Articles Posted in Civil Litigation

Volkswagen has recently been hit by a wave of skepticism as news of the company’s emissions scandal shocked the United States. Volkswagen Group, also known as Volkswagen Aktiengasellschaft, is the second largest car manufacturer in the world. In addition to the well-known Volkswagen brand, the company also sells cars under its subsidiary brands such as Bentley, Bugatti, Lamborghini, Audi, and Porsche. As of May 2015, Volkswagen Group was valued at a substantial $126 billion, ranking 67th on Forbes’ list of the World’s Most Valuable Brands.

What cars are affected by the emissions scandal?

In early 2014, two students and two professors at West Virginia University received a $50,000 grant to study the emissions tests on three diesel cars: the VW Passat, the VW Jetta, and the BMW X5. The studies revealed that the BMW X5 performed at or below federal emissions standards. However, the Volkswagen test subjects did not fare so well. The VW Passat exceeded U.S. emissions standards by a factor of 5 to 20, while the VW Jetta exceeded U.S. emissions standards by a factor of 15 to 35. In May of 2014, the West Virginia scientists reported their findings to the EPA.

picture from http://www.drugdangers.com/ivc-filter/lawsuit.htm

What are IVC filters and when are they used?

Intra Vena Cava (“IVC”) filters are small spider-like devices that are implanted in the veins of patients in the hope that the filters will stop blood clots from reaching the patient’s lungs and other vital organs. IVC filters are designed to capture blood clots that occasionally break free from the deep veins inside a patient’s body before the blood clots can reach the patient’s lungs and cause a decrease or a complete stoppage of blood flow to the patient’s lungs. However, hundreds of reports from across the nation indicate that the devices may fracture or break after implantation resulting in serious injuries and in some cases death.

IVC filters are usually implanted in patients who are at risk for having a sudden blockage of a major blood vessel, known as a pulmonary embolism, and are either unable to take anticoagulants or the patient has taken anticoagulants but they have failed to properly prevent the patient’s blood from clotting. The IVC filters are supposed to be a safe alternative which prevents blood clots from forming in a patient’s blood vessels. However, in April of 2015, the Journal of the American Medical Association published a study comparing the treatment of patients presenting with an acute pulmonary embolism and a high risk of recurrence using a retrievable IVC filter plus anticoagulants versus using anticoagulants alone. The study revealed that “the use of a retrievable inferior vena cava filters plus anticoagulation compared with anticoagulation alone did not reduce the risk of symptomatic recurrent pulmonary embolism at 3 months.” Furthermore, the study suggested that patients with IVC filters may be twice as likely to suffer from a serious, and sometimes fatal, pulmonary embolism than patients who were prescribed anticoagulants alone. Therefore, the study suggests that IVC filters should not be used in cases where patients can be treated with anticoagulation.

Civil law can generally be divided into two categories: substantive and procedural. Many substantive laws are commonly experienced and understood by the general public. For instance, the tort of negligence is present in everyday occurrences such as car wrecks, and breaches of contract can occur in virtually any type of business dealing. Procedural laws, on the other hand, are often much more mysterious to a layman, simply because they regard the actual nuts and bolts of how a lawsuit is administered by a court.

An example of procedural law exists in the distinction between state courts and federal courts. Most lawsuits are handled in state court, because the only way a federal court can hear a suit is if (1) the parties to the lawsuit are from different states and the amount in controversy exceeds $75,000, or (2) the case primarily involves an issue of federal jurisdiction, rather than state jurisdiction. Though this may sound basic enough, there can be much dispute. If the case is held in federal court, there may also be a dispute as to which state’s laws the court should apply.  This issue most commonly arises when the accident or injury happens in one state, but the lawsuit is filed in a different state because of where the plaintiff and/or defendant reside.

A federal court case in the Northern District of Alabama currently being handled by the law firm of Hollis Wright provides a nice illustration of the juggling act between substantive and procedural laws. In this case, the plaintiff, a resident of Alabama, is suing the manufacturers of a surgical robot for injuries he sustained while undergoing surgery in Tennessee. The defendants did not dispute that the case should be held in federal court; rather, they maintained that the federal court should apply Tennessee’s statute of limitations, which is only one year, over Alabama’s, which is two years. If the federal court employed Tennessee’s statute of limitations, the plaintiff would have been time-barred from bringing his suit.

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.

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.

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.

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.

Arbitration, what is it exactly? The process known as arbitration has become extremely common in our society. However, people oftentimes don’t understand what arbitration entails. Arbitration is considered to be a form of alternative dispute resolution to the traditional process involving a judge and/or a jury.

Arbitration is a process whereby an arbitrator, presumably independent and neutral, will hear a dispute between the parties. The dispute can involve most anything ranging from divorces, employment problems, personal injuries etc. The key component to the arbitration process though is that the arbitrator will issue an award or ruling. The ruling is final and binding on the parties with very few exceptions.

In order to be required to arbitrate a dispute, the parties have to mutually agree to do so in writing. Whether both parties really mutually and voluntarily agreed to arbitrate a future dispute or legal claim is a question frequently asked and litigated over? In many commercial transactions, it is common practice for a business owner, such as a car dealership or a nursing home, to require customers and/or patients to execute an agreement to arbitrate any dispute that might arise from the transaction or service. When being presented with several pages of small print and asked to sign, people typically don’t read the entire document and usually only realize after it is too late that they agreed to arbitrate a dispute or legal claim. Courts usually rule that if you signed your name after being presented with the agreement and had an opportunity to read the document before doing so, then you are bound by it. What does this mean exactly? It means that if a dispute or legal claim arises from the transaction or provided service, then you will not be able to have your day in court so to speak. You will be required to have your dispute or claim decided by an arbitrator.  Most attorneys believe that individuals required to litigate a claim or dispute against a company or business through the arbitration process typically don’t come out as well as if they had been able to present their claim to a judge or jury. If this is true, it is easy to understand why business owners would want to have an arbitration provision in an agreement.