Articles Posted in Cases in the News

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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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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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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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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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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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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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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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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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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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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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