Accident and Injury Lawyer Blog

Johnson & Johnson has announced the recall of Aveeno Baby Calming Comfort Lotion. The recall only affects one lot that was shipped only to a few states.

The recall was initiated as a precautionary measure after testing indicated that the lot exceeded the specifications for common bacteria. Extensive testing has been performed since by an independent lab, and has not shown that specifications were exceeded; however, Johnson & Johnson Consumer Companies initiated the recall out of an abundance of caution.

The only affected lot is lot number: 0161LK with a UPC Code of: 38137-0036456. The recalled product was shipped to Alabama, Arkansas, Florida, Georgia, Kansas, Louisiana, Mississippi, Tennessee and Texas.

Four NFL players have filed a lawsuit claims they have brain injuries from concussions suffered while playing in the NFL. Clearly, the most prolific player is Jamal Lewis, who is one of the best players the Baltimore Ravens have ever had. Dorsey Levins, another extremely accomplished running is in lawsuit along with Fulton Kuykendall and Ryan Stewart. The common thread between the players? They all live in Atlanta so they found the same lawyer to bring their claim.

Earlier this month, 12 former NFL football players filed a concussion related lawsuit against the NFL about its concussion policies. If these concussion lawsuits are successful, you have to wonder how the NFL will survive. One win by one player would lead to thousands of claims.

I feel for the players. I really do. But I don't like the lawsuits. The NFL does not manufacturer a product about which it has unique knowledge of the risks. Opinions vary on the degree of the risk and those opinions are continuing to evolve with modern science. But everyone has equal access to the literature and people have a right to choose the course they want to take.

The First Division Georgia Court of Appeals overturned directed verdict in a carbon monoxide brain injury lawsuit after the trial court made multiple errors on what are frankly, some pretty basic issues.

First, the trial court erred in jury selection. Two possible jurors said they could be biased yet no effort was made to follow up with those prospective jurors to inquire about the bias. This is a no-brainer. Jurors at risk for bias have to be examined and bias concerns must be resolved. This is made pretty clear in Being a Judge 101. Apparently, this case was in a Mayberry-like town and both jurors were biased in favor of the defense lawyer, who they knew, and said they would be biased in favor of deciding the case. Check this out:

JUROR: I'm a CPA in Cordele.

[LAWYER]: You know—

JUROR: I mean, he's my client and my attorney, so you know I've worked on many occasions with him.

[LAWYER]: I'm not sure this is-I don't want to be inappropriate with the question, but is he your current client?

JUROR: Yes.

[LAWYER]: Is it on a personal basis?

JUROR [30]: Yes.

[LAWYER]: Well, I've asked a few times, but I'm going to have to ask again if that would—he's your client, would you be inclined to try to find in his favor?

JUROR [30]: What do you think? Of course. (I love this. What do you think?)

Continue reading "Georgia Appellate Court Slams Trial Court" »

Dogs are people too. Pretty much. For many of us.

So we report here on Proctor & Gamble Company has retrieved a single production lot of dry dog food as aflatoxin levels, above the acceptable limit, have been detected. This product has already been retrieved from store shelves.

Aflatoxin is a naturally occurring by-product from the growth of Aspergillus flavus and can be harmful to pets if consumed in significant quantities. Pets who have consumed this product and exhibit symptoms of illness including sluggishness or lethargy combined with a reluctance to eat, vomiting, yellowish tint to the eyes or gums, or diarrhea should be seen by a veterinarian.

The affected dog food is as follows:

• Product Name: Iams ProActive Health Smart Puppy dry dog food with Use By/Expiration Dates of February 5 or February 6, 2013
• Version: 7.0 lb bag; Code Date: 12784177I6; UPC Code: 1901402305
• Version: 8.0 lb bag; Code Date: 12794177D2 and 12794177D3; UPC Code: 1901410208
• Version: 17.5 lb bag; Code Date: 12794177K1 and 12794177K2; UPC Code: 1901401848

The affected product lot was distributed to a limited number of retailers located in the eastern United States: Alabama, Connecticut, Delaware, Florida, Georgia, Louisiana, Maryland, Maine, Mississippi, North Carolina, North Carolina, New Hampshire, New Jersey, New York, Pennsylvania, South Carolina, and Virginia. These retailers have already removed this product from store shelves.

While no health effects related to this product have been reported, P&G retrieved this product from the shelves as a precautionary measure. Consumers who purchased the affected dog food should stop using it, discard it, and contact Iams a replacement voucher.

No other dry dog food, dry cat food, dog or cat canned food, biscuits/treats or supplements are affected by this announcement.

Dogs matter. I'm glad Proctor is doing the right thing by making sure our animals are safe.

Mars Food has recalled two date codes of Uncles Ben's Whole Grain White Rice Garden Vegetable, due to an undeclared milk allergen. People who have an allergy or severe sensitivity to milk run the risk of serious or life-threatening allergic reaction if they consume these products.

The recall, affecting ONLY the Whole Grain White Rice Garden Vegetable, affects the 4.7 oz. (133 g) boxes with the following:

• UPC code of 54800 40778
• Best before: 08/12
• Code dates: 133BA4RP06 and 133BB4RP06

An ingredient supplier improperly included an undeclared milk ingredient in the seasoning mix used for this product. As such, consumers with milk allergies are advised not to eat the product, and consumers should return the product to the store where it was purchased for a full refund.

This product was distributed through retail stores in Alabama, Arkansas, Arizona, California, Colorado, Delaware, Florida, Georgia, Iowa, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Missouri, Mississippi, North Carolina, New Hampshire, New York, Ohio, Oregon, Pennsylvania, Tennessee, Texas, Utah, Virginia, Vermont and Wisconsin.

Mars Food US has not received any reports of illness or other consumer complaints related to this matter. No other flavors of Uncle Ben's Whole Grain White Rice or any other Uncle Ben's products are affected.

On November 17, 2011, a Georgia jury awarded $9.85 million to the parents of a child who drowned in a pool at an unlicensed daycare in 2009 ($9.8 million in damages and another $50,000 in pain and suffering).

The facts are tragic. While under the daycare provider's care, the toddler was left unattended and fell into an unsecured pool on the property and drowned. The suit claimed that the daycare employees lied to the parents about their operation being approved by the state of Georgia when, in fact, it was an unlicensed facility.

Before enrolling children in any program, especially home-based facilities, parents should check with state agencies for licensing information. If a daycare owner has a pool, it is like having a loaded gun lying around. At a minimum, the facility needs to make sure there is a lock and key on that gun and all county codes for safety and security are being met. Parents should never blindly assume that the daycare provider is following all the rules and regulations required.

• Maryland Family Daycare Licensing Regulations

American Egg Products is recalling their frozen egg product, as it may be contaminated with Salmonella. The affected egg product was distributed to Georgia and Florida, and sold to three distributors and food manufacturers.

The product, American Egg Products Frozen Eggs, comes in five pound paper cartons. The Lot # 272-1 is printed across the side of the master case, and the plant number: 272 1 P 1105 is imprinted inside each individual carton. The recall was initiated as a result of a routine sampling, revealed that the finished product contained Salmonella. American Egg Products has stopped distribution of the frozen eggs.

Just yesterday, we reported that Salmonella was being linked to organic eggs, distributed by Larry Schultz Organic Farm. Salmonella is an organism that can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems.

No illnesses have been reported to date in connection with this product.

• Salmonella
• Even More Egg Recalls
• Egg Recalls

Yamaya is recalling Masago (Capelin Roe), as it may be contaminated with Listeria monocytogenes. The Masago (Capelin Roe) was distributed to retail stores in Los Angeles, California; Baltimore, Maryland; Atlanta, Georgia, and Mexico.

The Masago was packed in a 2 lb plastic container with a white label containing Japanese and English writing, and has “Yamaya USA, Inc.” as the brand. The label indicates Masago (Capelin Roe) and the “Item No. 09867” is printed on the box.

The recall was the result of sampling testing of the facility by the FDA, and it was revealed that this Yamaya sushi contained the bacteria. The company has ceased the production and distribution of the Masago (Capelin Roe).

To date, thankfully, there have been no illnesses reported.

Kroger Co., the nation's largest grocery store operator, is recalling a specific lot of "Extreme Moose Tracks" ice cream sold in 10 states, as it may contain peanuts not mentioned on the label.

The recall involves only their 16-ounce pints of the product, ones that list a sell-by date of June 18, 2012, and contain the UPC code 11110 52909.

The ice cream was sold at Kroger stores in Alabama, Georgia, Illinois, Indiana, Kentucky, Michigan, Missouri, Ohio, South Carolina and Tennessee, as well as the company's Jay C, Food 4 Less, Owen's, Pay Less and Scott's stores in Illinois and Indiana. Kroger says shoppers should return the product to supermarkets for a refund or replacement. If 1% of the people who bought the ice cream do this, I would be shocked. It is like a "can I help?" when you know the person you are asking is going to say no. Still, the offer is the right thing to do, of course. (If they didn't, I would be complaining about that, too, so I realize they can't win. Then again, don't put peanuts in your product without telling us and you won't be in the situation in the first place.)

Last month, an E. coli outbreak prompted a ground beef recall by Tyson Fresh Meats, which involved certain Kroger-brand ground beef.

In the eyes of 90% of my office, Starbucks can do no wrong. I need to forward this post to all of the Starbucks lovers.

Starbucks has expanded its previous recall of boxed sandwich products. Why the recall? Well, for one thing, the U.S. Department of Agriculture requested it. That's a good reason. It would probably be best if Starbucks could figure out when to recall their food without the feds telling them to do so.

More specifically, on July 19, 2011, Starbucks learned that one of its suppliers was recalling approximately 200 pounds of ingredients for ready-to-eat chicken wraps and plates delivered to Starbucks retail stores in Georgia and Alabama due to a fear of Listeria contamination. Listeria is a type of food poisoning that can cause, among less severe symptoms, headaches, but it can also cause meningitis, convulsions, and death.

This initial recall was for Starbucks Chipotle Chicken Wraps Bistro Box and the Starbucks Chicken & Hummus Bistro Box. Now, the recall includes the Starbucks Salami and Cheese Bistro Box and the Starbucks Chicken Lettuce Wraps Bistro Box. The affected products were only sold in Alabama and Georgia.

Woman can't find her husband. She's scared. She panics. She frantically calls the motel where she thinks he is staying on a business trip. "Can you please check on my husband?" The motel's response: "nah." She calls multiple times. Same answer. Next morning, the hotel housekeeper finds him dead.

Woman files a lawsuit and gets the medical testimony you would have thought had been impossible to get: the man would have lived if he received medical treatment when the motel was asked to check on the man.

The Supreme Court of Georgia, in a 4-3 decision, found that a hotel manager has no legal duty to investigate the health and safety of a guest by request. If the motel had knowledge that its invitee was in "imminent danger because of observation of the physical peril; no manner of investigation or inquiry was at issue."

The dissenting opinion - and "Judge Me" agrees - was that Georgia would be better served joining the majority of states that have adopted the Restatement (Second) of Torts § 314A and finding that the innkeeper is obligated to act if he "knows or has reason to know" that his guest is ill or injured.

You can find the opinion here. Ken Shigley also summarizes the opinion here.

The Georgia Court of Appeals has tossed a $459 million junk fax verdict on Wednesday, finding that the trial judge erred in concluding that defendant sent 306,000 unsolicited fax advertisements because plaintiffs did not prove the faxes had been received.

Wow, $459 million for faxes? Juries are crazy. Well, actually, this was a bench trial but let's not ruin the tort reformers narrative. I'm sure all of the tort reform folks will pretend that (1) a jury decided this, (2) this was a tort action, and (3) there is a chance this is a collectable verdict against a siding, window, and gutter installation company that was in business between 2002 to 2004.

But, look, I think these junk faxes lawsuits are a little ridiculous myself. The idea of plaintiffs - or frankly their lawyers - getting money because they got a junk fax just seems ridiculous to me. I realize there is an economic burden associated with junk faxes and these claims might not be as petty in the macro picture as their are in the micro picture. But on some human level, it is a fax, it is a cold call, let's not get so worked up about nothing.

You can read the full opinion here.

MAG Mutual Insurance provides malpractice insurance to most Georgia doctors and others in the southeast. MAG Mutual Insurance Company is the tenth largest medical professional liability insurer in the United States.

In spite of its continued claims of a medical malpractice lawsuit crisis, MAG Mutual recently approved a dividend distribution its doctor-policyholders. MAG Mutual's website brags that for the fourth year in a row, and the twelve of the last sixteen years, MAG Mutual has provided a dividend check for its doctors.

A federal court in Georgia ruled that Rule 53 of the Federal Rules of Criminal Procedure prohibits “tweeting” from the courtroom.

The court basically found that Federal Rule 53 that prohibits photographs prohibits tweeting. Earlier this year, a Kansas court went the other way on this, ruling that a reporter could tweet a racketeering trial.

Personally, I this the call in Kansas was a better one. At some point, we all need to face - like it or not - this is 2009.

A federal judge in Atlanta has been asked to sanction the Atlanta Police Department for withholding internal documents during the discovery phase of wrongful death case, according to an article in the Atlanta Journal-Constitution. The lawsuit in the case, filed by the wrongful death lawyers of the relative of a 92-year-old woman killed in a 2006 police raid, alleges claims that the Atlanta department tried to cover up the existence a quota system used for arrests and warrants.

Our firm handles malpractice, product liability and auto accident cases in Atlanta. If you need an Atlanta personal injury lawyer, call 800-553-8082 or click here for a free consultation.

We provide on our website a summary of the law that pertains to Atlanta car accidents. If you need an Atlanta car accident lawyer, call 800-553-8082 or click here for a free no obligation consultation.

Maryland and Georgia both have rulings on tap from their high courts on caps on economic damages. Georgia got the ball rolling yesterday when the Georgia Supreme Court heard arguments yesterday on whether its cap on damages for medical malpractice claims is constitutional. A Georgia medical malpractice lawyer argued for the Plaintiff that the tort reform law in 2005 is unconstitutional because it grants unfair preferences and exemptions to hospital emergency departments.

Plaintiffs have a real shot in this case. The Georgia high court has previously stuck down laws that gave special exemptions to asbestos manufacturers facing property claims. Stay tuned....

A Fulton County jury in Georgia ordered an obstetrician and a pediatrician to pay a combined $2.3 million for their treatment of an infant in a botched circumcision The malpractice lawsuit in this case alleged that the obstetrician and the pediatrician were negligently failed to provide care when part of the boy’s penis was severed during the procedure at South Fulton Medical Center.

The frustrating thing about this case is that it appears to have been negligence that could have been largely fixed. The doctor who circumcised him removed too much tissue. That was mistake number one. If the tip of the penis was placed in a biohazard bag, it could have been reattached if a urologist had attended to the boy within eight hours. But the jury found that the boy's pediatrician failed to respond when a nurse made him aware of excessive bleeding.

You can find an article on the story here.

My two volume treatise Insurance Settlements is now available from James Publishing. The book discusses how to position a lawyer's car accident, truck accident, medical malpractice or product liability case to the best possible settlement at every step along the way (until the state's high court affirms the judgment).

Click on the James Publishing link. If you have any comments on the book, please email me at ronmiller@millerandzois.com under the subject "Insurance Settlements Comments."

Our lawyers are reviewing Byetta claims after the FDA announced this week that the diabetes drug has been linked to severe pancreatic problems in dozens of patients. On Monday, the FDA warned patients taking Byetta to discontinue use if they develop symptoms of the disorder. Further the FDA said that doctor prescribing Byetta should consider other prescription options for patients with a history of pancreas problems.

Since Byetta was introduced into the United States in 2005, more than 700,000 patients have used the Byetta.

Our lawyers are now exploring potential Byetta lawsuits. If you would like to discuss your case with a Byetta lawyer, call 800-553-8082 or click here for a free consulation/case evaluation (or even to answer any question you may have). For more information on Byetta and the concerns with Byetta, click here.