by John Spade, HWC Attorney


IMG_3251-200x300The weather is more pleasant, and lately, any chance to get outside and enjoy some fresh air has been a big relief to Alabamians. Whether you are going out to hunt, fish, camp, hike, bike, swim, or climb, it is good to be in the great outdoors. As a part of an effort to encourage Alabamians to go out and enjoy nature, Alabama Legislators passed Ala. Code §§35-15-1 and 35-15-20, also known as the Recreational Use Statutes, in 1981.

The purpose of these statutes is to protect landowners, both private individuals and public entities, from liability if someone gets injured on their land while it is being used for noncommercial, recreational use. By doing this, landowners are more likely to open their properties for recreational use, municipalities are more likely to invest in their parks, and the public has easier access to healthy and enriching activities.

IMG_3255-200x300by Carter Clay, HWC Partner

Any attorney representing injured and wrongful death victims in complex litigation matters has likely encountered a Rule 26 expert disclosure in which the corporate defendant discloses an in-house employee to give expert opinions related to the case. Perhaps, the corporate defendant disclosed an in-house engineer, an architect, or maybe a medical expert. Oftentimes, we just assume that a corporate defendant, under all circumstances, has the unconditional right to have privileged attorney-client communications with these in-house employees. However, when a corporate defendant uses an in-house employee to serve as an expert witness in litigation, does the corporate defendant run the risk of waiving the attorney-client privilege? Yes, it seems so.

Don’t make the mistake of simply concluding that the disclosing corporation can maintain the attorney-client privilege. The disclosing corporation should not be allowed to use the in-house employee as an expert witness sword while at the same time protecting (shield) that in-house employee from full and complete disclosure of all materials “considered” by them in forming the opinions. Initially, a privilege log should be insisted upon pursuant to Rule 26(b)(6) of the Alabama Rules of Civil Procedure.

IMG_3308-200x300by Michael Eldridge, HWC Attorney

Over the past two decades, the cell phone has evolved into a vital extension of our daily lives. The smartphone is now how we respond to emails, listen to music, surf the Internet, take photographs, buy groceries, make dinner reservations, and much, much more. All this use creates an enormous amount of data about us. What most of us might not realize, however, is that all of this forensic evidence is stored right inside our device.

In recent years, parties in litigation regarding motor vehicle collisions have battled over the discoverability of this forensic evidence. The battle centers on two competing interests. The need to uncover relevant evidence versus a person’s right to privacy. As it relates to the former, it is unquestionable that cell phone evidence could lead to the discovery of important evidence. According to the nonpartisan Pew Research Center, as of early 2018, 95% of adults in the United States owned a cell phone,1 77% of which owned a smartphone.2 What has grown alongside these astonishing ownership rates is device capabilities. Smartphones today have what seems like infinite capabilities, which creates an infinite number of distractions. According to the National Safety Council, 25% of highway crashes in the United States are caused by distractions from the use of cellular phones and/or smart devices.3

by Allwin E. Horn, IV, head of HWC Workers’ Compensation Department

IMG_3363-200x300In a recent year, the United States witnessed some 36,500 non-fatal workplace injuries and 5,200 fatal workplace incidents, according to the US Bureau of Labor and Statistics. Of the fatal incidents, 89 were in Alabama.

While it is true that people are injured on the job every day and are able to recover quickly without the loss of income, often the injury is severe and requires extensive medical treatment, lost time from work, and lost wages. In many cases, the injured employee cannot return to their pre-injury job duties due to the physical limitations caused by the injuries. Injured employees are entitled to several different types of benefits under the Alabama Workers’ Compensation Act. They include:

by HWCV Partner Carter Clay

IMG_3255-200x300Although online purchasing is becoming more and more common, products are still routinely purchased from a store or retail shop. If a defective product is purchased from the retailer and injures or kills someone, is the retailer liable? Can the retailer be sued in Alabama? If my client is an Alabama resident, and I sue the retailer, which is an Alabama business, will the case be removed to federal court?

The above questions are often asked by attorneys retained by clients injured by defective products. As explained hereinbelow, the answers depend on what is being claimed against the retail store. Alabama product liability claims are governed by the Alabama Extended Manufacturers Liability Doctrine (AEMLD). See Ala Code § 6-5-501.

Hernia mesh implants have been used by surgeons to repair hernias for years. These mesh implants are made of either synthetic materials or biologic tissue (made from pigs or cows). But why would you need a hernia repair surgery in the first place? A hernia occurs when tissue protrudes through a weakened spot in the surrounding tissue or muscle. This can be very painful and ultimately lead to a hernia repair surgery. There are many causes of hernias, including: physical exertion (lifting heavy objects), muscle weakness, or obesity. The most common types of hernias are inguinal (inner groin), femoral (outer groin), umbilical (belly button), incisional (caused by an incision), and hiatal (upper stomach).

One of the primary treatments for a hernia is surgery using hernia mesh. A hernia repair surgery can be done laproscopically (when several small incisions are made to allow surgical tools into the opening), or open (when a large incision is made). The mesh used can either be synthetic or made with biologic tissue and is intended to provide extra support on the of the weakened tissue.

The most common and widely publicized lawsuits involve synthetic hernia mesh manufactured by Atrium, Bard/Davol, Covidien, and Ethicon. Lawsuits have been filed around the country and include claims that these hernia mesh devices are defective in many ways—migrating, not incorporating well into the body, or balling up. Many claimants allege that they suffer from serious injuries due to defective hernia mesh products including:

by HWC Attorney John Spade

IMG_3251-200x300It may seem like common courtesy to change lanes to provide emergency vehicles on the side of the road more room, but law enforcement wants you to remember, this gesture is more than common courtesy. For the safety of all involved—drivers as well as emergency vehicles and personnel—giving a wide girth of space to side-of-the-road emergency vehicles and personnel, is law.

The law (Section 32-5A-58.2), passed in 2009, is designed to protect not only law enforcement officers and emergency responders assisting motorists on the side of the road, but also tow truck drivers and other maintenance personnel who may be conducting business on Alabama’s roadways. If drivers are unable to completely vacate the lane nearest the emergency or maintenance vehicles, the law states the following:

by HWCV Partner Carter Clay

Any attorney who represents clients in cases that require experts will more than likely come across discovery issues involving those experts. Who is considered an expert and whether or not his or her identity must be disclosed? Specifically, what about consulting experts that will not be a witness at trial, must his or her identity be disclosed to the other parties? In cases involving product liability, this is especially common because of the oftentimes-complex nature of the device at issue. So, what about the discovery of the identification of non-witness consulting experts “attending” the examination of the subject defective product? This article seeks to address circumstances whereby the confidential nature of consulting experts might be removed.

IMG_0791-300x200For instance, in a product liability claim where expert inspections of the product will take place, do the inspections have to be jointly conducted? Can one party insist upon taking possession of the product and conduct an inspection outside the presence of other parties? If one party and the experts take possession of the product, does that party have to disclose the identity of the expert(s) who will be involved in the inspection and handling of the product, and what will they do at the inspection?

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Lawsuits brought by veterans of the United States military against the Minnesota-based company 3M have been consolidated into a multidistrict litigation (MDL) in the United States District Court for the Northern District of Florida. Various venues across the country were considered. Ultimately, the Judicial Panel on Multidistrict Litigation (JPLM) chose the Northern District of Florida as the home for the 3M Combat Arms Earplug litigation. The case has been assigned to the Honorable M. Casey Rodgers, a veteran of the United States Army.

The cases that will be transferred to the Florida MDL involve 3M’s Combat Arms Earplugs. These dual-ended earplugs were designed and manufactured for use by the military. The earplugs were issued to service members from 2003-2015. Because the earplugs would loosen in the user’s ears while being worn, they were not effective at reducing the level of sound, and ultimately caused permanent hearing loss and/or tinnitus.

The attorneys at Hollis, Wright & Clay, P.C. have extensive experience handling claims involving MDLs across the country. If you were a member of the military between 2003 and 2015, were issued dual-ended earplugs, and suffered from hearing loss and tinnitus, you may qualify for compensation. This lawsuit is not against the government or armed forces and does not affect disability benefits.

IMG_0821-300x200Most people know that a lawsuit begins with the filing of a complaint followed, in most cases, immediately by the filing of an answer. Universally referred to as “pleadings,” these legal documents serve as the parties’ first formal written statements setting out either the claims against or defense to another party’s claims in a civil action. What is not universal, however, is the requirements for parties and lawyers when bringing these actions. Depending on the court in which they are filed, claims being asserted, and available defenses, the pleading standard can vary tremendously. For example, for litigants bringing cases in United States Federal Districts Courts, the pleading standard requires that the complaint must set forth at least “enough facts to state a claim for relief that is plausible on its face.Ashcroft v Iqbal, 556 U.S. 662 (2009). For litigants in Alabama State Courts, however, the pleading requirements are materially broader and far less scrutinized when compared to the federal standard. While Alabama’s liberal pleading standard simplifies the process for bringing actions, it can potentially create major problems on the back-end of a case for lawyers with their clients.

Often referred to as a “notice” or “no-set-of-facts” pleading standard, complaints in Alabama are merely required to include “a short and plain statement of the claim showing the pleader is entitled to relief.” Ala. R. Civ. P. 8 (a). Over time, this culture of pleading the bare minimum has, in many cases, lead to minimal review and response from the other party. Despite routine compliance with the minimal pleading standard, such a lackadaisical approach often results in the neglect of important requirements set out in other rules of civil procedure.

The standard and requirements for civil pleadings in Alabama are, in large part, governed by Alabama Rules of Civil Procedure Rules 8 and 12. Pursuant to Rule 12(a), once served with a summons and complaint, a defendant  has 30 days to file a responsive pleading. Under Rule 8, a party’s failure to respond to or deny any averment raised in the Complaint, other than those of damages, amounts to an admission of those claims. Given that the vast majority of answers are timely and amount to a blanket denial to everything raised in the complaint, these two requirements are largely inconsequential. Often overlooked by practitioners, however, are the requirements for raising certain defenses and, more importantly, the consequences for failing to do so.

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