May 15, 2014

Lincoln County, Kentucky, Officials Vow to Improve School Bus Safety After Accident Kills One Driver, Sends Two Dozen Children to the Hospital

Following a crash that left more than two dozen children injured, school buses in Lincoln County, Kentucky, will be investigated for school bus safety.

school-bus-red-light-655548-m.jpgThe accident occurred on May 7, when two school buses were riding along Kentucky 78 outside of Stanford. When the first school bus stopped due to traffic, the driver of the second bus, Judy Asbery, could not slow down in time to avoid collision. Instead, she swerved the bus into the oncoming lane of traffic and hit a white pickup truck head-on. Afterward, more than half of the 48 children on the bus had to be taken to local hospitals. Fortunately, none had life-threatening injuries, and most were released from the hospital that day. The 36-year-old driver of the other vehicle was not so lucky. He recently died due to injuries caused by the crash.

Kentucky 78 is known for causing a large number of vehicle collisions, but many thought that would change after it was recently rebuilt to be wider and straighter. Although the driving record of the bus driver was unavailable, Lincoln County school officials claim that there were no previous complaints about her driving. Now attention has turned to the safety of the Lincoln County school buses. The Kentucky Department of Education had conducted an audit on the county's transportation department three weeks prior and found that the bus conditions were "inefficient" and maintenance was considered to be "marginal."

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May 8, 2014

Indiana Woman Forgives Off-Duty Officer Who Caused a Crash That Killed Her Husband

A young Indiana woman who lost her husband in a car accident, and nearly lost the child she was carrying, has recently stated that she forgave the driver of the other vehicle. In early April, she gave birth to a baby girl just hours after her husband was killed.

car-accident-671890-m.jpgOn April 6, the young couple were driving in their 1996 Buick from church services when they were slammed into from behind by an SUV driven at 92 miles per hour. The impact caused their car to veer off of the road and slam into a utility pole. The other car was driven by an off-duty police officer, James Foutch of Edgewood, who was later found to be high on the anti-anxiety drug Xanax and the painkiller hydrocodone. While Foutch escaped without serious injury, the young couple were not so fortunate. The husband died almost instantly when he leaned over his pregnant wife to shield her from the impact of the crash. The young wife held him as he took his last breath.

She was later rushed to an area hospital, where the doctors -- fearing for her baby's life - delivered the baby via Caesarian section, before rushing her to another hospital to treat her broken bones and other internal injuries. The baby and her mother were reunited one week later, with the baby healthy and suffering no damage from the accident.

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May 1, 2014

Seventh Circuit Finds That Insurers Not Responsible For Injuries Caused By Energy Drinks Mixed With Alcohol

When someone sues for injuries from a vehicle accident and there is alcohol involved, the shop that served the alcohol might also get sued. If the shop is liable, its insurance company might pay at least part of the outstanding claims. However, when it comes to energy drinks containing alcohol, insurance companies have resisted making payments -- and the Seventh Circuit has supported them.

the-last-drop-1083566-m.jpgThe circumstances involving energy drinks are in some ways quite different from alcohol providers. Unlike alcohol providers, energy drink providers may have insurance carriers with a liquor liability exclusion. This becomes quite problematic for the energy drink providers because -- not surprisingly -- those who consume energy drinks with alcohol can become severely injured. In one recent case, Netherlands Ins. v. Phusion Projects, Inc., the company Phusion was a manufacturer and distributor of "Four Loko," a beverage that contained alcohol, caffeine, guarana, taurine, and wormwood. After one consumer drank it, he was unable to fall asleep for 30 hours and accidentally shot himself in the head. In another case, a passenger in a car was injured after the driver drank Four Loko and drove recklessly, at speeds above 100 miles per hour. In a third case, a consumer drank the beverage, had a fit of paranoia, and ran onto a busy highway, where he was struck and killed. Finally, in a fourth case, one consumer complained of heart problems after drinking Four Loko and blamed the beverage for his condition.

In all cases, there were lawsuits. Netherlands, the insurer, claimed that it was not required to compensate these cases due to the fact that there was a liquor exclusion. The Seventh Circuit ultimately agreed, finding that none of the tortious acts committed by Phusion were separate from the act of providing alcohol. Therefore, Phusion could not ask Netherlands to issue payouts for the accidents because of the alcohol exclusion. Phusion would be required to pay for the injuries itself.

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April 29, 2014

Federal Court in Kentucky Grants Motion For Summary Judgment in Product Liability Case

The following case demonstrates the importance of having some very basic evidence to back up your product liability claim. In In re Darvocet, the injured party, Judith Schiller, filed a claim stating that she had been harmed by ingesting prescription medication containing propoxyphene. Although she initially filed the case in federal court in New Jersey, it was moved to Kentucky for pre-trial proceedings.

pills-1111305-m.jpgThe defendant, Xanodyne Pharmaceuticals, filed a motion for summary judgment on the grounds that Schiller failed to provide evidence that her injury was caused by ingesting the pharmaceutical company's specific drug. Schiller failed to file an opposition to the motion.

The federal court noted that the threshold requirement for product liability under both Kentucky and New Jersey law was that the plaintiff assert that the defendant's product caused the injury. A defendant cannot be held responsible for an injury caused by a product it did not sell, manufacture, or otherwise supply to the plaintiff.

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April 22, 2014

Indianapolis Potholes Cause Deadly Accidents for Motorcycle Riders

In Indianapolis, potholes are not just a nuisance for drivers of all vehicles, but can also be deadly -- especially for those who ride motorcycles. Most recently, a pothole took the life of a Marion County sheriff's deputy.

missing-949720-m.jpgDeputy Eric Stofer, off-duty at the time, was riding southbound on Acton Road when his 2002 Suzuki motorcycle hit a pothole, causing him to lose control. Stofer was later found beneath his motorcycle, with no signs that any other vehicle was involved in the accident.

Potholes throughout the area have drawn 14,500 complaints this year -- or about 9,000 more than the previous year. Marion County is thought to have over 4,000 potholes. Indianapolis officials have been quick to note that crews of multiple workers are out each day, making sure the potholes are filled, and that the Indianapolis Department of Public Works has spent $1.4 million on labor and materials. Potholes usually occur when the snow and ice melt, with the resulting water seeping through cracks into the pavement, which later causes the pavement to rise and eventually break. Given the severe cold weather periods the state has endured, it is not surprising that the number of potholes has increased.

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April 15, 2014

Indiana Father and Two Children Killed in a Vehicle Accident on Interstate 65

Recently, an Indiana father and two of his children were killed in one of many crashes on southbound Interstate 65, caused in part by recent snowfall.

deformed-fence-3540-m.jpgThe father, a 45-year old doctor from Rensselaer, and his son and daughter were killed at 11:39 pm, three miles south of the Roselawn exit. His second son survived the crash and was later taken to Jasper County Hospital, having suffered broken bones. This was the same hospital where the father had been on staff.

The events of the crash began two hours earlier, when a semi truck rolled over in the southbound lanes of Interstate 65. The semi was being driven by a 57-year old from Wapakoneta, Ohio, and was filled with nitric acid. The driver had crashed into a median, jackknifed, and came to a rest on the driver's side, causing the nitric acid to spill. The driver and responding Indiana state trooper were both taken to a local hospital due to exposure to nitric acid fumes. Both were later released, and the police did not suspect drugs or alcohol of playing a role.

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April 8, 2014

Federal Court in Kentucky Permits Product Liability Lawsuit to Move Forward

In Manning v. Arch Wood Protection, Inc., a federal district court in Kentucky denied the defendant's motion to dismiss and allowed a product liability lawsuit to move forward.

electric-caos-1277648-m.jpgFred Manning had worked as a line mechanic on a line crew for Kentucky Power Company from 1990 until 2013. During that time, Manning claimed to have been exposed to toxic levels of arsenic that were contained in chromated copper arsenate, which is a substance that was used to preserve the wood in utility poles and cross-arms. This exposure allegedly took place while Manning handled, sawed, and drilled wood treated with chromated copper arsenate as part of his employment duties. Manning claimed that as a result, he had been poisoned and suffered resulting health problems.

Manning alleged that the defendant knew of the health hazards caused by exposure to chromated copper arsenate, but not only failed to warn of its danger, but also deceptively persuaded the Environmental Protection Agency to eliminate the proposed mandatory warning labels for wood treated by chromated copper arsenate. Moreover, despite knowing the hazards of exposure, the defendant allegedly claimed that treated wood could be handled in the same way as untreated wood. Manning claimed that the defendant knew, or should have known, that the wood's hazards would result in Manning's injury, as well as his wife's deprivation of the benefits of their relationship.

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March 27, 2014

United States Supreme Court Declines to Hear Consumer Class-Action Lawsuit Cases Upheld By the Sixth and Seventh Circuits

The United States Supreme Court recently passed on the opportunity to hear appeals on three decisions involving class-action lawsuits, two of which came from the Sixth and Seventh Circuit. The Supreme Court's choice could make it easier for consumers to file class-action product liability lawsuits in the future.

wasing-machine-110179-m.jpgIn each of the three cases -- Whirlpool v. Glazer, Sears, Roebuck and Company v. Butler, and BSH Appliances Corporation v. Cobb -- the issue involved washing machine defects. However, though lower courts in each case certified classes for a lawsuit, the defendants protested that not everyone in the class had suffered an injury because not every class member's washing machine had a defect. The defendants therefore appealed to the Sixth, Seventh, and Ninth Circuit Court of Appeals respectively, seeking to have the class certification overturned. The Circuit Courts upheld the lower courts' decision, prompting the defendants to petition the Supreme Court.

Now that the Supreme Court has denied the petitions for certiorari without offering an explanation, observers have speculated how this could impact future class-action lawsuits, product liability or otherwise. Many have looked to another Supreme Court decision, Comcast v. Behrend, which held for the first time that plaintiffs in a class-action lawsuit needed to show a connection between their theory of liability and their theory of damages at the class certification stage, as opposed to later in the litigation process. At the time, many defense attorneys believed that it would heighten the standard for class certification and make it more difficult. If so, that should have meant that at least two of the class certifications -- upheld by the Sixth and Seventh Circuit after the Comcast ruling came out -- would be invalid. However, the Supreme Court's choice to not review those decisions suggests that Comcast was not as earth shaking a decision as many believed. Comcast had involved an antitrust class-action lawsuit, not one involving consumer product defects. Therefore, while it would seem that the theory of liability and theory of damages connection would apply to every class-action case, it may be that in fact, it only applies to a narrow range.

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March 20, 2014

Two Kentucky High School Students Killed in Car Accident On the Way Home From Sweet 16 Tournament

Recently, two classmates from a Christian County High School were killed in a car accident while on their way home from the Boys Sweet 16 state basketball tournament in Lexington, where they had gone to watch a local high school team.

i-haul-299523-m.jpgThe accident occurred in the early evening, after the boys' Nissan pickup truck left the parkway and struck the rear end of a Freightliner tractor trailer that was parked on the westbound shoulder. One boy, age 16, died at the scene, while the other boy, age 17, was taken by helicopter to the University of Kentucky Medical Center, where he died hours later. The other male passengers in the truck were taken to the University of Kentucky as well by ambulance. While one remained in the hospital, the driver of the pickup truck was released.

Initial reports do not show any signs that alcohol or drug use played a role in the accident. Nor could witnesses recall that the truck was swerving or otherwise being driven in a reckless manner. When the truck came toward the tractor trailer, it may have either drifted or turned in its direction quickly. Authorities will soon conduct an accident reconstruction that they hope will shed light on how the accident occurred. The reconstruction team has already downloaded the data recorded that had been stored in the truck's internal computer to learn more information.

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March 13, 2014

Federal District Court Judge Rules That Brand Name Manufacturer Can Be Found Negligent For Warning Label On Generic Drug

Recently, a federal district court in Illinois ruled that GlaxoSmithKline could face liability for the suicide of a partner from Reed Smith, even though the partner took a generic version of the company's product, Paxil, instead of the named brand. This is significant, as for a long time, it has been an established belief that brand name manufacturers could not be sued for the flaws in the generic versions. This was the first case of its kind to be considered in the Seventh Circuit.

pills-1161455-m.jpgBack in 2010, six days after he began taking paroxetine hydrochloride for anxiety and depression, Stewart Dolin committed suicide. Dolin's wife, Wendy, then sued GlaxoSmithKlein and the manufacturer of the generic drug, Mylan Inc., arguing that they failed to warn adult users that the drug increased the risk of suicidal behavior. The Illinois district court judge, James Zagel, dismissed part of the lawsuit on the grounds that GlaxoSmithKlein could not be sued for product liability. However, he permitted the rest of the lawsuit to go forward on the issue of whether GlaxoSmithKlein was negligent.

The judge noted that negligence was still available due to a question of whether the warning label on the generic Paxil contained sufficient information highlighting the drug's dangers. His ruling deviated from nearly 90 other decisions on this subject, which found that the brand name manufacturers could not be held responsible for the generic's defects under any circumstances, even in the case of negligence. Only a handful of courts in California, Alabama, and Vermont had determined otherwise.

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March 6, 2014

Indiana Lawmaker and His Daughter Injured in a Car Accident

Recently, an Indiana lawmaker and his daughter got involved in a car accident on Ohio Street in downtown Indianapolis. Fortunately, neither was seriously hurt.

sirens-13324-m.jpgThe accident occurred on a weekday evening, when Representative David Niezgodski of South Bend was driving his Cadillac STS sedan with his 23 year old daughter, Rachael, when they suffered a broadside, right-angled collision known as a "T-bone." The other car was a Kia Sorento SUV headed south on Capital Avenue.

While the other driver, a 24-year old woman from Indianapolis, was uninjured and treated at the scene, Niezgodski and his daughter needed to be pulled from their car by the Indianapolis Fire Department. It reportedly took 15 minutes to extract Niezgodski's daughter from the car. The Niezgodskis were then taken to the nearby Eskenazi Hospital in critical condition.

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February 28, 2014

District Court in Eastern Kentucky Dismisses Case By Prisoner in Noble v. Three Forks Regional Jail Authority

Recently, in Noble v. Three Forks Regional Jail Authority, a Kentucky inmate sued the prison staff for, among other things, medical malpractice and intentional infliction of emotional distress.

breakout-740275-m.jpgArlie Noble was convicted in 2011 of possessing and distributing child pornography. Noble was sentenced and sent to the Three Forks Regional Jail until his release the following year. Noble allegedly suffered from diabetes and Crohn's disease, which required extensive treatment.

During his incarceration, Noble claimed that his rights were repeatedly violated, in that the staff gave him his diabetes medication in a manner contrary to his doctor's advice; and fed him doughnuts, honey buns, and other foods high in sugar that worsened his condition. As a result, Noble claimed to suffer from glaucoma, internal organ damage, and dysfunctional sugar levels. In claiming medical malpractice and intentional infliction of emotional distress, Noble cited state law. He sought past and future medical expenses, past and future expenses arising from emotional distress, and punitive damages. The Three Forks Regional Jail Authority filed a motion for summary judgment, arguing among other things, that Noble's state law claims were barred by sovereign immunity and otherwise failed as a matter of law.

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February 21, 2014

Indiana Court of Appeals Denies Injured Party the Right to Appeal Judgment in Durall v. Weinberger

The Court of Appeals of Indiana recently denied an injured party the opportunity to appeal a judgment against him in a medical malpractice case, Durall v. Weinberger.

doctor-patient-relationship-673854-m.jpgBeginning in 2001, Robert Durall sought treatment from Dr. Weinberger of the Merrillville Center for Advanced Surgery, LLC for sinus problems. He underwent several procedures on the advice of Dr. Weinberger, which did not correct his problem and which, Durrall later believed, may have been unnecessary. At some point, Weinberger fled the country as his practice collapsed. Durall then filed a proposed complaint with the Indiana Department of Insurance for medical malpractice against Dr. Weinberger, the Merrillville Center, and the Nose and Sinus Center, LLC. The Department's medical malpractice review panel concluded that the proposed defendants failed to meet the proper standard of care and there was a question of fact as to whether their actions may have harmed Durall.

Durall then filed a complaint in state court against Dr. Weinberger and the two corporations, claiming medical malpractice. The defendants filed a motion for summary judgment, asking the court to (1) limit the negligence claims solely to Dr. Weinberger; (2) bar Durall from recovering emotional damages caused by Dr. Weinberger's fleeing the country; and (3) dismiss Durall's claims as untimely. Finally a hearing was held in November 2012, and the court permitted Durall's claims to move forward, but limited his negligence claims to Dr. Weinberger and barred him from recovering emotional damages. Durall filed a motion to reconsider, and initially, in March 2013, the trial court issued an order certifying its November 2012 order for a discretionary interlocutory appeal. However, in April 2013, the trial court issued a stipulated order denying Durall's motion to reconsider and denying Durall the opportunity to file a discretionary interlocutory appeal. Durall then filed a request with the Court of Appeals to accept jurisdication of the discretionary interlocutory appeal.

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February 14, 2014

Sixth Circuit Finds That Manufacturer of Medical Patch Not Immune to Lawsuit in Miller v. Mylan, Inc.

A recent product liability case involving Michigan may have significance for the other states in the Sixth Circuit, including Kentucky. In Miller v. Mylan, Inc., the Sixth Circuit Court of Appeals found that a medical patch could be a "combination product" rather than a drug, making its manufacturer (and similar manufacturers) vulnerable to lawsuit.

pills-2-1160486-m.jpgThe case concerned a fentanyl patch, manufactured by Mylan, Inc., which is a generic version of Duragesic and intended to lessen pain. The patch had two parts: fentanyl, which was its active ingredient, and a "transdermal system," the patch that delivered the drug. The patch was placed on the patient's skin to provide doses of fentanyl to patients at regular intervals over a prolonged period. In the case of Beth Ann Kelly, however, the patch was blamed for giving her an excessive dose of fentanyl, causing her death.

Kelly's estate brought a lawsuit against Mylan in state court for negligence, negligent misrepresentation, product liability, warranty, fraud, and the Michigan Consumer Protection Act. Mylan had the case removed to federal district court and claimed that it was immune from lawsuit under a Michigan statute that gave immunity to the manufacturer of drugs. The court sided with Mylan in finding that the patch was a drug. Kelly's estate then appealed to the Sixth Circuit, arguing that the patch was not a drug as referenced in the statute.

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February 4, 2014

Winter Accidents Continue As Sudden Whiteout on Indiana's Interstate 94 Leaves 3 Dead, 20 Injured

Soon after the Interstate 65 accident happened, one of the most severe car accidents in Indiana history took place, also the result of unprecedented winter weather the past month.

snow-1336027-m.jpgInterstate 94 in northern Indiana became the scene of vehicle wrecks a mile long, the result of a chain reaction that included four dozen cars, among them several tractor trailers. In the end, three people were killed and two dozen were injured. The accidents were attributed to whiteout conditions that swept into the area during the afternoon commute. The burst of heavy lake-effect snow dropped one to two inches of snow per hour and reduced visibility to less than a quarter of a mile. Just 20 minutes earlier, state workers had plowed and salted the interstate, but the change in conditions rendered those efforts moot. The conditions took commuters by surprise, and within less than one minute, dozens of vehicles were colliding into each other.

Conditions were so poor that the crew of volunteer firefighters could not even see many of the cars that had been hit. Many were crushed between semi-trailers and so stuck to the other vehicles that it was tough for rescue workers to differentiate them. Despite the heavy snow, though, many of the vehicles were burning.

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