November 24, 2010

Toyota's Recall Woes Continue

In an October 20th press release, automaker Toyota's USA subsidiary, announced a voluntary recall of nearly 750,000 of its cars and SUVs. The USA announcement followed a similar one in the company's home country of Japan. With millions already spent on image-salvaging PR after last year's faulty brake fiascos, the current recall is the latest of Toyota's mechanical missteps.

The affected make and models include mid-2000s Avalon, non-hybrid Highlanders, and Lexus sedans. Some owners were experiencing lit-up brake warning lights due to small amounts of leaking brake fluid. Toyota claims that the leaking only occurs when non-Toyota genuine fluid is used on a vehicle during routine maintenance. Apparently Toyota brand fluid contains polymers that offer a superior level of lubrication and subsequent leak protection.

If the fluid leaks, and the owner continues to drive while the brake cylinder is left under-lubricated, his/her break pedals will start to feel "spongy or soft" and braking performance will be compromised. While it seems perfectly forseeable that not all Toyota owners will exclusively utilize Toyota dealerships for their routine tune-ups, Toyota intends to notify all affected owners by mail and replace the brake cylinder cups on their cars with a brake master cylinder cup that does not warp even with non-polymer fluid.

Some sources say that Toyota received leak reports as early as 2005. Given the massive internal quality control changes that ostensibly flooded Toyota in the wake of Congressional hearings, consumers are left to wonder how many of these design defects are actually unique to Toyota or whether they continue to lurk undetected in the less-scrutinized factories of other carmakers.

If you believe you have purchased a defective vehicle, it is important for you to quickly contact a Kentucky attorney to learn more about your legal options.

October 31, 2010

Oldham County Doctor Sued For Sodomizing Client

Charles Miller of Miller & Falkner represents a thirty-eight year-old woman in a civil action alleging to be sodomized by her doctor during an office visit. The doctor has been charged with First Degree Sodomy in Oldham County, Kentucky Circuit Court.

After posting bond, Dr. Alur, 56, returned to his practice in Crestwood. While admitting that the incident occurred, Dr. Alure claims the act was consensual. Nevertheless, he told the police he was sorry.

In response to the Kentucky Medical Licensure Board's decision to allow Dr. Alur to keep his license, plaintiff's counsel Charles Miller responded, "It's shocking to me that a person who has admitted to sodomizing a patient or former patient would be allowed to continue to practice medicine."

October 27, 2010

Eleventh Circuit Decides in Favor of Families in Wrongful Death Case

The Eleventh Circuit ruled earlier this month in the case Bradley v. Sebelius, that Medicare is not entitled to proceeds from wrongful death settlements.

In 2005, Carvonella Bradley settled a wrongful death claim against the nursing home that housed her father Charles Burke and his ten surviving children. The case resolved prior to the Bradley family having to file a lawsuit for $52,500, the insurance policy limits. The estate notified the Health and Human Services of the settlement and subsequent probate hearing.

At the hearing, the court awarded $787.50 to the HHS. The agency challenged the probate court's decision arguing the that Medicare Secondary Payer Manual would provide the superseding law.

The HHS then demanded that the Bradley estate pay over $22,000.00. Bradley paid the agency, but ultimately appealed to the federal district court. The court of appeals reviewed the case to determine, "Whose property is the settlement?"

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October 7, 2010

FDA Warns of Baby Sleeping Devices

The Consumer Product Safety Commission, American Academy of Pediatrics, and Federal Food and Drug Administration issued a joint warning on Wednesday, September 29, 2010.

The warning urges parents to avoid using devices made to keep babies sleeping on their backs. According to the warning, these devices increase instead of preventing sudden infant death syndrome. sleeping baby.jpg

Sudden infant death occurs to approximately 4,500 babies annually. There are various ways parents can help reduce the rate of sudden infant death, including having babies sleep on their backs.

In response, a number of products are on the market to wedge babies into a sleeping position on their backs. Recently, however, several deaths have occurred on account of these devices.

The report was issued after the organizations reviewed about a dozen cases over as many years which involved these products including two happening recently.

While sudden infant death is often unexplained, it is a good to review with an attorney if a defective product could have contributed to such a horrible accident.

September 30, 2010

U.S. Supreme Court To Review Bayer Class Action

Attorneys who represent victims of defective products anxiously await to hear hour the United States Supreme Court decides the Baycol case.

The Court just announced that it will review fourteen cases in it's coming term, one being this Bayer Corp. class action. The case involves Bayer product, Baycol which went on the market in 1997 and is claimed to caused side effects including muscle toxicity which can lead to kidney failure and ultimately to death.

The plaintiffs from West Virginia, found their way to a Minnesota court where several cases had been consolidated. Bayer argues that a judge has already banned these lawsuits in 2005. The Supreme Court will now decide.

Products liability cases are very serious. If your life has been effected by a defective product, including a dangerous drug, it is important that you speak with an attorney to learn more about your rights.

September 26, 2010

Kentucky Family Sues Walmart

A Kentucky family filed a personal injury action against Walmart in Jefferson Count Court on Monday, August 16, 2010. The plaintiffs, Robert and Rosalind Grant, claim that they drank milk purchased at a Sam's Club over the course of three days, only to discover a dead mouse at the bottom of the container.

black_rodent.jpg According to the pleadings, the Grants purchased the carton of milk from the Sam's Club operating on Alliant Avenue on May 3. On May 5, they opened the container and proceeded to drink the contaminated milk for three days. Their granddaughter also consumed the milk. On the third day, Mrs. Grant found the dead mouse in the jug.

After finding the mouse, the Grants reported the incident to the Kentucky Department of Public Health. Their lawsuit alleges that they "suffered embarrassment, humiliation and emotional distress" and that their granddaughter suffered from blood in her stools.

According to the attorney for the family, "This has been a traumatic experience for the Grants.. They were completely shocked."

If you have been injured by a consuming a product, you should speak with an experienced products liability attorney to learn more about your rights.

September 15, 2010

Kentucky Supreme Court Affirms Case for Plaintiff

Kentucky Premises Liability attorneys are pleased with the Kentucky Supreme Court decision in favor of an injured plaintiff.

The case of Kentucky River Medical Center v. McIntosh, decided August 26, 2010 held that the open and obvious doctrine did not prohibit plaintiff's recovery in a slip and fall over a hospital curb. In the case, McIntosh worked as a paramedic. As she escorted a patient into the hospital, she tripped over the wheelchair ramp. McIntosh suffered from a broken hip and sprained wrist as a result of the accident.

Even though she had negotiated over the curb in the past, the trial court held that whether she should have been aware of the curb was an the issue was one of fact for the jury. The trial court decision was upheld by the appellate court.

If you have been injured because of dangerous premises, you should contact an experienced attorney as soon as possible.

August 26, 2010

Kentucky's Highest Court Awards Benefits to Commuting Pilot's Widow

Clarence Fortney made headlines four years after a tragic accident ended his life when the Kentucky Supreme Court found in favor of Fortney's wife. Fortney, a Kentucky resident, commuted to Georgia to perform his job as an airline pilot.

About ten times per month, Fortney would leave his Lexington home, board a Comair flight (Comair had a reciprocal arrangement with AirTran before the latter expanded to Kentucky) and arrive in time to pilot his assigned flights out of Atlanta. Fortney even split an Atlanta apartment with other commuter pilots for those workdays that required a brief stay-over.

Four years ago this Friday, Fortney was killed when the Comair Flight 5191 he caught in Lexington crashed upon takeoff.

Left to care for their minor son, Sarah Fortney filed for compensation benefits from her husband's company. AirTran refused to acknowledge liability, maintaining that Fortney was not acting within his scope of employment as an AirTran pilot at the time of his death.

The issue before the Kentucky Supreme Court hinged on whether Fortney's actions fell under the "going and coming" rule, a workers' compensation provision that insulates employer liability by deeming injuries arising from ordinary commuting risks as non-compensable.

Whether boarding a plane on your way into work is "ordinary" is a matter of perspective for AirTran pilots, 70% of whom reside in places other than Georgia. AirTran has no official residency policy.

AirTran argued that since it had no control over the operation of Comair's flights and Fortney benefitted personally from the air travel, his time spent in commute did not qualify for the rule's "direct service to the employer" exception.

An Administrative Law Judge (ALJ) initially agreed with AirTran, but the decision was reversed on appeal. The Kentucky Supreme Court confirmed that the ALJ's failure to consider whether AirTran's fitting the bill for Fortney's commute actually induced Fortney to take the AirTran job was reversible error. The Court determined that the low-cost travel arrangement benefitted Airtran by "accomplishing its purpose" of attracting employees.

Two dissenting judges questioned the teeth behind this "benefit". In any event, we are left to wonder whether the Court's ruling will induce current AirTran employees to start flying, rather than driving, to work.

If you or someone you love has been injured in Kentucky, you should contact an attorney to learn more about your rights.

August 21, 2010

Indiana Supreme Court Upholds Attorneys Fees In Medical Malpractice Case

Medical Malpractice lawyers are pleased with the August 18, 2010 opinion by the Court of Appeals of Indiana upholding the trial court's award of attorneys' fees and costs in a case brought under the Adult Wrongful Death Act ("AWDA"). The opinion of Hematology -Oncology of Indiana v. Fruits was written by the Honorable Judge May.

The appellant challenged whether the AWDA allowed for reasonable attorneys fees claiming that the "because the "express terms" of the AWDA "do not permit a claim for attorneys fees or litigation expenses." Hematology -Oncology of Indiana v. Fruits, Case No. 449A05-0910-CV-55649A05-0910-CV-556 (citing Br. of the Appellant, Hematology-Oncology of Indiana, P.C. (hereinafter "Hematology Br.") at 7.) The Appellate Court disagreed.

According to Judge May, the pertinent part of the AWDA, Ind. Code ยง 34-23-1-1, does not limit recovery to only damages for grief and punitive damages. Rather, the law reads that in addition to damages for grief and punitive damages, a plaintiff could be awarded damages which "may include but are not limited to the following." While attorneys' fees and costs are not enumerated in the statute, the statute does not limit recovery to only listed items of damages.

If you or a loved one has suffered because of negligent acts of a health care provider, it is important for you to speak with a medical malpractice attorney. A lawyer will be in the best position to evaluate what damages you are entitled to.

August 16, 2010

Big Changes To Trucking Hours

Trucking accident attorneys are anxious about the proposed changes to the truck driver hours of service rules which were sent to the White House for review on July 26, 2010. These proposed changes would limit truck driving hours to ten in a day, a change from the current eleven hour rule. The current limits have been in place since 2003. The Federal Motor Carrier Safety Administration will likely make a final decision about trucking hours by this time next year.

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Currently, truck drivers are allowed to drive a total of eleven hours each day, but are allowed to work a total of fourteen hours daily including loading, unloading and waiting following ten hours required off-duty time. The new proposed rules would allow drivers to work a total of twelve hours but limit driving time to only ten hours.

Consumer advocates have been pushing for even shorter driving times with some groups, such as Public Citizen, pushing for limits as low as eight hours. The rationale, of course, is that limiting truck driving hours will reduce extremely dangerous accidents.

If you have been injured in a trucking accident, a seasoned attorney should evaluate whether the driver was on the road for too long.

July 31, 2010

Danny's Law Changes Recalls for Parents

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Parents in Kentucky and Indiana should rejoice over Danny's Law, a consumer protection statute which recently went into effect. Starting on June 28, 2010, parents who purchase a covered product will be provided with a registration card which should be sent back to the manufacturer. In the event of a recall, the parents will be notified. The information provided to the company by parents can only be used in the event of a recall, and cannot be used for marketing purposes. Further, the product will have to be labeled with the manufacturer's name and address, model name and number, as well as the manufacture date.

This law effects eighteen product categories including:


  • full-size cribs

  • non-full-size cribs

  • toddler beds

  • high chairs

  • booster chairs

  • hook-on chairs

  • bath seats

  • gates

  • play yards

  • stationary activity centers

  • infant carriers

  • strollers

  • walkers

  • swings

  • bassinets

  • cradles

  • children's folding chairs

  • changing tables

  • infant bouncers

  • infant bathtubs

  • portable toddler bed rails

  • infant slings

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July 27, 2010

U.S. Consumer Product Safety Commission Issues Kids Safety Education Effort

Each year hundreds of children are injured or die because of negligent safety measures in and around swimming pools and spas. This year alone, more than 210 children have died in the United States since Memorial Day in pool related accidents. A 2008 report by the Commission stated that the "average number of drowning deaths involving children younger than 5 in pools and spas has increased from a yearly average of 267 (for 2002-2004) to 283 (for 2003-2005)." Further, "the average number of emergency room treated pool and spa submersion injuries decreased from an annual average of 2,800 (for 2004-2006) to 2,700 (for 2005-2007)."

1224249_lesson_of_swimming_4.jpg In response, the U.S. Consumer Product Safety Commission has introduced a kids education program which includes a video series featured on the Safe Kids website and the NDPA website. The videos feature Ming-Na, the voice of Mulan in the Disney film.

Many pool accidents are preventable and a result of negligence. Drowning accidents can occur at public pools, rivers and lakes, in the backyard, and even in the bathtub. These accidents happen quickly; in fact, a short submersion of four or five minutes can cause lasting brain damage.

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July 15, 2010

Kentucky Text Ban Effective Today

Today, a new Kentucky Law goes into effect banning texting while driving. Until January 1, 2011, drivers found in violation of the law will receive a warning ticket. After the new year, law enforcement will impose fines of $25 for the first offense and $50 for subsequent offenses.
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The law, of course, was imposed to curb distracted driving which has been cited by the United States Department of Transportation as significant problem on America's roads. According to one report, more than 57,000 crashes in Kentucky were attributed to driver distraction and inattention. According to Acting Transportation Secretary Mike Hancock,"The message to drivers is to eliminate distractions and stay focused on the road. Driving a motor vehicle requires your undivided attention."

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July 9, 2010

Kentucky Supreme Court Opinion on Products Liability

Kentucky products liability attorneys are not happy with the latest Kentucky Supreme Court case, Fluke Corporation v. LeMaster (Rendered March 18, 2010). The court reversed a 2008 Appellate decision which held that equitable estoppel barred a product manufacturer's statue of limitations defense because the company hid product defects from government regulatory agencies.

The case stems from an explosion injuring several people. After filing a lawsuit, the plaintiffs added another defendant, Fluke Corp., after the statute of limitations date had passed because they later learned that Fluke's defective voltage meter may have contributed to the accident. Fluke's summary judgment motion was granted and the plaintiffs appealed claiming Fluke's failure to properly comply with the Consumer Product Safety Commission bared their defense.

The Supreme Court reversed, holding that plaintiffs were not protected by the company's failure to properly report to the government agencies. Instead, the plaintiff was bound by the one-year statute of limitations for products liability cases. The plaintiff knew or should have known that there was potentially a problem with the voltage meter at the time of the accident.

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June 8, 2010

Probe into Chrysler Pedal Defects

Last month, the National Highway Traffic Safety Administration (NHTSA) opened an investigation to review a potential "sticky accelerator pedal problem" in Chrysler Group LLC's 2007 model-year Dodge Caliber cars. Reports of the accelerator pedal becoming stuck and not returning to the idle position when released have been made to the agency. The company that supplies these pedals, CTS Sorp., is also the supplier of the pedals involved in the Toyota Motor Corp's recall of more than 2 million vehicles in January of this year.

After one month of investigation, Chrysler has decided to initiate a voluntary recall of 34,631 Dodge Caliber and 90 Jeep Compass vehicles from the 2007 model year in order to address a potential issue with sticking gas pedals.

If you or someone you know has been involved in an accident in the 2007 model-year Dodge Caliber car or Jeep Compass, call the law office of Miller & Falkner so that an experienced personal injury attorney can help protect your rights.