Kentucky Injury Attorney Blog

Almost 80% of all prescriptions in the U.S. are filled with generic medications. These medications can be offered at a lower price than brand-name drugs because the companies that manufacture the generic versions have not invested millions of dollars in the creation and testing of them. Once a patent expires on a drug, other companies can begin to manufacture and sell a generic version of it without getting FDA approval, provided the formula and labeling are not altered in any way.

Such was the case with sulindac, a generic anti-inflammatory drug similar to ibuprofen. Mutual Pharmaceutical Company in Pennsylvania, a subsidiary of another company based in India, was manufacturing sulindac in 2004 when a New Hampshire woman went to her doctor with shoulder pain. He prescribed a clinoril, a mild anti-inflammatory, and she was given sulindac as a generic equivalent. A few weeks after she started taking the drug, her skin began to come off. She ended up losing two-thirds of her skin, requiring a lengthy stay in a hospital burn unit. She also suffered esophagus and lung damage and ended up legally blind. She is now only 53 years old.

As with many other victims of dangerous drugs, the woman filed a lawsuit against the drug manufacturer in the hopes of receiving some compensation for her injuries and suffering. A jury awarded her $21 million, an amount which was also upheld by the Court of Appeals. Now the Supreme Court will hear the case. Groups on both sides of the dangerous and defective drugs argument will be awaiting the higher court's decision.

This would seem to some to be an open-and-shut case. A woman was seriously and permanently injured by a drug manufactured by a pharmaceutical company, and she should be compensated for these injuries. However, the fact that the drug was generic plays a large part in the case. In past cases, generic drug manufacturers have been protected by the higher courts. Why would the higher courts side with the manufacturers? Because generic drug manufacturers are required to reproduce the drug and its corresponding warning labels exactly like the brand-name version. Therefore, according to the courts, they cannot be held accountable for any injuries that occur because they are not responsible for the makeup of the drug or its corresponding labels and warnings.

Continue reading "Court to Decide if Generic Drug Makers can be Held Liable for Dangerous Drug Injuries" »

In 2012, hundreds of people became ill and 46 people died as a result of tainted medication. The problem was traced back to a compounding facility in Massachusetts that has since closed. Steroid injections given to people with back pain had been contaminated and caused a meningitis outbreak that affected patients in 20 states. Shortly after the source of the outbreak was discovered, the Massachusetts Department of Health started doing surprise health inspections at the other compounding facilities across the state. Their findings, released in February 2013, were surprising and a little scary.

Inspectors visited 37 of these specialty pharmacies and discovered deficiencies at all but four of them. That means there were issues at 33 of the companies. Of this number, 11 had violations so serious that at least parts of their operations were temporarily shut down. One company voluntarily surrendered its license, and the other 21 had more minor violations and were allowed to stay open. Officials were quick to point out that this is not a one-state issue; Massachusetts just happens to be the one state that did these inspections. Some states don't even require their compounding facilities to comply with the guidelines checked by the inspectors in Massachusetts.

While none of the problems discovered were as bad as those found at the facility that caused the outbreak, it is still good that the issues were found and will be corrected. The state has dedicated funds to pay for more routine inspections of compounding pharmacies, and hopefully other states will follow in its footsteps.

Many victims of the meningitis outbreak have filed product liability lawsuits against the now-defunct compounding pharmacy, and the families of some of the victims who died have filed wrongful death claims. But because the company is no longer in business, it is unclear how much anyone would be awarded. Some of the victims may have also filed medical malpractice claims against the medical personnel that administered the tainted injections, but it remains to be seen if any of them will be held accountable.

Continue reading "Health Inspections Find Numerous Issues at Most Massachusetts Compounding Facilities" »

Trying to get a young infant to sleep can be difficult and frustrating. Sleep-deprived parents often go to great lengths to get their little ones to drift off, from driving miles in the car to singing songs and pacing the floor incessantly. So when a product comes out that claims to help get babies to sleep, it can be quite appealing. One such product is the Nap Nanny, which was introduced a few years ago. The Nap Nanny is kind of a recliner for infants, which allows their heads to be slightly elevated while sleeping. The product is designed to be used only on the floor and the infant is buckled in.

The Consumer Products Safety Commission (CPSC) is a group that monitors products and complaints to determine if products are unsafe for consumers. In July, 2010, the CPSC announced a voluntary product recall of the Nap Nanny after receiving numerous complaints about the product, including one regarding a child who died while sleeping in the product in crib. The four-month-old had managed to move herself to the edge of the recliner and suffocated between it and the crib bumper. The manufacturer recalled the product and released a new version of it with additional safety features and directions on safe usage of the product.

After the initial recall, the CPSC received reports of additional injuries and deaths to infants using the Nap Nanny. They notified the company about the issues, but the company's founder refused to recall the product. She stated that none of the subsequent injuries or deaths would have occurred if the consumers were using the product properly. Four of the five reported infant deaths occurred while the Nap Nanny was being used in a crib, which the labels on the product specifically say not to do. Several stores voluntarily recalled the infant sleepers and the CPSC has filed a complaint in an attempt to have a mandatory recall put in place. The manufacturer has also filed documents to have the complaint dismissed. In the meantime, Baby Matters, the company that makes and sells the Nap Nanny, has shut down its operations, but continues to stand by its product.

Continue reading "Infant Recliners Recalled by Retailers, Manufacturer Refuses to Recall Product" »

It seems as if product recalls on cars are becoming more and more common. It is hard to say whether it is because cars are not being made as well as they used to be, or if the manufacturers are trying to protect themselves and their consumers by issuing the recalls more readily. The latest big recall hasn't even officially happened yet, but it has been announced through the media.

In February 2013, Honda is scheduled to announce to the recall of over 800,000 vehicles in the U.S. and about 70,000 in other countries. In October 2012, the National Highway Traffic Safety Administration (NHTSA) announced that it was going to begin investigating Honda Pilots and Odysseys that were manufactured in 2003 and 2004. The investigation was prompted by the NHTSA receiving over 40 complaints regarding the vehicles. Drivers stated that the vehicles rolled away after being parked and having the keys removed. Owners of 16 of them said the only reason they stopped rolling was because they hit a stationary object such as a tree, wall, or brick mailbox. At least three vehicle owners claimed to have been injured trying to stop the rolling vehicles. Two months after the investigation was opened, Honda announced that they were going to recall 2003-2004 Honda Pilots and Odysseys, and 2003-2006 Acura MDXs.

What is causing these vehicles to roll away by themselves? It is not a brake failure as one might expect. Ignitions are designed so that the driver cannot remove the key unless the vehicle is in park. However, on the recalled models, the ignition part that prohibits the key from being removed can wear down or be damaged, allowing the key to be removed without the car being put into park. If the emergency brake has not been applied, the vehicle is free to roll away.

Continue reading "Recall Scheduled to Occur in February 2013 on Certain Honda Models" »

Farm-grown fruits and vegetables are supposed to be the healthiest foods to eat, far surpassing the processed foods that frequently fill our pantries and freezers. But sometimes, even fresh food can cause illness. Cantaloupes grown in Indiana and sold in July 2012 are thought to be the cause of over 178 cases food poisoning. The illnesses span 21 states, and two people have died. At least 50 of the cases were in Kentucky.

One farm has been identified by the FDA as producing the tainted cantaloupes - Chamberlain Farms in Owensville, Indiana. Even though the farm voluntarily recalled all of their cantaloupes, the FDA issued a formal product recall of the fruit on August 22, 2012 to make people more aware of the situation.

At least one lawsuit has been filed in the outbreak. A mother from Michigan claims she bought three of the tainted cantaloupes from Walmart. Both of her daughters ate the melon and contracted salmonella, which causes fever, abdominal cramping, and diarrhea. People can become severely dehydrated and some even die. This woman's daughters both required a doctor's care and emergency room visits, and one daughter was hospitalized for four days. Her attorney has filed a lawsuit on the family's behalf against Chamberlain Farms in Indiana and the Walmart that sold the melons. It claims that the family has incurred over $25,000 in medical bills.

This outbreak is similar to the one that occurred in September 2011 with cantaloupes. In that case, the cantaloupes were from Colorado and were tainted with listeria, which causes illness similar to salmonella. The attorney handling the recent lawsuit also represents 42 families that were allegedly affected by the listeria outbreak. He states that he is surprised that another outbreak has occurred because he "would have expected farmers, distributors and retailers to have better food safety procedures in place this year to prevent another cantaloupe-related outbreak from happening."

Continue reading "Salmonella in Cantaloupes Leads to Indiana Product Recall and Lawsuit" »

Advances in medical technology are amazing and can provide great benefits to patients. Unfortunately, sometimes the products created to help people can end up causing more harm than good. In this type of situation, victims can seek compensation not only from the doctors or hospitals involved in the procedure, but also the company that created and marketed the product.

One medical product that is under intense scrutiny right now is a mesh that is implanted in various parts of the abdominal area to treat bulging organs, called pelvic organ prolapse (POP), or incontinence due to weakened tissues around certain organs. In 2011, the FDA updated its report on the use of vaginal mesh implants. The update states that serious complications are more frequent than initially thought and that it is unclear whether surgery that includes the mesh implant is any more effective than the traditional method. Between 2008 and 2010, the FDA received 2,874 reports regarding medical issues associated with the vaginal mesh implants including "mesh erosion through the vagina (also called exposure, extrusion or protrusion), pain, infection, bleeding,...dyspareunia,...organ perforation, urinary problems... recurrent prolapse, neuro-muscular problems, vaginal scarring/shrinkage, and emotional problems." In January, 2012, the FDA told numerous manufacturers of this product to perform a three-year study to confirm it is safe and effective.

Hundreds of victims have filed medical malpractice lawsuits claiming these implants are causing additional medical issues. One case has already gone to trial and been decided by a jury. The victim had claimed that her vaginal mesh implant that had been manufactured by C.R. Bard Inc. caused chronic pain and incontinence and that she had endured nine surgeries to try to fix the problems caused by the implant. The lawsuit, which was filed against both the manufacturer and the doctor who performed the surgery, alleged that the company had not thoroughly tested the product before selling it, despite the fact that the FDA had approved it. The jury determined that the manufacturer was 60 percent responsible and the doctor was 40 percent responsible. The victim and her husband were awarded $5.5 million for pain and suffering, medical expenses, and loss of consortium.

Continue reading "Victim Awarded $5.5 Million in Medical Malpractice Lawsuit over Mesh Implant" »

Product recalls on cars are not uncommon. Considering the thousands of parts that go into each car or truck, it is understandable that an issue might arise after the cars have been sold and are being driven on a daily basis. Most issues are found before they cause any major damage or injuries, and recall notices are sent to everyone who owns the cars in question so the problem can be fixed.

A recent Ford recall encompasses thousands of cars built at the Louisville Assembly Plant in Kentucky. Over 8,000 Ford Escapes built at the Fern Valley, Kentucky plant between March and June 2012 have been recalled because of a carpet issue. Misplaced carpet padding could interfere with the driver's ability to switch from the accelerator to the brake. A Ford spokesperson said the problem was found internally and that no car accidents have been reported as a result of the issue.

While it appears that Ford is handling this current recall properly, that may not be the case in an earlier recall. In December 2004, Ford recalled around 590,000 Ford Escapes and Mazda Tributes because a liner around a cable could interfere with the accelerator and cause it to get stuck. The majority of owners of the cars in question had their cars repaired. Then in October 2005, Ford sent a new set of instructions regarding the previous recall to the dealers telling them to be careful not to damage the cruise control cable during the repair. This information was sent only to the dealers, not to the car owners, so anyone who had already had their cars repaired did not know there might be an additional issue.

Continue reading "Incorrect Ford Escape Recall May Have Contributed to 17-Year-Old's Car Accident Death" »

On September 21, 2011, Leamon Perkins of Pine Knot, Kentucky in McCreary County ate a bowl of microwavable Velveeta Shells and Cheese. He became very ill and ended up in surgery on September 29, 2011. According to his doctors, Mr. Perkins' small bowel was perforated with a small piece of metal that showed up on a CT scan and he had contracted peritonitis. The surgeon removed the portion of his small bowel that had been damaged by the sliver of metal and the metal piece itself.

The next day, Kraft Foods, the manufacturer of the macaroni and cheese recalled 137,000 cases of the product "as a precaution due to the possible presence of small, thin wire bristle pieces," according to the FDA recall press release. The recall was voluntary, as opposed to FDA-mandated, and Kraft stated it had not received any complaints or heard of anyone being injured.

Mr. Perkins filed a product liability lawsuit this month against Kraft. Why he waited so long to file the lawsuit is unknown. It is possible that he was not aware of the product recall until recently, so he did not put the two together. Kentucky law allows individuals to file product liability claims up to one year after the injury occurred, so he was well within the filing period.

In the lawsuit, Mr. Perkins is seeking $6 million in damages. The amount includes both compensatory and punitive damages. His wife has requested $500,000 in damages for loss of consortium. Compensatory damages often include lost wages and medical bills, as well as other less tangible items, such as physical and emotional distress. Loss of consortium is most often claimed by a spouse for lost or interrupted marital relations related to the accident. It can also be claimed by a parent or child of a victim for a reduction or termination of affection because of the victim's injuries. Punitive damages are not related to a particular loss, but instead serve to punish the defendant for the incident that occurred. Many plaintiffs claim punitive damages in an attempt to deter the defendant from allowing a similar incident to occur in the future.

Continue reading "Kentucky Couple Files Product Liability Suit against Kraft Foods" »

On 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.

Continue reading "Louisville, Kentucky Settles More Personal Injury Lawsuits from Zoo Train Derailment" »

Many parents feel, and rightfully so, that their babies are safest in their cribs. They are in their own homes, unable to get into unsafe situations. Unfortunately, this is not always the case. Between 1990 and 2008, over 7500 infant injuries involved cribs. As a result, new federal rules have been enacted to make cribs safer for babies.

One major culprit has been drop-side cribs, responsible for up to 32 infant deaths. The movable sides of drop-side cribs have been shown to drop unexpectedly, causing a baby to become trapped or suffocated by the crib side, or allowing an infant to fall. As of June 28, 2011 manufacturers are no longer allowed to make drop-side cribs. Although over 11 million of the cribs have been recalled, many are still in use by daycare centers and hotels, which have until December 28, 2012, to replace drop-side cribs with those with stationary sides. To see if a crib has been part of a recall, individuals can check www.cpsc.gov, www.keeping babiessafe.org, or www.recalls.gov. Parents who own a drop-side crib that was not recalled can contact the manufacturer to see if an immobilizer is available. The U.S. Consumer Product Safety Commission (CPSC) warns that these immobilizers are not subject to the more rigorous standards, so it would be better to replace the crib.

According to the CPSC, crib manufacturers must also "strengthen crib slats and mattress supports, improve the quality of hardware and require more rigorous testing." Faulty crib slats and mattress supports can come loose, creating an opening large enough that a child could get trapped. Hardware can come loose and create an entrapment situation or a hole large enough for a child to fall.

A combination of these factors caused the death of a Kentucky infant when the plastic hardware holding the drop side of the crib broke, allowing the side to slide down and the infant to become entrapped between the side and the mattress. The 7-month-old's death in 2009 was one of 11 attributed to cribs manufactured by Simplicity, which no longer is in business. The parents of a Florida 9-month-old who died in a Simplicity crib settled a wrongful death lawsuit for an undisclosed amount in 2010.

Continue reading "Crib Standards Raised to Keep Sleeping Babies Safe" »

Attorneys who represent victims of defective products anxiously await to hear hour the United States Supreme Court decides the Baycol case.

The Court just announced that it will review fourteen cases in it's coming term, one being this Bayer Corp. class action. The case involves Bayer product, Baycol which went on the market in 1997 and is claimed to caused side effects including muscle toxicity which can lead to kidney failure and ultimately to death.

The plaintiffs from West Virginia, found their way to a Minnesota court where several cases had been consolidated. Bayer argues that a judge has already banned these lawsuits in 2005. The Supreme Court will now decide.

Products liability cases are very serious. If your life has been effected by a defective product, including a dangerous drug, it is important that you speak with an attorney to learn more about your rights.

Parents in Kentucky and Indiana should rejoice over Danny's Law, a consumer protection statute which recently went into effect. Starting on June 28, 2010, parents who purchase a covered product will be provided with a registration card which should be sent back to the manufacturer. In the event of a recall, the parents will be notified. The information provided to the company by parents can only be used in the event of a recall, and cannot be used for marketing purposes. Further, the product will have to be labeled with the manufacturer's name and address, model name and number, as well as the manufacture date.

This law effects eighteen product categories including:

• full-size cribs


• non-full-size cribs


• toddler beds


• high chairs


• booster chairs


• hook-on chairs


• bath seats


• gates


• play yards


• stationary activity centers


• infant carriers


• strollers


• walkers


• swings


• bassinets


• cradles


• children's folding chairs


• changing tables


• infant bouncers


• infant bathtubs


• portable toddler bed rails


• infant slings

Continue reading "Danny's Law Changes Recalls for Parents" »

Kentucky products liability attorneys are not happy with the latest Kentucky Supreme Court case, Fluke Corporation v. LeMaster (Rendered March 18, 2010). The court reversed a 2008 Appellate decision which held that equitable estoppel barred a product manufacturer's statue of limitations defense because the company hid product defects from government regulatory agencies.

The case stems from an explosion injuring several people. After filing a lawsuit, the plaintiffs added another defendant, Fluke Corp., after the statute of limitations date had passed because they later learned that Fluke's defective voltage meter may have contributed to the accident. Fluke's summary judgment motion was granted and the plaintiffs appealed claiming Fluke's failure to properly comply with the Consumer Product Safety Commission bared their defense.

The Supreme Court reversed, holding that plaintiffs were not protected by the company's failure to properly report to the government agencies. Instead, the plaintiff was bound by the one-year statute of limitations for products liability cases. The plaintiff knew or should have known that there was potentially a problem with the voltage meter at the time of the accident.

Continue reading "Kentucky Supreme Court Opinion on Products Liability " »

Yesterday, June 1, 2009, a train at the Louisville Zoo derailed injuring over 20 of the 30 passengers aboard, many of them children. Several of those injured were transported to area hospitals. Ride inspectors from the Kentucky Department of Agriculture have already begun investigating the incident to try and determine what caused the train to derail. The train, which allows visitors to ride a loop around the zoo, will be shut down until further notice. A Louisville Zoo spokesperson told the Courier-Journal that the train is driven by zoo employees who are certified by the zoo and are at least 18 years old. The train does not have safety belts. When asked about safety belts, the Louisville Zoo spokesperson stated that the train did not have safety belts because they are not required by the manufacturer. The procedures the Louisville Zoo follows for inspecting the trains and the tracks have not been made available as of yet by the Louisville Zoo

If you or your loved one was injured as a result of this accident at the Louisville Zoo or any other automobile or trucking accident, call the personal injury attorneys at Miller and Falkner to protect your rights.

Read more about the accident at the Louisville Zoo.

On March 31, 2009 the U.S. Consumer Product Safety Commission (CPSC) and Yamaha Motor Corporation issued a recall for more than 120,000 of its Yamaha Rhino ATVs model 450 and 660 which have been sold since 2003.  The recall is due to an inherent design flaw that makes these vehicles unstable and susceptible to low-speed rollovers.  These rollovers have resulted in 46 confirmed deaths and hundreds of injuries including the legs and arms of occupants being crushed by the roll cage as the vehicle crashes to the ground.  Many of these injuries occur even if the occupant is wearing a seat belt.  These rollovers also occur on level or near-level ground and can occur even if the driver does not turn the vehicle sharply. 












Yamaha Rhino 450
(without doors)                      
                                                                                         Yamaha Rhino 660
                                                                                         (without doors)

Yamaha is offering a free repair of this design defect.  Yamaha has also agreed to voluntarily suspend the sale of these models starting immediately until all are repaired. The CPSC warns that consumers should immediately stop using these recreational vehicles until the repair is made by a dealer.

Yamaha is also voluntarily suspending the of sale for the Rhino 700 model and implementing the same repair program. The CPSC also warns that consumers should stop riding the 700 model until it is repaired. About 25,000 Rhino 700s are part of this repair program.

View the recall in its entirety. 

Continue reading "Yamaha to Recall Rhino ATV After 46 Confirmed Deaths and Hundreds of Injuries" »