are necessarily a wise choice here. The doctor screwed up - royally - and his insurance company should be forced to compensate the Plaintiff. But he did not try to hurt her and that, in my opinion, is what punitive damages ought to be for.

Lincoln County, Nebraska reached a settlement in a inmate suicide lawsuit with the sister of the decedent.

Sounds like a tough claim, right? The wrongful death lawsuit claims that his jailers failed, "to properly monitor [the victim]" and that they should have known he was a suicide risk. Why? Because a reasonable person would know he was trying to kill himself when he got arrested in the first place. Helping the case: the victim never should have been arrested in the first place, a grand jury later found.

A sympathetic victim also probably drove the settlement. He suffered post-traumatic stress disorder after serving in the military from 2001 to 2004 (presumably in Iraq or Afghanistan).

Interestingly, the article on the case says the man's sister brought the lawsuit. In most jurisdictions, including Maryland, a sister has no rights under the wrongful death act.

Last week, the Court of Appeals of Missouri decided a subsequent remedial measures case that I think is of interest to all personal injury lawyers no matter where you practice.

The subsequent remedial measures rule is one of those law school standards that any second year student can explain in about two minutes. Despite its seeming simplicity, as we see in Emerson v. Garvin Group, the rule is more complicated to apply.

Plaintiff was employed by Raven Industries and was responsible for performing electrical assembly work. Due to the nature of the company’s work, the electrical plant floors had to be stripped, waxed, and buffed to comply with static electricity issues. This work was done by the Garvin Group.

During a routine shift, the Garvin Group had begun the process of treating the plant floors near the plaintiff. When plaintiff left her work station to get necessary electrical parts, she slipped and fell in the area that had just been treated. Plaintiff suffered wrist injuries due to the fall.

After the accident, it was noted that the Garvin Group had not marked the treated area with cones or tape.

At trial, plaintiff sought to introduce evidence that after the injury, Raven instructed the Garvin Group to mark the recently treated areas of the floor. The trial court excluded this evidence as a subsequent remedial measure.

The subsequent remedial measures rule is a part of evidence law. This is a policy rule that prohibits the court from hearing evidence of what a defendant did after an incident if that evidence is introduced to prove negligence, culpable conduct, defect, or a need for a warning. Such evidence can be used for other purposes including proof of ownership or control over a thing.

Courts exclude this evidence because we don’t want juries to take subsequent remedial measures as proof of guilt. Further, courts use this rule because we want to encourage all parties, including defendants, to conduct themselves in the safest way possible. If parties were punished for making things safer, they would be less inclined to do so.

The jury awarded $15,000 but apportioned the plaintiff to be 80% at fault thus giving her a $3,000 total award. From this judgment, plaintiff appealed.

At appeal, plaintiff argued that the trial court erred in excluding evidence that, subsequent to her accident, Raven directed Garvin to mark the treated areas of floor. Plaintiff acknowledged the subsequent remedial measures rule but argued that the rule does not apply to measures taken by a non-party. She said that because this evidence cannot expose the third party to liability, it should be admissible. Federal courts have agreed with plaintiff’s argument. Missouri courts are not bound by the Federal Rules of Evidence, but the court took them into consideration in this decision.

The appellate court agreed with plaintiff on the theory that because a non-party will not be exposed to liability and thus will not be discouraged from taking remedial measures, the public policy rationale for the rule is satisfied.

Plaintiff’s appeal also disputed the amount of compensation she received. The Court of Appeals remanded the case for a new trial to determine fault and damages.

This case shows how a simple rule can become very complicated once it is put into action in the courtroom. I hate the rule - it has been used against me - and I'm not sure it works as well as many things. Because most lawyers are going to say, "There is still a risk in fixing it" because there could be an exception to the rule that would lead to it coming into evidence. Still, I support safety rules and I can't be a hypocrite on those rules that I don't like as a lawyer.