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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November 20, 2013

Kentucky Woman Struck and Killed By Train in West Virginia

Recently a 50-year old woman from Kentucky was killed in Shepherdstown, West Virginia, after being struck by a train. At close to 10 pm at night, the woman apparently was crossing the tracks when she was struck by a northbound Norfolk Southern train near the East German Street crossing and South Mill Street. Although emergency medical personnel reached her a short time later, it was too late and the woman was soon pronounced dead.

railway-tracks-1428076-m.jpgThe tragic accident is being investigated, and early reports suggested that the woman was walking with a man on the tracks. However so far, the Shepherdstown police, the West Virginia State Police, and other law enforcement agencies have been unable to find a second victim, or information on where a second person might have gone. It is believed that no foul play was committed.

The Shepherdstown police chief issued the following warning to residents of the area: do not walk on or near the train tracks. One reason is because the trains and their cars are wider than the tracks, so even those who are not on the tracks are still capable of being struck if they are too close to where the tracks lie. Furthermore, it may be possible to misjudge the speed at which the train is approaching, especially during times of darkness. All the individual may see is a light coming closer before the fatal collision.

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November 15, 2013

One Indiana Man Killed, Two Injured in a Steel Mill Accident

Recently, an iron worker from Valparaiso was killed and two others were injured in an accident at the ArcelorMittal Steel West Indiana Harbor. The 39-year old victim was a contract iron worker associated with Iron Workers Local 395 in Merryville. Details about the accident remain unclear, but the victim allegedly died of blunt force trauma near the steel mill's oxygen furnace caused by a falling metal plate. The other two workers -- also contract iron workers -- were transported to a hospital in East Chicago with injuries that were not considered life threatening.

worker-1-week-169773-m.jpgArcelorMittal personnel, along with United Steel Workers, the East Chicago police, and the Indiana Occupational Safety and Health Administration are all currently investigating the situation. They will see whether any corrective measures need to be taken. The victim is survived by a wife and three children.

In situations where a worker is injured during the course of employment, the worker usually receives workers compensation payments until he or she can return to work. That is because most states (including Indiana) require that employers carry workers compensation insurance; if an employer complies, then injured workers are required to accept workers compensation payments and waive their right to file a lawsuit. In some respects, this arrangement benefits the workers, who can collect payments, in most cases, regardless of fault and without having to pay the expenses of litigation.

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November 6, 2013

Indiana Bar Owner and Bar Tender Charged With Serving Alcohol to Underaged Drinkers Before Their Deaths

The owner of a bar in Armstrong County and his bartender waived their right to preliminary hearings and will likely file pleas in a case where they have been charged with serving alcohol to minors. Larry Pompelia, owner of The Final Score Saloon, and Karly Ann Good, the bartender, allegedly served three men who were younger than the legal age, prior to their pickup truck plunging into a pond, resulting in their deaths.

beer-glass-1252046-m.jpgThe three friends, who were 19 and 20 years of age, were headed to a party when the 19-year old driver became disoriented while driving his truck up a steep hill, which then overturned in a muddy overflow pond, just after midnight. Pompelia and Good were later charged with two misdemeanors for selling alcohol to minors. Pompelia waived a hearing on separate charges involving tampering with evidence, where Pompelia allegedly erased video footage that showed the three men drinking at The Final Score Saloon.

Both Pompelia and Good may have plea bargain deals in the works that would allow at least one of them to be admitted into Indiana's Accelerated Rehabilitative Disposition program for non-violent first-time criminal offenders. Those enrolled in the program do not need to enter a guilty plea, and whoever successfully completes the probationary period can petition to have his or her record expunged.

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October 30, 2013

Federal Judge Permits Kentucky Product Liability Class Action Suit to Move Forward in Naiser v. Unilever United States, Inc.

A federal court in Kentucky recently allowed a class action lawsuit to move forward against Unilever United States, Inc. (Unilever), LEK, Inc. (LEK), and Conopco, Inc. (Conopco) in Naiser v. Unilever United States, Inc. The case involves a hair product sold as Suave Professionals Keratin Infusion 30 Day Smoothing Kit.

hair-care-2-189882-m.jpgKentucky residents argue that they purchased the hair product from different retail stores across the state, based on representations that it was not a chemical relaxer, that its effects would not last beyond 30 days, that it did not have any formaldehyde, and that it was overall a safe product. In fact, the representations were false, in that the hair product actually contained a toxic mixture that caused major hair loss, scalp burns, and other harmful effects. The residents further argue that there was absolutely no warning that they could be at risk for such problems. Naiser, the named plaintiff, spent $10 on the initial product and then $2,000 on conditioners and haircuts after she began experiencing breakage and hair loss. Although the product was recalled in May 2012, the plaintiffs in the class action suit argue that Unilever continues to claim that the product was safe, and that it was recalled due to consumer misuse. The plaintiffs claim that Unilever, LEK, and Conopco manufactured, distributed, and promoted an unreasonably dangerous product.

Unilever and Conopco then filed motions to dismiss under 12(b)(6) of the Federal Rules of Civil Procedure: failure to state a claim upon which relief can be granted. Chief Judge Joseph McKinley of the U.S. District Court of the Western District of Kentucky reviewed the claims in the case of Unilever only. He first looked at the argument that the Kentucky plaintiffs had failed to pinpoint the exact affirmations of fact or promise made that the product was safe. He found that the product's packaging, which promoted it as a "smoothing" product rather than a chemical relaxer, did amount to an affirmation of fact. He also found that an affirmation of fact or promise was made regarding how long the product would last: the packaging is described as a "30 Day Smoothing Kit," and that the smoothing lasts "up to" 30 days. Finally, Judge McKinley found that the plaintiffs pled enough facts to indicate that the defendant misled them into thinking the product was safe.

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October 23, 2013

Three People Die in Indiana After Their Truck Collides With an Oncoming Train

Recently, three people died in Vigo County, Indiana after a train crashed into their truck as they tried to cross the tracks. The three Illinois natives were 30, 24, and 20 years old respectively.

railway-tracks-1428076-m.jpgThe accident occurred around two o'clock in the morning, when a northbound train struck the vehicle at the intersection of Gallagher Road and Rio Grande. Vigo County Sheriff's deputies later found that two of the individuals had been ejected and pinned under the truck. Now the question is what caused the accident.

Authorities have noted that the flashing lights and gates were working at the time of the accident. Some evidence has been found that the truck was traveling at a high speed, and containers of alcohol were found in the vehicle. While it is too early to determine whether alcohol was an important factor, authorities have already determined another one, which is that none of the individuals was wearing a seatbelt. Further investigation, including from the train's black box, will reveal whether the train engineer bears any responsibility for the collision.

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October 15, 2013

Jury Selected for Case Involving an Indiana Police Officer Who Killed a Motorcyclist While On Duty

A jury has been selected in Fort Wayne, Indiana for a trial involving a state police officer accused of crashing into two motorcycles with his car while intoxicated.

crash-car-1-748020-m.jpgIn 2010, while rushing to help catch a suspect, David Bisard of the Indianapolis Metropolitan Police Department slammed his police cruiser into a pair of motorcycles, killing one rider and injuring two others. He had allegedly been driving on East 56th Street at speeds as high as 73 miles per hour, and his blood alcohol level was later found to be .19, more than twice the legal limit.

Since then, Bisard has been charged with six felony counts, including operating a motor vehicle with a blood alcohol level higher than .15. He was suspended from the police department, although attempts to have his driver's license suspended were unsuccessful.

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October 2, 2013

University of Kentucky Tries to Dismiss Medical Malpractice Suit By Man Who Claims He Was Misdiagnosed With HIV Eight Years Ago

A Kentucky man has filed a lawsuit against the University of Kentucky Medical Center, claiming that the medical staff misdiagnosed him with HIV back in 2004. The University of Kentucky has requested that the Fayetteville Circuit Court dismiss the case.

hospital-1031747-m.jpgIn 2004, Bobby Russell went to the University of Kentucky emergency room with symptoms including a sore throat, fever, and open sores and wounds. After undergoing testing, Russell was diagnosed with HIV and started on an antiretroviral medication that seemed to suppress the illness. The only problem was that in 2012, Russell underwent more testing at Bluegrass Care Clinic, an infectious disease and HIV/AIDS clinic that is affiliated with the University of Kentucky's medical school. There, he learned that he did not have HIV.

Russell argues that none of the University of Kentucky Medical Center's staff ordered the full spectrum test for HIV, and thus did not take reasonable care. Meanwhile, the University of Kentucky's spokesmen argue that proper testing was conducted back in 2004, and that using proper testing techniques, Russell was properly diagnosed with the HIV virus. The University of Kentucky Medical Center took every precaution to ensure that Russell's illness did not progress. The University of Kentucky also asked for the court to dismiss the Medical Center and Bluegrass Care Clinic from the case because the Kentucky Supreme Court had established that the university was entitled to sovereign or government immunity from medical malpractice claims.

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