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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.

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.

Injured by a Defective Product? Can I Sue the Retailer in Alabama?

Published on: October 12, 2020 | by Hollis Wright

by HWCV Partner Carter Clay

Although 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.

Alabama Move Over Act: What Does it Mean to You?

Published on: February 5, 2020 | by Hollis Wright

by HWC Attorney John Spade

It 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:

Raise It or Waive It: Potential Problems for Practitioners with Minimal Pleading Requirements

Published on: January 7, 2019 | by Hollis Wright

Most 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.

Wait, I Have to Pay My Health Insurance Carrier Back?

Published on: February 14, 2018 | by Hollis Wright

by HWCV Associate Attorney John Spade

If you have ever had a personal injury claim that has resolved either through a settlement or a verdict, the attorney handling your case likely told you that a portion of your settlement would have to be used to pay back your health insurance company for the medical bills they paid relating to your injuries. This process is call subrogation and can have a major impact on your personal injury case.

For the purpose of this post, we will be discussing how subrogation works in the context of medical bills that have been paid by private health insurance companies, such as BlueCross BlueShield or Humana. However, it is important to note that the subrogation process applies, not only to private health insurance companies, but also to government entities such as Medicare, Medicaid, Tricare or any other entity that pays to satisfy your medical bills, which then make the basis of your personal injury claim, including hospitals. Furthermore, in regards to governmental entities, a failure to protect their subrogation interests can result in significant penalties to all individual attorneys and/or parties that impaired the governmental entity’s right to get reimbursed. Therefore, the attorney handling your personal injury claim should be aware of which entities are paying your medical bills, so they can make sure to properly protect their subrogation interest.