Alabama Injury Law Blog

Buzzed Driving is Still Drunk Driving

Published on: September 4, 2015 | by Hollis Wright

On Monday, August 28, 2015, a Geneva County jury awarded $3.8 million in damages to three people who were struck by a car driven by a “buzzed” driver. The accident occurred on October 15, 2013. Randell and Donna Heard were driving from Hazel Green, Alabama to Panama City Beach, Florida when 16-year old, Timothy Joel Thomas, ran a stop sign and crashed into their vehicle. The collision seriously injured Randell and Donna Heard as well as a 16-year passenger in Thomas’ vehicle.

During trial, Thomas testified that he may have consumed between one and three tallboys before getting in the vehicle and driving down the road. The evidence proved that Thomas’s blood alcohol content at the time of the accident was .059, which is well under the legal limit to charge Thomas with Driving under the Influence (“DUI”). In Alabama the legal limit of intoxication for a DUI depends on the person’s age. For anyone that is under the age of 21, such as Thomas, the legal limit for a DUI is having a blood alcohol content of .02% or higher. For anyone 21 years of age or older the legal limit is .08% or higher. Therefore, although Thomas did not face criminal charges for DUI, he still faced civil liability for the damages that he caused by driving buzzed. Generally, buzzed driving is classified as driving with a blood alcohol content between .01 to .07, and although technically you may be under the legal limit, driving while buzzed can be just as dangerous as driving while drunk.

In fact, the attorney’s representing the 16-year old passenger of Thomas’ car stated that “buzzed driving” played an integral part in the case. After deliberating for less than an hour and a half the jury found Thomas liable and returned a $3.8 million verdict in favor of the plaintiffs. Randell Heard received $850,000 in compensatory damages and $750,000 in punitive damages. Donna Heard received $450,000 in compensatory damages and $750,000 in punitive damages. The 16-year old passenger received $500,000 in compensatory damages and $500,000 in punitive damages. This case stands as a reminder that even though you may not feel intoxicated, if you are going to drink, drink responsibly, because under the law in Alabama if you drive buzzed you may be subject to civil liability.

Zofran: Birth Defects Caused by Anti-Nausea Drug?

Published on: April 7, 2015 | by Hollis Wright

In the past month, at least three new lawsuits have been filed over birth defects parents allege were caused by Zofran, the popular anti-nausea medication prescribed for off-label use during pregnancy by mothers. This case, filed in California Superior Court on March 30, 2015, follows two others: one filed in the Eastern District of Pennsylvania on February 12, and another in the District of Massachusetts on February 16. Each case alleges congenital abnormalities, including heart defects, after the mothers were prescribed Zofran for nausea and vomiting associated with pregnancy…a use not approved by the FDA when the drug was approved for market.

The court cases allege, among other things, that the maker of the drug, GlaxoSmithKline, has received more than 200 reports of birth defects in children who were exposed to Zofran during early pregnancy. Glaxo is also being accused of improperly marketing Zofran to treat pregnancy-related nausea and vomiting, and one lawsuit even notes that Glaxo previously agreed to pay $3 billion to settle charges with the U.S. Department of Justice regarding the marketing of a number of other medications. This prior settlement with the U.S. government included allegations that Glaxo had improperly marketed Zofran to treat morning sickness…the very same claim now asserted by the plaintiffs.

Recent research by scientists with the University of Colorado, Stanford University, and London’s Royal Free Hospital reveled that when taken during pregnancy, Zofran does in fact cross the placenta to reach the developing fetus, and remains longer with the baby than the mother due to a longer half-life (i.e., the elimination rate of the drug in the body). This was not the first study done regarding these issues. A previously published study from the journal Clinical Pharmicokinetics, showed that samples taken from 41 women given Zofran prior to surgical pregnancy termination procedures revealed much higher concentrations of the drug within fetal tissues than was anticipated.

Pharmaceutical Companies Hit Hard Recently

Published on: March 5, 2015 | by Hollis Wright

Big Pharma has taken it on the chin recently in several trials across the country, with juries awarding millions in damages to individuals who’s health and lives were ruined by defective drugs rushed to market with “reckless indifference” to the health and safety of patients. Amid growing concerns over FDA oversight, and lack of transparency in the testing and studies for new drugs, two juries in the last 30 days in Philadelphia have awarded $2.5 million against Johnson & Johnson for claims associated with use of its long marketed Risperdal medication, while Takeda Pharmaceutical Co. was hit with $2.3 million in damages to a former teacher who developed bladder cancer after using the company’s diabetes drug, Actos.

The Takeda award amounted to $300,000 in compensatory damages for the plaintiff’s medical expenses, as well as an additional $2 million for pain and suffering related to his cancer diagnosis. This is the not the first case where Takeda has been accused of, and found liable by a jury, of endangering the health and welfare of potential patients and users of its drugs. On April 7, 2014, Takeda and Eli Lily where hit with a $9 billion jury verdict related to the same drug, Actos, for failure to disclose and warn of the drug’s potential to cause cancer. On appeal, that award was cut to $36.8 million; however, this recent award is the fifth jury award against Takeda related to Actos. Juries in California and Maryland have also awarded a combined $8.2 million against Takeda for its handling of the drugs.

Another Philadelphia jury ordered Risperdal drug manufacturer, Johnson & Johnson, to pay $2.5 million to a 20-year old autistic man from Alabama who developed size 46 DD breasts as a young teenager due to his long time prescribed use the drug. This condition, called gynecomastia, was never warned about the manufacturer, who now faces thousands more lawsuits in Philadelphia, California, Missouri, and other locations across the US. Juries aren’t the only problem for J&J related to Risperdal however; in 2013, the company paid $2.2 billion to settle federal and state criminal and civil charges related to illegal marketing of the drug. Gynecomastia is the growth or enlargement of male breast tissue. The psychological and social injuries can be devastating — especially when gynecomastia affects adolescent males. Many doctors recommend surgery to reduce breast tissue. In mild or moderate cases, liposuction may be an effective option. In severe cases, however, a surgical procedure called a mastectomy may be necessary to remove breast tissue and excess skin.

Substantive and Procedural Laws: Which States’ Law Applies?

Published on: January 5, 2015 | by Hollis Wright

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.

HIP IMPLANT MANUFACTURER AGREES TO $1.43 BILLION SETTLEMENT

Published on: November 7, 2014 | by Hollis Wright

On Monday, November 3, 2014, a Kalamazoo, Michigan-based orthopedic device manufacturer, Stryker Orthopedics and Howmedica Osteonics Corp., agreed to pay at least $1.43 billion to settle lawsuits pending around the United States. The lawsuits were filed by thousands of patients who received two (2) different defective hip implants, which were recalled by Styker in 2012 due to corrosion and other various problems. Defective hip litigation has seen several large settlements over the past few years, with John & Johnson agreeing to a $2.5 billion settlement just last year to settle some 8,000 lawsuits from patiets alleging that the company’s metal ball-and-socket hip implant caused them injury or had to be replaced or removed entirely.

The Styker settlement will include all pending state and federal claims, and will include plaintiffs from 39 different states. The claims include corrosion which occurred in the patients’ bodies causing illness, as well as removing and replacing the implant with a new device, a procedure known as a revision. According to attorneys who lead the settlement negotiations, “[t]he settlement represents one of the largest medical device settlements with an unlimited compensation fund.” Stryker expects to make most of the payments under the settlement by the end of 2015.

The law firm of Hollis Wright is currently representing numerous individuals who have been injured by these Stryker products. Complex litigation against large medical device manufacturers demands specialized legal experience. If you or a loved one believe you have been harmed by a defective medical device or product, contact the firm of Hollis Wright for more information and evaluation.

The Scariest Part of Halloween Could Be a Lawsuit

Published on: October 16, 2014 | by Hollis Wright

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:

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.

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.

2014 GM Ignition Switch Recall & amp; Settlement Fund

Published on: September 25, 2014 | by Hollis Wright

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

Child Vaccinations vs. Public Education – A Constitutional Quagmire

Published on: August 6, 2014 | by Hollis Wright

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.

BP – Let the Drafter Beware

Published on: July 30, 2014 | by Hollis Wright

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.

TRANSVAGINAL MESH MAUNFACTURER AGREES TO $830 MILLION SETTLEMENT

Published on: June 3, 2014 | by Hollis Wright

On April 30th, Endo International Plc (“Endo”) agreed to pay $830 million to resolve legal claims filed by women who have been injured by various transvaginal mesh devices. In its annual report filed with the U.S. Securities and Exchange Commission, Endo reported that as of February 2014, the company and its American Medical Systems (“AMS”) subsidiary faced approximately 22,000 lawsuits over the devices, and that in 2013, Endo agreed to pay $54.5 million to settle an undisclosed number of the cases.

This most recent settlement is aimed at resolving all of Endo’s pending legal claims across the country related to these devices; however, several other manufactures, including C.R. Bard, Inc. and Johnson & Johnson’s Ethicon unit manufacturer, remain pending and are not part of the announced settlement. At last count, nearly 44,000 cases filed by injured women were pending in the U.S. District Court for the Southern District of West Virginia, alleging varying injuries, including pain during intercourse, bleeding, and additional complications, many of which have required additional surgeries to remove the devices.

Transvaginal mesh devices are net-like implants used to treat various conditions, including pelvic organ prolapse and stress urinary incontinence – common conditions for women after a hysterectomy, menopause, or childbirth. However, over time and beginning in 2008, the U.S. Food and Drug Administration (“FDA”) began notifying manufacturers of reports of complications linked to the devices. This ultimately led to post-marketing safety studies mandated by the FDA to be conducted by AMS and other manufacturers to monitor the rate at which adverse events were being reported. The effect of these reports has been that at the beginning of May, the FDA announced that it is considering proposals which would tighten safety standards for mesh devices used to treat pelvic organ prolapse. These proposals, if adopted, would require manufacturers to submit data which proves the devices’ safety and efficacy before allowing the manufacturer to take the device to market.