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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January 28, 2014

Heavy Snow Conditions Lead to 30 Vehicle Collisions on Interstate 65 in Indiana

Recently, heavy snow on Interstate 65 near Lafayette, Indiana led to conditions where 13 vehicles, including nine that were semi trailers, crashed. They were followed by several smaller car collisions. In total, as many as 30 vehicles are thought to have crashed in a relatively short amount of time.

snowy-road-1415295-m.jpgAt the time these collisions occurred, there might have been as many as four inches of snow on the ground. Winds were blowing at nine miles per hour, and with the fog and snowfall, there was just three-quarters of a mile of visibility.

The resulting crash does not appear to have resulted in serious injuries or fatalities, but did tie up traffic in both directions, forcing the interstate to close for several hours. Firefighters were called to put out the flames surrounding a couple of semi trailers.

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January 21, 2014

Kentucky Legislators to Consider Bill That Creates "Cell Phone Free" Zones

Kentucky state legislators are considering adopting a law that would ban drivers from using cell phones near schools and in highway work zones. Although the state already has bans on cell phone use for drivers age 18 and younger, and bans texting for drivers of all ages, Kentucky legislators want to make the existing laws even tougher. Governor Beshear has called for the state to adopt "no cell phone zones."

busy-woman-1070268-m.jpgLegislatures were moved to action based on a story involving a horrific accident on Labor Day in 2007. Hillary Coltharp, age 26, made the mistake of trying to respond to a text while driving. As a result, she lost control of her car while driving on Highway 24 in McCracken County and suffered a crash. Her car crossed the median and rolled three times before she was thrown 75 feet from her car. She landed on her head and suffered severe brain trauma, a skull fracture, a collapsed lung, and broken bones. Coltharp was not wearing a seat belt. She was just four miles away from meeting her family at a restaurant for dinner.

While Coltharp survived the accident, she spent five years in and out of hospitals and rehabilitation facilities. Her parents have made her story public in their attempt to prevent this tragedy from happening to another family.

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January 14, 2014

Kentucky Jury Finds in Favor of Nursing Home in Nursing Home Arbitration Case

A jury in Madison County recently found that a nursing home patient who died had the capacity to understand the arbitration agreement in the contract that she signed in 2011.

wheelchair-945156-m.jpgNora Chapple died at the age of 80 in the Kenwood Health and Rehabilitation Center in Richmond, where she had lived on two occasions since 2011. After Chapple's death, her family sued the nursing home for wrongful death, but attorneys representing Extendicare, the company that ran the Kenwood facility during that time, asked the circuit court judge to dismiss the lawsuit because Chapple's contract required mediation, then arbitration of disputes. Chapple's family charged that no one else was present when Chapple signed the contract and that she lacked the necessary mental capacity to understand the terms.

During the trial, the family claimed that both times Chapple was admitted to Kenwood, she was heavily medicated due to a broken hip and severe depression. Jurors heard the testimony of Chapple's physician of 11 years, medical experts, and the administrator who was on hand when Chapple signed the paperwork for admission. After two hours of deliberation, the jury found in favor of the nursing home's argument that Chapple had capacity to sign the agreement. Now the question remains whether the decision will be appealed to a higher court.

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January 7, 2014

Sixth Circuit to Consider Whether Generic Drug Manufacturers Can Be Sued in Miller v. Eli Lilly Co.

The Sixth Circuit Court of Appeals has a notable case coming up regarding product liability and generic drugs. In Miller v. Eli Lilly & Co., the court will consider whether those harmed by generic drugs have the right to file lawsuits against their manufacturers.

pills-1213599-m.jpgRecently, the United States Supreme Court held in Mutual Pharmaceutical Co. v. Bartlett that manufacturers of generic drugs enjoyed tort protections due to the fact that generic drugs shared the same label as drugs originally approved for use by the federal Food and Drug Administration (FDA). Because the FDA approved the original drug and drug label, individuals injured by side effects of the generic drug could not sue generic drug manufacturers under state product liability laws.

However, this ruling included a footnote that stated it did not apply to design defects in the generic drug that paralleled the federal misbranding statute. As such, plaintiffs in Miller used the footnote as the basis of their request that the Sixth Circuit determine whether makers of the generic version of Darvocet and Darvon painkillers can be found liable for causing severe heart damage. Darvocet was originally taken off of the market in 2010 after concerns that it was addictive and had side effects like irregular heartbeat and kidney problems.

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December 23, 2013

Indiana Man Survives Crashing Car and Wrapping It Around a Tree

Recently, Indiana emergency responders spent two hours freeing a man trapped inside his wrecked car while near a ravine. Fortunately, the man survived.

crash-car-1-748020-m.jpgThe incident began when the 47-year-old driver was traveling along Old Indiana 25 near Tippecanoe County Road 500 North. He was moving southbound when his car partially ran off the side of the road. The driver then overcorrected by shifting his car too far to the left, then veered right. As a result, witnesses say that his car tumbled down the side of the road, smashing into trees, before rolling to a stop and wrapping around a tree.

Witnesses believe that the man was still alive after the crash due to the slow "cartwheel" his car did down the side. Once he was spotted, a local couple climbed down to the ravine, where they found the driver alert and coherent, but physically trapped. Only his head was visible due to the car's position near the tree. Although the driver had a cut above his eye, he did not appear in serious danger of losing blood. The couple stayed with the driver and did their best to keep him calm until an emergency crew from the Buck Creek Volunteer Fire Department came. Emergency crew members could not tell which part of the car was the front end or back end, and needed to contact the fire departments in Lafayette and Battle Ground for assistance.

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December 17, 2013

Indiana Man Struck and Killed Hours After Getting Married

In recent tragic news, an Indiana man who had been married just hours earlier got killed when he tried to help a stranded motorist. The stranded motorist was also killed in the accident.

wedding-cake-933687-m.jpgThe groom and bride were driving to their hotel from the wedding reception along 109th Avenue in Crown Point, Indiana just before midnight. There, they saw that a car had skidded off of the snowy road into a ditch along the side. The groom parked in a driveway and went to help the stranded motorist. He had just helped her up the steep embankment when a car driving eastbound struck both of them, as well as the next two cars after that. No citations were issued to any of the drivers, and investigators at the scene did not find anything to suggest that alcohol or drugs were a factor.

The groom was a U.S. Army Ranger in the 82nd Airborne Division for 12 years, whose tours of duty included Desert Storm. He was known for being a generous person who would stop and help anyone, regardless of the circumstances. He leaves behind his bride, two daughters, and a step-daughter and step-son. The stranded motorist was a popular teacher at a local school who was known for her commitment to education and for using technology to promote learning.

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December 10, 2013

Indiana Man Arrested After Hitting a Car and Then Fleeing in a Semi Truck

An Indianapolis man has been arrested and faces charges after first rear ending a vehicle, then attempting to escape by hitching a ride on a semi truck.

truck-delivery-1042539-m.jpgIn the early morning on Sunday, law enforcement was called to the scene on the report of a hit and run accident on Interstate 65 heading northbound. According to witnesses, a 2005 Dodge truck was speeding along at 100 miles per hour when it rear ended the other vehicle. Soon after, the 47-year old driver of the truck and his passenger left the scene of the accident and got into a semi truck that was stopped nearby. A witness tried to warn the semi truck driver to leave the two men, but when he did not listen, the witness contacted the police. The police pulled over the semi truck, and the driver explained that he thought the driver and passenger were in need of medical assistance.

The driver reportedly had a blood alcohol level of 0.16, twice the legal limit of intoxication in Indiana. He allegedly tried to hitch a ride with several cars before the semi truck finally pulled over. Meanwhile, the driver and passenger of the other car were taken to a local hospital with injuries that were not believed to be life threatening.

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December 3, 2013

Rate of Indiana Workplace Accidents Declines For the First Time in Three Years

A recent report from the Indiana Department of Labor provided some good news for the state: its rate of workplace accidents fell by seven percent in 2012, the first time the accident rate has fallen since 2009. The bad news is that Indiana continues to lag behind other states in workplace safety.

hard-hat-sign-3-714043-m.jpgAccording to the state's Department of Labor, Indiana's nonfatal occupational injury and illness rate dropped to its lowest level on record since 1992, when the government first began surveying the rate of injuries and illness. This amounted to four out of every 100 workers sustaining a workplace injury or illness in 2012. Likewise, agricultural injuries and illnesses dropped by 24.2% last year compared to 2011, health care-related injuries and illnesses fell by 15.9%, and transportation-related injuries and illnesses dipped by 2.2%.

One reason is because the Indiana Department of Labor has been steadily focused on improving safety in the above areas. That is important, especially because the healthcare industry has grown to become the second-largest employer in Indiana, agriculture injuries account for the highest percentage of injuries, and transportation has the highest rate of deadly accidents.

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November 27, 2013

Kentucky's Governor Vows to Take Action to Improve the State's Nursing Home Care

Kentucky's Governor Steve Beshear has vowed to improve the quality of care in Kentucky nursing homes after the state was ranked 40th out of 50 in states with quality nursing care. In a letter to nursing home advocate, Kentuckians for Nursing Home Reform, Governor Beshear stated that he would call for open forums throughout the state, which would give nursing home residents and the general public the opportunity to make suggestions for improvements. Governor Beshear stated that he would also work with the state's Elder Abuse Committee to come up with solutions over the coming months, and would ask those who work for the Cabinet for Health and Family Services to determine the impact of increased nursing home staffing in the state.

reading-with-grandmother-in-wheelchair-801960-m.jpgKentucky's low ranking came from an advocacy group based in Florida called Families for Better Care. The group gave each state a grade from A to F depending upon the quality of their nursing home care, with Kentucky receiving a D. During that time, two other reports have come out that signal the trend of long-term care. One was a 2012 actuarial report issued by Aon Risk Solutions, which states that on average, the care operator of a 100-bed facility pays $154,000 in liability costs each year, but in Kentucky, that average is $535,000 per year.

Advocacy groups have praised Governor Beshear's willingness to address the problem. One advocate from Kentuckians for Nursing Home Reform stated that the governor's recommendations for taking action are a "historic first step" toward improving long-term care in Kentucky.

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