Accident and Injury Lawyer Blog

Kentucky appellate court reminds us again that you need an expert in medical malpractice case. You did not need a remind? Oh. Good

The U.S. Consumer Product Safety Commission (CPSC) has announced a few recent recalled children's products.

Approximately 2,300 sets of Children's Henley Pima Cotton Pajamas, imported by Bella Bliss of Lexington, Kentucky have been recalled, as the pajamas fail to meet the federal flammability standards for children's sleepwear, and as such, pose a burn hazard for children. The pajamas, a two-piece, cotton sleepwear set, came in white, blue, pink or red, with "Bella Bliss" written on the neck tag. They were sold in the Bella Bliss catalog and website, as well as specialty clothing retailers and online stores from January 2008 to June 2011 for about $48 to $58.

Next on the recall are Keds Girls' Shoes, which are being recalled due to laceration hazard. Manufactured in China, approximately 45,000 Keds"Know It All" girls' shoes are being recalled as the metal stars on the back of the shoes have been known to loosen and cause cuts and scratches. The maker has received 27 reports of cuts and scratches. The affected shoes are black and pink with white trim and a pink loop on the heel. "KEDS" appears on the tongue and heel of the shoe. The style number, printed on the underside of the tongue, is KY40098A. The shoes were sold in girls' sizes 12 to 5 and were sold at various department stores and online retailers from June through October 2011, and retailed for approximately $23.

Next recall for the holiday season, Kidgets Animal Sock Top Slippers are being recalled due to a choking hazard. The recalled children's slippers have brown or tan dog faces, yellow duck faces and tan lion faces. Approximately 160,000 slippers have been recalled as the animal's eyes can detach, posing a choking hazard. The name "Kidgets" and the size appear inside the slippers on the soles, and "FD9619108020690611" is printed inside the slippers on the side. The affected slippers were sold exclusively at Family Dollar stores nationwide from September 2011 through October 2011. Family Dollar has received one report of the eyes detaching from the slippers, though no injuries have been reported.

And last, for today anyway, Build-A-Bear Workshop has recalled their Teddy Bear Swimwear Set as it may pose a strangulation hazard. Approximately 19,720 units in the United States and 1,100 units in Canada have been recalled as Build-A-Bear received one report of an incident in which a 3-year-old girl pulled the inner tube over her head and had difficulty removing it. The set, sold at Build-A-Bear Workshop stores nationwide and online from April 2011 to August 2011, has a Fruit Tutu Bikini for teddy bears, and includes an inner tube. The inner tube is 9" in diameter and is pink with white and yellow flowers printed on it. The model number of the swimwear set is 017220 and is located on the price sticker on the "Build-A-Bear" cardboard tag.

Being a parent myself, I understand that we can't be everywhere and see everything, but at some point, we have to hold ourselves accountable for something. Otherwise, every toy, every piece of clothing, every everything is going to be recalled at some point. While maybe not every set of pajamas is going to ignite, given enough time, every stuffed animal is going to lose an eye and pose a strangulation hazard. Recalls should just remind us to pay a little more attention and be a little more cautious of the potential hazards out there. Kids are kids, let them have their toys - just keep a closer eye on them.

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.

The J.M. Smucker Company has announced a limited recall on 16 oz. Smucker’s Natural Peanut Butter Chunky, as it has been determined that it may be contaminated with Salmonella. 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.

The affected Peanut Butter is packaged in 16oz jars, and is marked as follows:

• UPC: 5150001701 (located on the side of the jar's label below the bar code)
• Production Codes: 1307004 and 1308004
• Best-If-Used-By dates: August 3, 2012 and August 4, 2012
• Chunky product only (not creamy)
• Impacted product would have been purchased between November 8 - 17, 2011

This product was distributed in: Arkansas, Colorado, Delaware, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Texas, Virginia, Wisconsin, and the District of Columbia.

No other products of The J.M. Smucker Company are affected by this recall.

Last week the lettuce recall was due to Listeria, this week we have moved on to Salmonella concerns.

Taylor Farms Retail Inc. has issued a precautionary recall of 3,265 cases of various salad blends, as a random test of packaged spinach showed the potential to be contaminated with Salmonella.

The bagged salad products subject to the recall include:

• Fresh Selections Hearts of Romaine 10 oz. bag 0-11110-91044-8 TFRS277B07OOKR5L Best By 10-18-11
• Fresh Selections Leafy Romaine 10 oz. bag 0-11110-91046-2 TFRS277B07OOKR5H Best By 10-18-11
• Fresh Selections Field of Greens 10 oz. bag 0-11110-91042-4 TFRS277B07OOKR5F Best By 10-18-11
• Fresh Selections Romaine Blend 10 oz. bag 0-11110-91038-7 TFRS277B07OOKR5N Best By 10-18-11
• HEB Spring Mix 5 oz. bag 0-41220-19752-1 TFRS277B07 Best By 10-20-11
• Marketside Fresh Spinach 10oz bag 6-81131-32946-0 TFRS277A07 Guaranteed Delicious By 10-21-11
• Marketside Caesar Salad Kit 14.6 oz. bag 6-81131-38744-6 TFRS277B07 Guaranteed Delicious By 10-19-11
• Marketside Asian Salad Kit 15 oz. bag 6-81131-53211-2 TFRS277B07 Guaranteed Delicious By 10-19-11
• Marketside Southwest Salad Kit 15oz bag 6-81131-38747-7 TFRS277B07 Guaranteed Delicious By 10-19-11
• Marketside Premium Romaine 9 oz. bag 6-81131-38753-8 TFRS277B07 Guaranteed Delicious By 10-19-11
• Marketside Premium Romaine Family 18 oz. bag 6-81131-38807-8TFRS277B07 Guaranteed Delicious By 10-19-11
• Taylor Farms Field Greens 8 oz. bag 0-30223-04036-1 TFRS277B07 Best If Used By 10-20-11

The products were distributed in Arizona, California, Colorado, Florida, Kentucky, Missouri, New Mexico, New York, North Carolina, Oregon, South Carolina, Texas, Virginia, Washington and Puerto Rico and sold in various retail supermarkets.

No other products or code dates are affected by this recall, and there have been no reported illnesses attributed to the recalled items.

• Lettuce Recall: Listeria Concerns

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.

Darvocet lawyers have filed a motion to have all Darvocet lawsuits filed under one federal judge. This is called the MDL where the case becomes a sort of class action lawsuit for the purposes of discovery.

The defendants in these cases opposed a class action, arguing that these lawsuits involve multiple individualized fact issues of causation and product identification which will require discovery unique to each lawsuit.

Continue reading "Darvocet MDL: All Federal Cases Sent to Kentucky" »

In Wilson v. State Farm, a U.S. District Court in Kentucky found that an insurance carrier did not act in "bad faith" by delaying payment of the settlement in a car accident case pending plaintiff's lawyer squaring away a Medicare lien.

In Wilson, the plaintiff brought an uninsured motorist claim and the insured tendered the policy of $50,000. Plaintiff said, "Okay, we settled the case, pay me." State Farm withheld payment, worried that it would be responsible for the Plaintiff's Medicare lien. Plaintiffs' lawyers deal with this issue every day.

Plaintiff's lawyer understood State Farm's position and tried to marry the two, demanding that State Farm put the settlement in an escrow account from which Medicare's conditional payment amount would be payable. The plaintiff (and probably his lawyer, I don't know) also promised to hold the insurer harmless with respect to any potential claim asserted by Medicare.

State Farm's answer was a solution that was offered - and rejected - to me in a case just last Friday: putting Medicare on the check. Getting them to sign that check would probably take literally an Act of Congress.

Continue reading "State Farm Holds Back Settlement Pending Medicare Lien" »

There is a recall of over 6,000 Touch Point oscillating ceramic heaters. The recall stems from a problem with the oscillating mechanism in these small, low priced heaters. It is shorting out which causes a potential fire hazard. There have been a few accidents resulting in property damage but no injuries.

This recall involves Touch Point PTC oscillating ceramic heaters with model number PTC-902 and serial numbers between 35005-43008. They were sold in Meijer stores in Indiana, Illinois, Kentucky, Michigan, and Ohio from October 2009 through October 2010 for about $25.

Kentucky joins the "no texting while driving" fold. The law does not have a lot of teeth: if you are caught texting while driving you will only get a warning. Next year, Kentucky will up the ante to $25 for the first offense and $50 for subsequent offenses. Yes, it is weak. But it is a start. The most important thing about the texting law is not the enforcement but in getting the word out that texting and driving is a dangerous cocktail.

According to Jury Verdict Research, the average personal injury jury verdict in Kentucky is $518,387. The median jury verdict in Kentucky is $40,000.

The Kentucky Injury Lawyer Blog has some interesting statistics on auto accident in Kentucky. Approximately 20% of Kentucky accident happen in Jefferson County.

One thing you have to keep in mind if you are handling a car accident case in Kentucky. The Kentucky statute of limitations is downright draconian.

A Kentucky jury has ordered a doctor’s malpractice insurance company to pay $3.8 million for acting in bad faith by delaying payment on aclaim it knew its client was liable for, the Louisville Courier-Journal reports. The insurance company initially offered the Plaintiff $75,000 to settle her case despite the fact that the malpractice insurance company estimated the case to be worth $1 million. Typical stuff that does not surprise any malpractice lawyers. Plaintiff was left permanently disabled after her doctor botched a cosmetic procedure the doctor suggested Plaintiff had while she underwent a hysterectomy.

A Kentucky jury awarded $3 million to a woman in a medical malpractice case against a doctor who it found improperly attaching a hose that helps pump blood and oxygen during relatively routine heart surgery. A hospital co-defendant had already settled with the Plaintiff.

The total verdict was The total verdict was $9,864,175.78 but the jury found the doctor to 31% responsible.

Medical malpractice lawyers filed an informed consent lawsuit last week accusing a doctor of amputating a man’s penis without his consent. In the lawsuit, a Kentucky man alleges that the doctor was only authorized to perform a circumcision. What happened – right or wrong - was the doctor did what he thought he should to save the patient’s life when he found cancer during the operation.

I won't prejudge this lawsuit without hearing the evidence. I can certainly imagine a scenario where a doctor finds cancer during a routine operation and does what the doctor believes he must do to save the patient. The Plaintiff affirmed the doctor’s prerogative in this regard by signing a consent form acknowledging that unforeseen conditions discovered during the circumcision "may necessitate additional or different procedures." But I would reserve judgment on the merits of the case because it really depends on whether reasonable minds could differ as to what was the appropriate course.

But I find disturbing that the lawsuit seeks punitive damages. Unless facts in the case exist that were not included in the Courier-Journal article I read, there is no malice or even recklessness in a doctor - right or wrong - making a decision to try to save a patient's life.

One thing John McCain does that drives me nuts is to vilify everyone who does not agree with him as "corrupt" or as "violators of the public's trust." I think this lawsuit is a cousin of that mentality. We can have an honest conversation about whether the doctor was negligent in this case. But for an award of punitive damages, Kentucky law requires that the plaintiff show “clear and convincing” evidence that a defendant acted with oppression, fraud or malice. Is there even a scintilla of evidence that that is what occurred 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."

Garrard County, Kentucky Judge Janet Booth sentenced a woman to jail for three days for wearing short shorts to court, according to the Herald Leader in Kentucky. Apparently, this was the woman’s third court appearance and she had been warned on two previous occasions.

Regardless of your view on whether this was appropriate (personally, I think we have more pressing problems with our criminal justice system and its defendants), I think it is reasonable to say three days is way over the top. The defendant had to be transported to the Boyle County jail because the Lincoln County jail, which normally holds prisoners in Garrard County, had no room for her. Taxpayers should question whether it was worth spending so much money and effort over a point that could have been made – if it even needed to be made – in a half hour.

Thanks to Above the Law for the link although we come at it from two very different angles.

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.

Last week, Digitek manufacturer Actavis Totowa recalled over 65 different drugs made at their New Jersey manufacturing plant. The list of recalled drugs (in some form or another) includes such generic drugs as Bellamine, Buspirone, Carisoprodol, Oxycodone Meperidine, and Rifampin. This strengthens the conclusion that the New Jersey plant that made these drugs may be the cause of irregularities in Actavis medications.

In April 2008, Actavis recalled Digitek, a drug prescribed to treat heart failure and irregular heartbeat because it was discovered that Digitek tablets appeared to have double the thickness – and likely double the active ingredient – listed on the label. When Digitek is given in abnormally high doses it can lead to digitalis toxicity which, paradoxically, worsens the problems Digitek is intended to treat, causing nausea or lower blood pressure and other side effects from the Digitek overdose that can lead to the increased risk of stroke or a heart attack.

If you would like to speak to a Digitek recall lawyer about a potential Digitek lawsuit, call 1-800-553-8000. For more information on the Digitek overdose recall or a free consultation on your potential Digitek case, click here.

Zimmer's Durom Cup hip implants are likely to be the subject of a good number of lawsuits from patients with the Zimmer implants. But they will not be the only ones. Apparently, Zimmer’s own shareholders may agree that Zimmer left its hip implant on the market way too long. Last week, shareholders of Zimmer stock filed a class action in Indiana. Interestingly, the lawsuit seeks damages for shareholders who purchased stock between January 28, 2008 and July 21, 2008. This tells our Zimmer hip implant recall lawyers that these shareholders believe that Zimmer knew or should have known and issued a recall on or before January 28, 2008.

If your Zimmer Durom hip resurfacing cup was defective, call our Zimmer hip implant lawyers at 1-800-553-8082 or click here for a free consultation.

More information on the Zimmer Hip Implant Recall
History of the Zimmer Durom Cup Hip Implant Recall
More information on the Zimmer hip implant recall lawsuits