On Monday, November 3, 2014, a Kalamazoo, Michigan-based orthopedic device manufacturer, Stryker Orthopedics and Howmedica Osteonics Corp., agreed to pay at least $1.43 billion to settle lawsuits pending around the United States.  The lawsuits were filed by thousands of patients who received two (2) different defective hip implants, which were recalled by Styker in 2012 due to corrosion and other various problems.  Defective hip litigation has seen several large settlements over the past few years, with John & Johnson agreeing to a $2.5 billion settlement just last year to settle some 8,000 lawsuits from patiets alleging that the company’s metal ball-and-socket hip implant caused them injury or had to be replaced or removed entirely.

The Styker settlement will include all pending state and federal claims, and will include plaintiffs from 39 different states.  The claims include corrosion which occurred in the patients’ bodies causing illness, as well as removing and replacing the implant with a new device, a procedure known as a revision.  According to attorneys who lead the settlement negotiations,   “[t]he settlement represents one of the largest medical device settlements with an unlimited compensation fund.”  Stryker expects to make most of the payments under the settlement by the end of 2015.

The law firm of Hollis Wright is currently representing numerous individuals who have been injured by these Stryker productsComplex litigation against large medical device manufacturers demands specialized legal experience.  If you or a loved one believe you have been harmed by a defective medical device or product, contact the firm of Hollis Wright for more information and evaluation.

While Halloween is a night of fun, the special circumstances surrounding trick-or-treating and parties mean a variety of opportunities to commit actionable negligence. Here are a few thoughts on protecting yourself from liability on Halloween:

 

  1. Don’t leave open candles anywhere outside. While your sidewalk may look great lined with real lanterns, this creates a foreseeable risk that someone could accidentally knock them over or that a child’s costume could catch fire.

 

  1. Keep pets inside. Even if your dog is normally well-behaved, strangers, Halloween costumes, and props can cause your dog to get scared or territorial and lead to a dog bite incident. Especially if your dog has had a history of biting (even one time), a dog bite could expose you to liability.

 

  1. Beware of the “pop-out and scare.” Many homeowners like to add to the atmosphere of Halloween by dressing up as a monster and popping out from the side of a porch or from behind trees or bushes to scare trick-or-treaters. If you choose to engage in this fun, ensure that the “scare zone” is away from stairs or any other tripping hazard.

 

  1. Be watchful of your child’s costume props. If your kid’s costume comes with pointed or sharp props—think swords, bow-and-arrows, etc.—consider buying plush or softer props or only using the props at home for pictures. If your child accidentally harms another child with a toy sword, you could be held liable for negligent entrustment or negligent supervision.

 

  1. Label candy with allergens. If you are giving out candy with peanuts, be sure to either label the candy or tell parents of trick-or-treaters.

 

  1. Provide a safe terrain. Ensure that the walking areas leading up to your front door are safe. Fix loose boards or uneven areas of concrete, and remove roots that trick-or-treaters could trip over. If you don’t afford to fix these issues before Halloween, make sure the area is well-lit.

 

  1. Avoid social host liability. If you host a party on Halloween night, you run the risk of being held liable as a social host if one of your guests, after leaving your party, drives drunkenly and injures someone. A “Bring Your Own Beer” policy may not shield you from liability. As safe alternatives, offer to call taxis for intoxicated guests or provide a place for intoxicated guests to sleep.

Have you been injured while driving or riding in a GM manufactured vehicle? As of August 2014, GM has set up a settlement program to compensate persons injured in several recalled cars. The problem noted in the recall is an ignition defect which cuts power to the airbags, power steering, and brakes. In these cases, the ignition switch moves out of the “run” position, resulting in a partial loss of electrical power and turning off the engine. These issues can cause an accident or make an accident far worse. As of September 22, 2014, the official death toll from the ignition defect stands at twenty-one (21). 143 alleged death claims have been filed, out of 675 total filed claims.

The affected models include:

Buick

Cadillac

Chevrolet Oldsmobile Pontiac

Saturn

Lacrosse

(2005-2009)

CTS(2003-2014) Camaro(2010-2014) Alero(1999-2004) G5(2007-2010)

Ion

(2003-2007)

Lucerne

(2006-2011)

Deville(2000-2005) Cobalt(2005-2010) Intrigue(1998-2002) Grand Am(1999-2005)

Sky

(2007-2010)

DTS

(2006-2011)

HHR(2006-2011)

Grand Prix

(2004-2008)

SRX

(2004-2006)

Impala(2000-2014)

Solstice

(2006-2010)

Malibu

(1997-2005)

Monte Carlo (2000-2007)

 

If you were injured while driving or riding in one of these vehicles, it is important to consult with an attorney as soon as possible. The compensation expert hired by GM to manage the recall settlement has stated that GM will only accept claims until December 31, 2014. The settlement manager has also stated that GM has not placed a cap on the payments, so anyone with an eligible claim has an opportunity to recover damages. Those with an eligible death claim will automatically receive $1 million in addition to the awarded amount.

Eligible claims must meet the following criteria:

  • The injured party must have been a driver of or passenger in one of the car models (and years) listed above;
  • There must be a physical, personal injury—GM is not compensating for property damage;
  • The airbags must not have deployed—if the airbags deployed, then this ignition defect was not the cause of the accident.

Finally, the compensation program will not consider driver negligence in determining eligibility for a settlement award.  The law firm of Hollis Wright is currently representing numerous clients with potential GM claims.  Complex litigation against large pharmaceutical companies demands specialized legal experience.  If you or a loved one believe you have been harmed by a transvaginal mesh device, contact the firm of Hollis Wright for more information and evaluation.

 

Additional authors: Alison Almeida

One intensifying social controversy concerns the vaccination of children. A June 2014 article in the journal Pediatrics reports that 1 out of 10 parents in the United States are refusing to vaccinate their children. The momentum of the so-called “Anti-Vac” movement has been aided by the endorsement of celebrities such as Jenny McCarthy, who publicly claims that vaccination is the likely cause of her son’s autism.

In 2000, the Center for Disease Control announced that measles had been eradicated in the United States. In May of 2014, the CDC proclaimed that the number of measles cases in the country is the highest it has been since the disease was eliminated, opining that unvaccinated individuals travelling abroad have brought the disease back to the States. Pertussis, or “whooping cough,” has also made a comeback in the last decade.

With many states across the country requiring parents to provide documentation of their children’s immunizations prior to allowing those children to attend school, a constitutional controversy, which will likely be addressed by the United States Supreme Court at some point, is brewing.

In one recent case, a New York City mother has sued the city’s Department of Education for refusing to grant her five year-old daughter a religious exemption from the state’s policy that children must be vaccinated against several diseases—including measles, mumps, rubella, and polio—before they can attend public school. That lawsuit actually consolidated separate challenges from three (3) families whose children were banned from school for up to one month during various disease outbreaks.

The most outspoken mother, who claims to be a devout follower of the Catholic faith, says that immunizing her child would represent “a lack of faith in God and his way.”  Judge William F. Kuntz II of the Federal District Court of Brooklyn disagreed with that argument, stating that the Supreme Court has “strongly suggested that religious objectors are not constitutionally exempt from vaccinations” and concluding that New York City’s strict vaccine guidelines are meant to safeguard its residents’ health and well-being.

United States Supreme Court precedent states that religious exemptions from state laws may only be granted in light of “genuine and sincere” religious beliefs, so as to prevent persons from feigning “sham” religious beliefs to escape things like recreational drug use laws and military conscription. School officials say that this mother’s claims regarding vaccinations have not been substantiated as being genuine or sincere. Will this be the case that takes this issue through the Supreme Court doors?

Additional authors: Alison Almeida

Unless you’ve been living in exile for the past 4 years, you probably have heard your fill about the BP oil spill and oil rig explosion.  However, a closer look at what happened, and what continues in the settlement process is a cautionary tale for future contract drafters and negotiators (and good news for those with active claims pending against BP).

On April 20, 2010, an explosion on BP’s Deepwater Horizon offshore oil rig caused the deaths of eleven people and the largest oil spill in the industry’s history. After the Deepwater Horizon rig sank, oil leaked into the Gulf of Mexico for an astounding eighty-seven days. This disaster led not only to massive wildlife relief efforts, but also to federal criminal charges and civil claims against BP.

Several investigative groups, following the spill, jointly concluded that BP’s conduct in cutting corners to save money and time—thereby increasing its profit margins—had created an irresponsible and unsafe environment that inevitably bred the tragedy. Knowing reparative action was essential for the company’s survival in the midst of the enormous legal and public relations fallout, BP announced the Gulf Coast Claims Facility (GCCF), a $20 billion fund from which it agreed to settle claims related to the spill. The GCCF began accepting claims in August of 2010. $6.2 billion in settlement funds was paid from this account until June of 2012, when the GCCF was replaced by a court-supervised settlement program.

What BP seems to have overlooked prior to opening the GCCF for claims is that claimants without “actual damages” could receive payment from BP, pursuant to the formula drawn up by BP itself. Bleeding money, BP made a motion to a federal court to stop payment on thousands of claims, in July of 2013. The federal judge who heard the motion refused to halt the program. BP, overwhelmed by the enormity of its self-imposed payment obligations, sought relief from the Fifth Circuit Court of Appeals. The Fifth Circuit Court in New Orleans affirmed the lower court’s decision, finding that, under the terms of the BP-drafted settlement agreement, businesses claiming damages were under no obligation to prove direct harm from the spill in order to recover. BP appealed to the United States Supreme Court.

On June 9, 2014, the Supreme Court refused to stay the Fifth Circuit Court of Appeals’ mandate to BP to make payments per the settlement agreement. Not only does this serve as a good lesson in contract drafting (as, by law, a contract is construed against the party who wrote it), but also, it leaves the door open for businesses affected by the oil spill to make claims against the fund.

The law firm of Hollis Wright is currently representing numerous business owners who have been injured as a result of the Deepwater Horizon oil spill. In order to recover, a business need not be based on the Coast, and need not have a direct loss associated with the spill. Virtually any business can qualify. In fact, we represent all different types of businesses, including distribution companies, law firms, car dealers, restaurants, and oil station companies, just to name a few.  The evaluation process is efficient and non-invasive; however, these claims require specialized legal experience.  If you believe you may have been harmed by the BP spill, contact the firm of Hollis Wright for more information and an evaluation of your case.

Additional authors: Alison Almeida

On April 30th, Endo International Plc (“Endo”) agreed to pay $830 million to resolve legal claims filed by women who have been injured by various transvaginal mesh devices.  In its annual report filed with the U.S. Securities and Exchange Commission, Endo reported that as of February 2014, the company and its American Medical Systems (“AMS”) subsidiary faced approximately 22,000 lawsuits over the devices, and that in 2013, Endo agreed to pay $54.5 million to settle an undisclosed number of the cases.

This most recent settlement is aimed at resolving all of Endo’s pending legal claims across the country related to these devices; however, several other manufactures, including C.R. Bard, Inc. and Johnson & Johnson’s Ethicon unit manufacturer, remain pending and are not part of the announced settlement.  At last count, nearly 44,000 cases filed by injured women were pending in the U.S. District Court for the Southern District of West Virginia, alleging varying injuries, including pain during intercourse, bleeding, and additional complications, many of which have required additional surgeries to remove the devices.

Transvaginal mesh devices are net-like implants used to treat various conditions, including pelvic organ prolapse and stress urinary incontinence – common conditions for women after a hysterectomy, menopause, or childbirth.  However, over time and beginning in 2008, the U.S. Food and Drug Administration (“FDA”) began notifying manufacturers of reports of complications linked to the devices.  This ultimately led to post-marketing safety studies mandated by the FDA to be conducted by AMS and other manufacturers to monitor the rate at which adverse events were being reported.  The effect of these reports has been that at the beginning of May, the FDA announced that it is considering proposals which would tighten safety standards for mesh devices used to treat pelvic organ prolapse.  These proposals, if adopted, would require manufacturers to submit data which proves the devices’ safety and efficacy before allowing the manufacturer to take the device to market.

According to Endo, the settlement is still subject to several conditions, including confirmation of medical records for plaintiffs, but the company stated that it has already set aside $520 million for legal claims associated with the devices.  In addition, the company issued a statement saying that it would also incur a pretax, noncash charge of $625 million in the first quarter to cover the costs of the settlement and insure claimants are paid as the settlement is implemented over the next year.

The law firm of Hollis Wright is currently representing numerous women who have been injured by these transvaginal mesh products.  Complex litigation against large pharmaceutical companies demands specialized legal experience.  If you or a loved one believe you have been harmed by a transvaginal mesh device, contact the firm of Hollis Wright for more information and evaluation.

On April 7th, a jury in the first federal court Actos bladder cancer trial returned a verdict for almost $9.15 billion dollars against co-defendants, Takeda Pharmaceuticals USA Inc. and Eli Lilly & Co. Inc. (In Re: Actos [Pioglitazone] Products Liability Litigation, MDL Docket No. 2299, No. 6:11-md-2299, Allen v. Takeda Pharmaceuticals North America Inc., et al., No. 12-62, E.D. La.), the seventh largest verdict in U.S. history.

The plaintiffs in the case, Terrence and Susan Allen, were awarded $1,475,000 in compensatory damages (i.e., damages for medical bills, lost wages, pain and suffering, emotional distress, and/or mental anguish), and $9 billion in punitive damages.  The jury found that Takeda was 75% liable and Eli Lilly was 25% liable, and split the punitive award accordingly – $6 billion against Takeda and $3 billion against Lilly.  The plaintiffs’ case was premised on the theory that the drug manufacturers had marketed Actos knowing it could cause cancer, but failed to disclose this information to doctors and failed to warn consumers about the risks associated with taking the drug.  The plaintiffs alleged that the pharmaceutical companies failed to disclose this information in order to reap the substantial profits Actos supplied.  For example, in 2011, Actos sales revenue was $4.5 billion and accounted for nearly 27% of Takeda’s total revenue for that fiscal year.  Since its release in 1999, Actos has generated more than $16 billion in sales for Lilly and Takeda, who partnered together to produce and market the drug in the United States.

Actos was originally approved by the FDA in 1999 as an oral medication for type 2 diabetes blood sugar control.  According to the original drug applications and approval literature, it was recommended for patients who have been unsuccessful at regulating blood sugar levels through diet and exercise alone.  However, at the heart of this litigation was an FDA mandated 10-year safety study which was required at the time of approval, to assess whether Actos had any link to bladder cancer.  That study was concluded in 2011, and found that the use of the drug for more than one year continuously might be associated with an increased risk of bladder cancer.

Due to this finding, the drug’s warning label was subsequently changed nearly 12 years after it had already been on the market and had seen widespread use.  In addition to the links to bladder cancer, Actos also has other serious potential side effects, including heart failure, hypoglycemia, weight gain, and even liver toxicity.

Takeda and Lilly still face an additional 2,923 cases in the MDL pending in the Western District of Louisiana, but plan to pursue all legal avenues following the verdict, including post-trial motions and appeals, according to its senior vice president and general counsel, Kenneth D. Greisman.

The following symptoms are potentially associated with bladder cancer: bloody urine, pain with urinating, increased urge to urinate, and unusual back pain.  Complex litigation against large pharmaceutical companies demands specialized legal experience.  If you or a loved one believe you have been harmed by taking Actos, contact the firm of Hollis Wright for more information.

On average, Alabama typically experiences over 100 deaths per year associated with fires. Nationally, the average number of deaths per year from fires is around 4,000.  This means that someone is dying from a fire every 3 hours, approximately.  Approximately 75% of all annual deaths from fires involve a residential property.  The US Department of Commerce, Bureau of Economic Analysis estimates that the total annual cost to society associated with fire losses is a staggering $182 billion.  Residential and non-residential STRUCTURE fires comprise 35% of all annual fires.  Alcohol use contributes to an estimated 40% of residential fire deaths.  Nearly one out of every seven fires to which a fire department responds involves a vehicle.

The fire problem is more severe for some groups than others.  People in the southeast, males, the elderly, African Americans, and American Indians are all at higher risk from fire than the rest of the population.

Fire safety experts recommend that if you are confronted with or facing a residential fire that cannot be easily extinguished to call 911 first before trying to extinguish the fire as many have made the mistake of waiting until the last minute to call 911 which ultimately resulted in damages/injuries that could have been avoided if the fire department had been notified sooner and been able to arrive more promptly.

In both residential and non-residential structures, cooking is by far the leading cause of fires.  The leading cause of fatal fires in a residential setting is due to smoking cigarettes or other forms of tobacco products such as cigars or pipes.  Most victims of fires die from smoke or toxic gases and not from burn injuries.

A special study conducted by the US. Consumer Product Safety Commission (CPSC) shows that fireworks were involved in an estimated 9,600 injuries treated in hospitals in 2011.  The best way to protect your family is to not use fireworks at home and to leave the lighting to the professionals at public fireworks events.

Many folks will recall some of the more widely publicized fire incidents in recent history.  In 2003, the Station nightclub fire in Rhode Island that started from pyro techniques used by a band.  This fire incident resulted in 31 deaths.  Also, the Christmas Day fire in 2011 in Stamford, Connecticut that resulted in a family of 5 dying.  The fire was caused by hot, smoldering embers that were placed with other garbage.

Already in 2014, the City of Birmingham has experienced fires resulting in the death of six individuals and statewide, there have already been thirty lives lost due to fires.  The Hollis Wright Law Firm was recently retained to represent the family of one such individual that died in a house fire in 2014.

There are many proactive steps individuals can take to prevent fires and protect themselves if and when a fire starts.  Most individuals caught in a fire actually die from smoke inhalation and not burns.  To avoid smoke inhalation and protect yourself you should:

Install and maintain smoke detectors, which is the first line of defense in detecting fires in the early stages.

Actually try and sleep with your bedroom door closed or barely cracked to avoid the spread of smoke and fire.

When trying to escape, you and your children should crawl and stay low to the ground.  Hot Smoke rises and there is better air to breathe on the ground.

Develop and practice a “Home Escape Plan” with the family.  If your children are old enough to understand, teach them to run out of the house as fast as they can rather than call out for you and/or wait for you tom come get them.  Finally, establish a meeting place at a safe location outside.

Have a portable ladder somewhere upstairs in second story houses that the child or person can attach to the edge of a window and lower themselves to the ground on the outside.  These ladders can be folded up and are easy to store.

And of course, if you do catch on fire, utilize the “STOP, DROP and ROLL” method to help extinguish the flames.

 

 

Can a concussion from playing football really alter my life forever? It is a question that is being asked much more frequently these days, especially when football season rolls around each fall.  When your son first approaches you as a child and asks about playing football, the knee jerk response has typically and historically always been “yes”.   Every young boy should have the opportunity to experience youth football, right?  With an aggressive, intense focus in recent years on concussions and head injuries associated with football, the decision has become much more difficult and should be given careful consideration and forethought.

Years ago, when current-generation fathers started playing football, coaches and parents rarely discussed or dealt with concussions or traumatic brain injuries (TBIs).  Was this because kids didn’t sustain concussions as often back then or was it because parents and coaches simply were not as aware of the signs and symptoms of concussions as they are today?  Unfortunately, it is likely the latter.

Recently, investigation and research into the causes and effects of concussions has increased significantly, due largely in part to the tragic death of Junior Seau, one of the NFL’s greatest linebackers.  Junior Seau died on May 2, 2012 from apparent suicide.  Seau’s autopsy suggested that he suffered from chronic traumatic encephalopathy, a brain disease caused by repeated blows to the head.  Studies show that it is not the one big hit but rather, smaller, repeated blows to the head which cause brain damage.  Seau’s family subsequently filed a wrongful death lawsuit against the NFL.  The lawsuit blames the NFL for its “acts or omissions” that hid the dangers of repetitive blows to the head.  It also accuses the NFL of deliberately ignoring and concealing evidence of the risks associated with traumatic brain injuries and allowing players to play without proper medical clearance.  While there are sure to be a wide variety of opinions over the merits of the Seau lawsuit and others brought by former NFL players, there is no denying that these incidents and lawsuits are bringing more publicity to the subject.

A few years ago, the NFL implemented a new policy concerning head injuries and player safety.  The NFL now imposes a battery of tests that a player has to pass after sustaining a concussion before he is allowed to play again.  The result of this new policy is that most players miss at least one game following a concussion.  Prior to the implementation of this policy, it was commonplace for a player to be back on the field for the very next game.  For the 2013 NFL season, there will be an independent, unaffiliated physician on the sideline for every single game to provide immediate, neurological assessments of players suspected of sustaining a head injury.

The good news for our communities is that the publicity surrounding the head injuries sustained by these professional players, and the new policies associated therewith, are now trickling down to youth football.  Without a doubt, almost anyone reading this article has heard of a young boy in our communities sustaining a concussion during a football practice or game.

Football is a great game, enjoyed safely by many boys every fall.  However, parents and coaches need to be ever vigilant about detecting symptoms associated with concussions including loss of consciousness, drowsiness, confusion, headache, nausea or vomiting, blurred vision and loss of memory of events surrounding the injury.

With tremendous advancements in technology, coaches and school administrators should be aware that sensor systems exist that can be placed inside helmets to provide real-time data to sideline monitors on the severity and frequency of player collisions.  This type of sideline data is extremely important to facilitating the early detection of collisions that could give rise to a concussion.  One thing we should all agree upon is that winning a football game is always secondary to the health and safety of our children.

Was that text message really that important?  Unfortunately, this is a question that far too many individuals, especially young people, find themselves having to answer after being involved in a motor vehicle accident.  A study by the Centers for Disease Control and Prevention (CDC) showed that 3,331 people were killed in crashes involving a “distracted” driver in 2011.

Although a driver can become distracted for many reasons other than texting and general cell phone usage, distraction associated with texting has become an increasingly big problem, almost to an epidemic level.  The same study by the CDC established that 196 billion text messages were either sent or received in 2011 in the U.S., up nearly 50% from June 2009.  In 2011, at least 23% of automobile collisions involved cell phones.  With so many individuals now utilizing cell phones and/or mobile devices, these percentages will most certainly grow.  The frequency of automobile accidents associated with texting has becomes so widespread that it is now being referred to as “Driving While Intexticated.”

On April 3, 2013, Alex Heit, age 22, was a student at the University of Northern Colorado with his entire life ahead of him.  However, he was tragically killed that day due to texting while driving.  At the time of the crash, Alex was texting “Sounds good my man, seeya soon, ill tw.”  The message was never completed and sent.  Witnesses stated that his head was down and off the road as he veered into the opposing lane of travel.  In an effort to avoid a collision, Alex overcorrected and rolled his vehicle.  Incidents like the one involving Alex are happening all too often on our streets.

The dangers and hazards associated with texting and driving have brought many states to respond with the passage of legislation that prohibits texting while driving.  It has now been just over a   year since Alabama became the 38th state to pass a law banning texting and driving.  The Alabama law took effect on August 1, 2012.  If caught, the law includes fines of $25 (first offense), $50 (second offense) and $75 (third and subsequent offenses).  Each offense will result in a two-point violation on a person’s driving record.  The law does not prohibit dialing or answering a cell phone.

When passed, Governor Robert Bentley said that “even though the penalties are not great, it is just reminding people not to do that.”  However, the greatest reminder not to text while driving should be the death of Alex Heit and others who have lost their lives from such conduct.  Alex’s mother said it best as she reflected on her son’s death by adding, “In a split second you could ruin your future, injure or kill others and tear hole in the heart of everyone who loves you.”

Parents should always be mindful of instructing and cautioning their teenagers about the dangers of texting and driving especially now that the school year has commenced. Teenagers will undoubtedly perceive a need to stay in touch with friends and acquaintances about academic, athletic and social activities during the school year and texting will oftentimes be the preferred method of communication.