Alabama Injury Law Blog

Safer Alternative Design Proof in Defective Product Cases

Published on: December 30, 2022 | by Hollis Wright

by HWC Partner Carter Clay

To establish the existence of a safer design, a plaintiff, typically through an expert must provide substantial evidence to show (1) that the injuries caused by the product would have been less severe or eliminated by the use of an alternative design and (2) that the utility of the alternative design outweighed the utility of the design actually used. General Motors Corp. v. Jernigan, 883 So. 2d 646, 662 (Ala. 2003). There is no rule of Alabama law that states that the expert must test the safer alternative design to meet the substantial evidence threshold. In fact, “[no] one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience.” Kumho Tire Co., Ltd. V. Carmichael, 526 U.S. 137, 156 (1999).

I. Examples of Substantial Evidence

Alcohol & Drug-Related Injury Cases & the Ever-Developing Area of Toxicology Admissibility

Published on: October 24, 2022 | by Hollis Wright

by HWC Managing Partner Josh Wright

Managing Partner Josh Wright has developed a specialty over the last 25 years in the litigation of toxicology admissibility. Long a regionally-recognized drunk driving victim’s lawyer, the issue of biologic sample admissibility has developed in the law, and Josh has been on the forefront of the topic–litigating alcohol and drug-related cases in State and Federal courts in multiple states, and constantly writing and lecturing on the topic. In fact, part of the current Alabama Beverage Control regulations were written by Josh in 2011-2012.

“Admissibility of biologic samples, including urine and blood results, has become a complicated legal issue over the last 20 years in Alabama and our surrounding states,” Josh stated. “It’s not as simple as saying ‘because that driver had alcohol in his system, the jury gets to hear that evidence against him,’ or ‘because that industrial worker had drugs in his system when he caused the injury, the jury will hear that evidence.'” “If you don’t know and understand the ever-changing science of toxicology admissibility, critical evidence may never be heard by your jury in your case.”

Post-COVID Jury Verdicts … What’s Going On?

Published on: June 15, 2022 | by Hollis Wright

by Josh Wright

Post-COVID verdict averages in personal injury claims are up close to 50% from that of pre-COVID verdicts, according to recent statistics.¹ Verdicts in 2022 alone for Alabama injury victims have topped $97,000,000 in cases involving a wide array of wrongful conduct, including contract disputes, auto, medical malpractice, co-employee, fraud, discrimination, and uninsured motorists. See some of those recent verdicts below (based on lawyer-disclosed data):

Juries appear to listen carefully, consider all the evidence and thoroughly asses fundamental fairness in cases post-COVID. Insurance companies are also getting the message that juries are ready and willing to put aside politics and division in a courtroom, and award fair results in legitimate and real injury cases. Our firm alone has resolved (both at trial and pre-trial), a substantial number of lawsuits for unprecedented money in the last 12 months, which in no small part is because insurance companies have heard the message and listened to recent jury verdicts across the Country.

You Better Object During Trial

Published on: May 19, 2022 | by Hollis Wright

by Carter Clay

Prior to any trial, the attorneys will assess the need to file motions in limine to try to keep out damaging or prejudicial testimony and evidence. Typically, the court will hold a hearing on these motions before commencing the trial and will issue rulings on most, if not all, of the motions. When the court rules adversely to a party, the lawyer must ask himself or herself whether the ruling is sufficient to preserve the issue for appeal. The answer to this question is often “no,” but it depends on whether the court expressly and unequivocally indicated that the party does not need to make another objection during the trial itself.

Alabama Rule of Evidence 103 and applicable case law make it clear that in order to preserve an evidentiary issue for “post judgment and appellate review,” a party must object in a timely manner to the admissibility of the evidence during trial. Ala. R. Evid. 103. Rule 103 states, in pertinent part, that:

Manufacturing a Product for a Customer? Better Be Careful!

Published on: March 3, 2022 | by Hollis Wright

by HWC Partner Carter Clay

Although not terribly common, there are occasions where an individual or company may go to a fabricator or a product manufacturer and ask them to manufacture a product or part based upon an exemplar or design specifications created by the customer. If the manufacturer agrees to make the product or part, what are the manufacturer’s responsibilities? Can they blindly follow the design specifications provided by the customer? Under Alabama law, the answer is no, the manufacturer cannot blindly follow the design specifications and escape liability if the product or part that it makes is defective and injures someone.

“[I]t is well established… that an ultimate consumer can recover in negligence against a manufacturer even in the absence of privity of contract.” Ex parte Grand Manor, Inc., 778 So. 2d 173, 178 (Ala. 2000). Where injury is foreseeable, the contracting party owes the duty to those who could be injured:

Co-Employee Litigation is not Dead in Alabama!

Published on: December 7, 2021 | by Hollis Wright

by HWC Managing Partner Josh Wright

Over the last 20 years HWC Managing Partner Josh Wright has invested a lot of litigation time and firm resources toward co-employee “removal of safety guard” cases and has had great success in that practice area. Over just the last four years, Josh has successfully resolved seven separate cases under a (c)(2) safety device theory.

Josh stated, “lawyers in our state often believe the exclusivity provision of the Workers’ Compensation Act is an absolute bar to cases against co-employees, or believe (c)(2) cases are often not covered by liability insurance. Fortunately, both those beliefs are incorrect. In fact, these cases are almost always covered by insurance. And, the Alabama Supreme Court has not restricted the legislature’s intent—when it carved out from the exclusivity provision co-employee claims many years ago—to protect injured employees who are harmed by the removal of a safety device, or something tantamount to that removal. Co-employee litigation under 25-5-11(c)(2) is alive and well in our State legislatively and under Alabama caselaw.”

Are Landowners of Outdoor Recreational Property Protected if Someone Gets Injured on Their Land?

Published on: September 28, 2021 | by Hollis Wright

by John Spade, HWC Attorney

The 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.

The In-House Corporate Expert Witness—Was a Privilege Just Waived?

Published on: August 18, 2021 | by Hollis Wright

by 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.

The Battle for Data: How Courts are Tackling the Discoverability of Cell Phones in Litigation

Published on: March 31, 2021 | by Hollis Wright

by 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

A Guide to Workers’ Compensation Claims

Published on: December 8, 2020 | by Hollis Wright

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

In 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: