Accident and Injury Lawyer Blog

A South Dakota woman filed a lawsuit against two mining companies and Johnson and Johnson last week, alleging the companies have been failing for decades to warn consumers of the association of talcum powder and ovarian cancer.

Plaintiff's lawsuit alleges that talc particles cause tumors in human ovaries. Plaintiff used talc-based body powder each day for over 30 year and contracted ovarian cancer in 2006.

I suspect the thrust of the lawsuit is that the National Toxicology Program found in 1993 that cosmetic grade talc caused tumors in animal subjects. The FDA has taken no action and cosmetic grade talc remains unregulated by the federal government.

Do I think that the Plaintiff will be able to show that her ovarian cancer was caused by talc at trial? I have no idea but I suspect not. Would I have liked to know about this National Toxicology Program finding before I wrote this post this morning? Obviously, yes.

On the Legal Blog Watch, Robert J. Ambrogi gives us another example of how the Internet is intruding on jury trials. The South Dakota Supreme Court found that the trial judge did not abuse his discretion in declaring a mistrial in a seat belt defect wrongful death case because of a juror's Google searches.

You can read the entire South Dakota Supreme Court opinion here.

• Jurors and Facebook (PA trial)
• Jurors and Twitter
• The Faculty Lounge (more on Twitter and jurors)
• Twitter Marketing (Overlawyered post on one lawyer's effort to market his law practice via Twitter)

On the Legal Blog Watch, Robert J. Ambrogi gives us another example of how the Internet is intruding on jury trials. The South Dakota Supreme Court found that the trial judge did not abuse his discretion in declaring a mistrial in a seat belt defect wrongful death case because of a juror's Google searches.

You can read the entire South Dakota Supreme Court opinion here.

• Jurors and Facebook (PA trial)
• Jurors and Twitter
• The Faculty Lounge (more on Twitter and jurors)
• Twitter Marketing (Overlawyered post on one lawyer's effort to market his law practice via Twitter)

The South Dakota Supreme Court has upheld South Dakota Circuit Judge Jon Erickson’s decision to grant a new trial in a medical malpractice lawsuit against a Huron doctor. The medical malpractice lawsuit arose out of complications from gall bladder surgery in 2001. The jury instruction stated:

A doctor is not necessarily negligent because the physician errs in judgment or because efforts prove unsuccessful.

The physician is negligent if the error in judgment or lack of success is due to a failure to perform any of the duties defined in these instructions.

This instruction is clearly not South Dakota law and, while the South Dakota Supreme Court says there are medical malpractice cases where this instruction is appropriate in "certain limited circumstances" the court does not explain what those circumstances might be. I can't imagine what they are. But Judge Erickson gave the instruction. The jury last year found that the doctor was not negligent.

I don't know how the change of heart came about but, to his credit, Judge Erickson acknowledged the error and ordered a new trial. The doctor's malpractice lawyer appealed, arguing that is was an abuse of discretion to grant a new trial. Specifically, the defendant's lawyer relied on Veith v. O'Brien where the court found that the plaintiff did not prove that this "error in judgment" instruction "in all probability" had an impact on the jury's verdict.

The South Dakota Supreme Court agreed with Judge Erickson that the instruction was inappropriate and found that it was not an abuse of discretion to find that the instruction prejudiced the Plaintiff's case. Interesting, the court stated in a footnote that "concededly, there may be little to distinguish our holding in Veith." I just thought this was a remarkable candid admission from the South Dakota Supreme Court.

The decision was unanimous and I think it is hard to argue with the result because every medical malpractice plaintiff has the right to have a jury consider what the malpractice law actually is. That said, I feel for the doctor who received a verdict and now must go through the entire process all over again. Finding for the plaintiff is the lesser injustice but it is intellectually dishonest to think that the jury in this case likely would have found medical malpractice but for this incorrect jury instruction.

You can read the entire opinion here.

Last week in Baddou v. Hall, the South Dakota Supreme Court either enunciated new law or affirmed existing law (depending upon your perspective) on whether South Dakota has a presumption of negligence in Rapid City rear-end car accident case. The court’s answer: it does not.

This is bad law, in my opinion, because it makes South Dakota car accident lawyer prove a negative. Rear-end car accidents rarely happen in the absence of negligence and the defendant is the one in the best position to know the nuance of the negligence. It is basically a technicality generating law.

I disagree with the Plaintiff that a rear end accident should be negligence per se. Instead, the better law, applied in many states such as Florida, Maryland, and Colorado, is that there is a rebuttable presumption of negligence in rear end accident cases.

The South Dakota court also affirmed in dicta the notion that the “mere fact an accident happened creates no inference that it was caused by someone’s negligence” in South Dakota. This instruction has fallen out of favor in many jurisdictions but, apparently, not in Bismarck.

Another aspect of South Dakota law that I don’t like is that they are more liberal in allowing police reports in evidence than most other states. Jurors are confused when they do not see the police report but they are even more confused when they do and tend to delegate their decision making power to the police officer instead of using their own judgment. I actually think this rule generally helps plaintiffs’ car accident lawyers. But not always and I don’t think the admission of the police report is fair.

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.

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

Jury Verdict Research(r) study reports that rotator cuff injuries reached a 7-year high in 2006 with a compensatory award median of $72,667. This is almost 50% higher than previous reported settlements and verdicts in rotator cuff injury cases.

Our lawyers have never understood while the national data in these cases was so low. Washington D.C. rotator cuff injuries have averaged well over $100,000 for rotator cuff settlements and verdicts so we have never understood why the national average was as low as it has been. In any event, for whatever reason, rotator cuff verdicts are on the rise.

Our lawyers handle rotator cuff injury cases throughout the United States. Our lawyers have handled scores of rotator cuff injuries in car and truck accidents, typically in side collision or "T-bone" accidents. Our lawyers believe that insurance companies do not give fair value in most rotator cuff injury cases and our lawyers will fight to get you the financial compensation you deserve. Call a rotator cuff lawyer to protect you at 800-553-8082 or click here for a free consultation and case evaulation.

Related Posts

What Is the Value of Your Personal Injury Claim? (how the value of rotator cuff and other person injury settlements are calculated)

Sample Demand Letter (sample letter demanding settlement in a personal injury case)

Handling Your Claim Without a Lawyer (tips and pratfalls)

Lawyers representing Digitek overdose victims have filed nine lawsuits in New Jersey against Actavis Totowa LLL and its parent company Actavis Group, alleging a manufacturing defect in Digitek, namely that some Digitek tablets have contained twice the active ingredient of the drug. Digitek recall lawsuits have also been filed in West Virginia and California.

Our Digitek recall lawyers are reviewing these Digitek overdose cases in all 50 states expecting that a consolidated class action lawsuit will be appropriate (as opposed to this scatting of individual cases). If you want to discuss your case with one of our Digitek lawyers call us at 800-553-8082 for a free consultation or click here for a free Internet consultation.

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