Recently in Cases in the News Category

October 24, 2014

Kentucky Forklift Operator Killed In Work Accident

Early this week, a Kentucky forklift operator was involved in a fatal workplace accident. A local newspaper reported that the woman was only employed with her employer for approximately two weeks when the accident occurred. An investigation has yielded information indicating that some part of the machinery malfunctioned, which resulted in the accident. Employees who witnessed the accident explained that the woman was operating the forklift in the driver's position when it continued to move upwards, eventually decapitating her. Sadly, the woman was only in her 20s, and she was the mother of a young child. The company explained that it is still investigating the accident.

forklift-1-1125238-m.jpgManufacturer Liability

In many personal injury cases, individuals are not only injured by the negligence of an individual person but by a defect in a product or part of a product. In the above case, the victim may pursue her company for negligence, but she may be able to bring a suit against the manufacturer of the forklift that malfunctioned as well, or her company may choose to do so.

In Kentucky, product liability follows the rules and regulations put forth by the Kentucky Product Liability Act. Individuals or their representatives may bring a suit for product liability if they are injured, or if it results in their death or damage to their property. The suit can be based on things such as the design, manufacture, and assembly of the product.

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September 23, 2014

Expert Witness' Testimony Excluded in Accident Case

Earlier this month, the Eleventh Circuit ruled that a lower court's ruling to exclude an expert's testimony was appropriate under the circumstances.

sunset-run-1427546-m.jpgBackground

Back in 2005, a woman was killed in Tennessee after an accident with a semi-truck. The woman was driving a Kia that was not equipped with a fuel shut-off switch.

Her mother brought a wrongful death suit against Kia Motors, claiming that they should have equipped the car with a fuel shut-off switch. She claimed that the Kia was inherently dangerous because of the airbag system and the lack of the fuel shut-off switch. Additionally, she claimed that Kia should have warned consumers about the unreasonable dangers.

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August 18, 2014

Transportation Company Found Liable for Driver's Negligent Acts

When an employee acts negligently and causes injury to another person, sometimes the employer of that employee can be held liable in a Kentucky personal injury action. That is exactly what happened in a recent case in front of the Supreme Court of Kentucky.

handicapped-410035-m.jpgMV Transport v. Allgeier: The Facts

Back in 2006, Allgeier was a passenger on a para-transit bus that was fitted with a lift to help passengers with boarding and exiting the bus. The ramp, under normal conditions, operates to lift people in wheelchairs from the ground onto the passenger level of the bus, and vice-versa.

On one occasion, however, the lift malfunctioned and there was a gap between the bus and the metal plate of the lift. The bus driver failed to see the gap and allowed Allgeier to attempt to disembark the bus, although it was unsafe to do so. As she tried to disembark, Allgeier's wheelchair got caught in the gap, and she eventually fell onto the ground below, shattering both femurs.

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August 4, 2014

Recent Case Involving Amputated Penis Resembles Kentucky Case From 2011

Before undergoing any sort of medical procedure, patients are typically supposed to provide what is known as "informed consent." Informed consent means that all patients should understand and agree to the potential consequences of their care. While Kentucky recognizes exceptions to the rule, such as in certain emergencies, a physician who performs a procedure without the patient's informed consent may be liable for medical battery.

surgical-instruments-1183621-m.jpgRecently, an informed consent case arose in the news regarding an amputated penis. Although the case was in Alabama rather than Kentucky, it raised parallels with a case in Kentucky that was decided in 2011. In the current case, an Alabama man had a medical procedure for a circumcision at Princeton Baptist Medical Center and later learned that surgeons had amputated his penis. The patient, Johnny Lee Banks, claims that he never gave his informed consent to a complete or partial amputation procedure. Banks and his wife are now suing the Medical Center and the two doctors who performed the amputation, seeking damages for pain and suffering, medical bills, and loss of consortium, among other things. Meanwhile, the defendants have filed a motion to dismiss the case, stating that the allegations were false and that neither doctor performed a circumcision or removed any tissue from Banks' penis.

The case is very similar to one in Kentucky that was decided a few years ago. Informed consent under Kentucky law mirrors the requirements of other states. Back in 2007, a Kentucky man was undergoing a circumcision to treat inflammation when the doctor performing the procedure found a potentially deadly cancer on his penis. The doctor removed less than an inch of the penis, and after a pathologist confirmed the cancer diagnosis, a second doctor removed the rest of the penis. The doctor claimed the man had already provided permission to take any treatment action, and that there was no other reasonable option available to prevent the cancer from spreading other than removing the penis. However, the patient sued the doctors, claiming that they had amputated his penis without his informed consent and without allowing him to seek a second option. In 2011, the jury ended up siding with the doctors.

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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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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 20, 2012

Midland Texas Train Crash a Tragedy

One cannot look online or read a newspaper without seeing an article about the tragic accident in Midland, Texas. Numerous war veterans and their spouses were riding on a parade float being pulled by a semi-truck when it was hit by a train. Four veterans lost their lives and several other people were injured. As the victims and their families try to put their lives back together, investigators are trying to determine what caused this tragic accident.

One of the things they will examine is the train itself. Was it working properly? Did the horn sound at the appropriate time, at the right volume, for the length of time required? Were the brakes and other components of the train in working order? They will question the conductors and engineers who were on board when the train crash occurred about what they witnessed and if they noticed anything that may have contributed to the crash.

Investigators will also examine the tracks and crossing gates. Initial reports are stating that the lights were flashing and the crossing gate bells were ringing before the truck attempted to cross the tracks. But witnesses say they don't think the crossing signals and gates are activated soon enough to allow enough time for the gates to be completely down before the train crosses the intersection. News reports have discussed that the speed of the trains at this crossing has increased over the years, and maybe the gates have not been adjusted to take this change into account.

The investigators will also thoroughly investigate the truck that was pulling the float when the accident occurred. The truck was donated by a local Texas company and was driven by a fellow military veteran. The driver of the truck will be interviewed and his background will be checked to make sure he had the proper training to be driving the truck. He will most likely be asked if he heard the warning bells at the crossing or saw the flashing lights or gates. The company that owned the truck will be questioned as well.

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May 6, 2012

As Personal Injury Lawsuits in Indiana Stage Collapse Continue, New Regulations Take Effect

The 2011 tragic stage collapse at the Indiana State Fair in Indianapolis continues to affect numerous people - those who lost loved ones, those who were injured, and those who may or may not have been at least partially responsible for the accident. In an attempt to figure out who other than Mother Nature was responsible, the State of Indiana contracted with two different firms, one to study the stage and the other to review what preparations were made in case of an emergency. The firms were also asked to give recommendations on how the state could prevent tragedies like this at future events.

According to one report, the fair board and Indiana police approached Sugarland, the band waiting to perform, about postponing the show more than once. Each time they asked, they were told the band did not want to postpone the show. However, during a deposition, one of the band members said she was never approached by anyone about cancelling or postponing the show, so attorneys are now looking at the band's touring manager as the one who may have put the concertgoers' lives at risk. The same report also faulted the fair board for not having a clear safety plan or chain of command in case of an emergency.

The other report found fault with the stage design. It was not built to withstand the high winds that brought down the stage rigging on the crowd. Over $80,000 in fines have been issued by the Indiana Department of Labor, including about $63,000 against Mid-America Sound, which built the stage for the fair. As a result of this accident, the Indiana Fire Prevention and Building Safety Commission passed new regulations regarding temporary stages for outdoor events in Indiana at the beginning of May this year. Larger venues will be required to have their stages and rigging plans reviewed by an engineer and will have to provide documented emergency plans. Those smaller fairs or festivals that most likely could not afford the additional cost of an engineer's review would be required to leave additional space between the stage and the crowd. An eight-foot area between the between the crowd and the tallest height of the rigging would be necessary to avoid being in violation of the regulations.

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February 29, 2012

Family of Kentucky Nursing Home Neglect Victim Awarded $8 Million

A retired doctor was living in Treyton Oak Towers nursing home in Louisville, Kentucky. The resident allegedly suffered from osteoporosis and had a care plan in place regarding how he was to be moved. A care plan is often created by a hospital or physician when a nursing home or assisted living resident requires care that differs from the normal care given by the facility. In this case, the attorney for the resident alleged that his care plan called for two assistants to be used when moving him.

In September 2008, the victim's family claims he was moved by only one person without the use of a lift and that both of his legs were broken during the move. Because he had previously suffered a stroke, he was unable to tell anyone about the pain he was suffering. The lawsuit filed on his behalf stated that the nursing home attempted to cover up the situation and that his broken legs were not discovered until September 24, 2008. He was transferred to a hospital for the broken bones, and was later relocated to a different nursing home. He succumbed to his injuries on November 3, 2008.

While the attorneys for the nursing home tried to convince the jury how much the victim meant to them, and that he was never abused or neglected, the jury still found in favor of the victim, awarding his estate $8 million in damages. Of this total, $1 million was awarded because the nursing home violated Kentucky's nursing home statute. Numerous patient rights are covered by KRS 216.515, the statute that covers the rights of residents and the duties of the facility. The lawsuit in this case may have included the violation of one or more of the following sections:

Section 6 - "All residents shall be free from mental and physical abuse..."

Section 19 - "Every resident and the responsible party...has the right to be fully informed of the resident's medical condition..."

Section 22 - "The resident's responsible party or family member...shall be notified immediately of any accident, sudden illness, disease, unexplained absence, or anything unusual involving the resident."

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January 18, 2012

Louisville, Kentucky Settles More Personal Injury Lawsuits from Zoo Train Derailment

1350732_train_tracks_1.jpgOn June 1, 2009, a small passenger train that has run for many years around the perimeter of the Louisville Zoo in Kentucky derailed, spilling all of its passengers out of the cars. While there were no fatalities, 22 people, including 17 children, were sent to hospitals with injuries. Multiple personal injury lawsuits have been filed as a result of this accident.

Shortly after the accident, lawsuits were filed by multiple plaintiffs against different defendants, including Chance Rides Manufacturing, Mary Coffey, and the Louisville Zoo. The first defendant, Chance Rides Manufacturing, is the company that manufactured and sold the train to the zoo. Claims against the company are likely product liability claims, which state that a company knowingly has manufactured and distributed a dangerous or faulty product that has caused property damage or personal injury. Mary Coffey was operating the train when it derailed. She has been charged with negligence in some of the cases based on reports that the train was going too fast and that she was not experienced enough to be running the train when the accident occurred. The lawsuits against the Louisville Zoo could contain a variety of charges including negligence for allowing Ms. Coffey to operate the train without proper training and not properly maintaining the train or the tracks. A couple of the lawsuits also included restraining orders in an attempt to prohibit the zoo from moving the train before it could be examined by experts hired by the plaintiffs.

Over $500,000 has been paid by the city of Louisville to settle 23 claims, including $150,000 this month. This amount does not include legal fees, which are upwards of $175,000 already. Some of the largest claims are still to come, including one filed by a family that had four individuals injured. The father suffered serious injuries to his legs and has already incurred over $350,000 in medical expenses. Damages in this type of case typically will not only include medical expenses, but also lost wages, loss of future earnings, and compensation for emotional distress for both the victim and his family. Considering the extent of injuries and number of people involved, the award in this case may end up being in the millions. This claim is one of six remaining claims that will most likely be mediated and settled without a trial.

The Kentucky Department of Agriculture investigated the accident. The department's final report noted excessive speed, an inexperienced driver, and the poor condition of the train as the most likely causes of the accident. The Louisville Zoo has purchased two new trains since the accident and hopes to have them running in the spring or summer of 2012.

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November 2, 2011

Fatal Kentucky Car Crash Lands Man in Jail for Five Years

On August 23, 2009, Bryan Lee decided to test-drive a new car. He went to Commonwealth Dodge on Preston Highway in Louisville, Kentucky with his brother and asked to test-drive a new Dodge Challenger. The two brothers left the dealership in the car with salesman Sayed Ghafoori. While driving on Fern Valley Road, Mr. Lee dramatically increased the speed of the vehicle and crashed into a Mercury Sable, killing both occupants.

During the trial, Mr. Lee showed little or no remorse until the sentencing, blaming everyone else for what happened, and he stated he was only going 60 mph, which is still above the posted 45 mph limit on Fern Valley Road. According to the vehicle's black box, which records data on the vehicle while it is being driven, the car had been going 102 mph just before the accident.

Almost exactly two years after the crash, a jury found Mr. Lee guilty of second degree manslaughter in the fatal car accident and recommended a five-year sentence for each death to run concurrently, with a possibility of parole in one year, after 20 percent of his sentence is served. On October 21, 2011, Judge Barry Willett confirmed the five-year sentence, denying the defendant's request for probation.

Both sides had differing stories regarding Sayed Ghafoori, the salesman in the car, during the test drive. Mr. Lee testified that Mr. Ghafoori had encouraged him to go faster, telling him to "hit it." In a statement released to the press, Commonwealth Dodge said "Mr. Lee was in no way encouraged to break the law by our salesman, whose life was also in jeopardy during these events, and who incurred injuries in this needless accident." Investigations into Mr. Ghafoori's background have found that he was charged with speeding six times, at one point going 34 mph over the speed limit. These findings do not make Mr. Lee any less guilty since he should have used his own common sense even if he was encouraged to speed by the salesman. However, a case could be made that the salesman is partially responsible for the accident.

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October 18, 2011

Trucking and Driving Safely on Kentucky Roads

232052_semi-truck_2.jpgA recent report from the National Transportation Safety Board (NTSB) regarding the truck accident in which 11 people were killed brings to light again the safety issues of truck drivers and those around them. The recommendations in the NTSB report and other changes will hopefully make the roads safer for all drivers.

After a March 2010 collision in Kentucky killed a truck driver and 10 passengers in a van, NTSB began a thorough investigation of the accident. Almost 18 months later, the board concluded the accident occurred because the truck driver was distracted by his cell phone when he crossed the median and hit the passenger van. The recommendation that all commercial drivers be prohibited from using a cell phone, regardless of whether it is handheld or hands-free, while operating a vehicle, was sent to the Federal Motor Carrier Safety Administration. Current rules already ban texting for commercial drivers, and a ban for handheld cell phone use for commercial drivers is expected to be ruled on this fall. The rule currently under consideration does not include hands-free calls, which may be just as distracting and dangerous as handheld calls.

Several other changes have been implemented or are being considered to help keep drivers in and around trucks safer on the road. In 2010, the Federal Motor Carrier Safety Administration (FMCSA) added new regulations to make the driver of the truck more liable for both the operation and maintenance of the truck. Just as commercial carriers are graded, commercial drivers will be graded on factors including their driving abilities, accident records, and vehicle maintenance. For example, if the truck the driver is operating fails an inspection, or if the driver is involved in an accident or found to be fatigued or under the influence of drugs or alcohol, it will be reflected on the driver's record. Too many negative reports can cause the truck driver's license to be suspended, effectively removing him from the roadways.

Some safety changes do not directly involve Kentucky truck or car drivers, but rather the road itself. Crossover barriers installed between highway lanes can help to stop vehicles from crossing over into oncoming traffic and causing deadly head-on collisions. These barriers do not always help, as was evidenced in the March 2010 accident mentioned above - the semi drove right through the steel cable barriers into oncoming traffic. But they have helped in other situations, and stronger types of barriers are being considered. The widening of Kentucky highways as traffic increases also makes the roadways safer for all drivers.

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October 6, 2011

Eastern Kentucky Personal Care Home Closed

After years of mismanagement, Golden Years Personal Care Home in Letcher County has been closed by the state of Kentucky. Problems at the home ranged from resident neglect and abuse to theft by the home's administration. By June 2011 the home was under an emergency protection order and Linda Bell was appointed to oversee the facility. Ms. Bell reported that the home was not properly maintained and was running a deficit. The state was not able to find a new owner for the facility, so the current 27 residents are being relocated to other homes.

In 2010, the home's administrator, James Tackett, was indicted in more than 150 counts for allegedly stealing over $500,000 dollars from the home. Most of the funds to pay for personal care homes come from federal disability checks and state funding. The majority of the monthly payments are signed over to the administrator of the home, with less than $100 given to the resident for personal use. Mr. Tackett's grandson, Jonah Tackett, was also an administrator at the home and was indicted on seven counts including theft and bribing and tampering with a witness in July 2011.

The State of Kentucky has been involved with Golden Years Personal Care Home since 2007, when Tackett was accused of injuring a resident by hitting him on the head. He pled guilty and was told to resign and have no contact with the residents of the home. In 2009, the home was cited again because Tackett was still involved with the residents. The home was also put in the negative spotlight in 2007 when a resident wandered off and froze to death. The resident, who suffered from schizophrenia and had a history of leaving the home, was not reported missing by the staff for 17 hours after his disappearance. Other complaints regarding the home included a lack of clean towels and fresh milk for the residents and limited social activities.

While personal care homes, which offer less care than nursing homes, are supposed to be a positive alternative to an institution for individuals with mental disabilities, oftentimes the homes are not much of an improvement. Residents are still shut off from the outside world and homes of this type frequently do not have staff trained to handle patients with multiple or complicated issues.

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September 27, 2011

Public Access to Physician Medical Malpractice Records Removed

Since our September 9th post regarding doctors charged with medical malpractice still practicing, there has been a significant development. As a result of the Kansas City Star's article regarding Dr. Tenny's most recent medical malpractice settlement, the Department of Health and Human Services (HHS) has removed public access to its National Practitioner Data Bank. Even though the information was presented in a way to keep the doctors and hospitals involved in the suits anonymous, journalists were able to compare the database information with medical malpractice court records to determine which entries applied to Dr. Tenny.

The National Practitioner Data Bank became aware of the Kansas City Star's intention of using the data when Dr. Tenny's attorney contacted the association. The journalist reporting the story had contacted Tenny to give him an opportunity to comment on the findings; instead he contacted his attorney. The HHS attempted to persuade the Star to not run the story by mentioning fines that could be imposed for misuse of the data bank information. The Star went ahead with the article and included the information because it was public, not confidential.

According to the spokesperson for HHS, Martin Kramer, the information may be available to the public again in the future, but it is unclear when, or in what format the data would appear. He said federal law requires that the information be confidential and it will take time to review the data and determine how to present it so that it remains confidential.

Several groups, including journalism organizations and the Public Citizen's Health Research Group, have lobbied members of Congress to have the database made available to the public again. A letter submitted by the journalists states, "Without stories written by our members, it's fair to say that some unsafe doctors would continue to be practicing with clean licenses and patient protection legislation in several states likely would not have been enacted." A letter from the Public Citizen's Health Research Group to HHS said "The continued availability of this data is crucial to patient safety and research aimed at informed public policy decisions concerning malpractice, tort reform, peer review, and medical licensing."

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September 19, 2011

Cell-Phone Ban for Commercial Drivers May Save Lives

In March, 2010, 11 people were killed in Munfordville, Kentucky when a commercial truck crossed the median and collided with a 15-passenger van. After reviewing the accident for almost 18 months, the National Transportation Safety Board Commission (NTSB) determined that the semi driver was using his cell phone at the time of the collision. The last of four calls the driver made in the 23 minutes before the accident was only connected for one second before the crash at 5:14a.m. A total of 69 calls and text messages appeared on the phone in the 24 hours leading up to the accident.

As a result of this truck accident, NTSB is recommending that hand-held and hands-free cell phone use by commercial drivers be banned, unless there is an emergency. What the states and other transportation agencies do with the recommendation remains to be seen. Chuck Wolfe, spokesman for the Kentucky Transportation Cabinet, suggested that the banning of cell-phone use be handled by Congress rather than by the state of Kentucky since the drivers operate in multiple states. Kentucky currently has laws that prohibit all drivers from texting while driving and drivers under 18 from any cell-phone use. NTSB Chairman Deborah Hersman encourages everyone to consider eliminating cell-phone use while driving, saying, "Changing behavior can start right now, for big-rig drivers and also for the rest of us. When you are at the wheel, driving safely should be your only focus. You owe it to yourself and all the people on the road you put at risk..."

While the families of the victims in the van did not file any lawsuits because of their religious beliefs, accidents that are attributed to driver distraction can have legal consequences. Gross negligence can be charged if the driver was distracted by texting. The fact that the semi driver was operating the vehicle on only four hours of sleep could have also been a basis for gross negligence. Employers of individuals who cause accidents while using their cell phones could be liable as well. A 2002 New York Times article regarding doing business by cell phone discusses a settlement of $500,000 between Smith Barney and the family of a motorcyclist killed by one of its brokers who was on the phone when the accident occurred. The actual driver of the car was charged individually with manslaughter and pled guilty.

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