Alabama Injury Law Blog

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:

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.

A Simple Guide to the Ongoing Hernia Mesh Lawsuits

Published on: September 25, 2020 | by Hollis Wright

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:

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:

Are Consulting Experts Always Privileged and Confidential? Arguments For and Against Production

Published on: August 12, 2019 | by Hollis Wright

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.

For 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?

Defective 3M Earplug Cases Centralized in Florida

Published on: April 22, 2019 | by Hollis Wright

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.

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.

Injured Minor Child? Who Brings a Claim for Medical Costs?

Published on: May 9, 2018 | by Hollis Wright

Any attorney that represents injured children has to consider the question of who has standing or the right to bring the claim on behalf of the injured child? Are the incurred medical expenses the parents’ claim or the minor child’s claim? And, what adult or person should serve as the representative for the minor child? These are just some of the many questions that arise in the context of an attorney’s representation of an injured child.

While the above questions will depend upon the state in which the injury occurred, this article focuses on Alabama law and how it views these issues. Essentially, Alabama allows the parent or the person representing the minor child to elect who makes the claim for medical bills, past and future, during the minority years. The parent, who likely incurred the medical bills, can bring the the claim in their individual capacity or, the parent can waive their right to bring the claim individually in favor of simply allowing the minor to pursue the claim through their representative.

The issue was first addressed in Cabaniss v. Cook, 353 So. 2d 784 (Ala. 1977); see also, Broughton v. Kilpatrick, 362 So. 2d 865 (Ala. 1978) (affirming the holding in Cabaniss one year later by reversing the trial court when it did not allow the introduction and admission of medical expenses on behalf of a minor suing by and through his mother as next friend). The Cabaniss Court directly addressed the issue of whether a minor child has the right to pursue medical expenses through a representative as opposed to the parent pursuing said damages individually. In Cabaniss, Warren Cook, and unemancipated minor, sued by and through his father as next friend, for damages arising out of an automobile accident. Cabaniss at 785. In the Cabaniss opinion, the Court noted:

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.

Uninsured Alabama Motorists to Face Penalties

Published on: November 29, 2017 | by Hollis Wright

Beginning November 2017, Alabama motorists should be prepared to incur stiff penalties if they are caught without liability insurance on the state’s roadways. Although Alabama motorists have been required to carry liability insurance on their vehicles since the Alabama Mandatory Insurance Act was initially passed in 2013, the Alabama Legislature recently enacted a bill which gave the Alabama Law Enforcement Agency a procedure to levy civil penalties against drivers found to be in violation of the previously enacted Alabama Mandatory Insurance Act. The bill, which was passed by the Alabama Legislature in 2016, gave drivers a grace period in an effort to allow motorists time to obtain proper coverage.

With the grace period expiring on November 1, 2017, all motorists are now effectively responsible to be properly insured when taking to Alabama roadways. Applicable fines include the following:

$200 for the first offense,