Alabama Injury Law Blog

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.

ACTOS: $9 Billion Awarded in First MDL Bladder Cancer Trial against Manufacturers Takeda & Eli Lily

Published on: April 25, 2014 | by Hollis Wright

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.

Fires, A Real Societal and Dangerous Problem!

Published on: February 13, 2014 | by Hollis Wright

On average, Alabama typically experiences over 100 deaths per year associated with fires. Nationally, the average number of deaths per year from fires is around 4,000. This means that someone is dying from a fire every 3 hours, approximately. Approximately 75% of all annual deaths from fires involve a residential property. The US Department of Commerce, Bureau of Economic Analysis estimates that the total annual cost to society associated with fire losses is a staggering $182 billion. Residential and non-residential STRUCTURE fires comprise 35% of all annual fires. Alcohol use contributes to an estimated 40% of residential fire deaths. Nearly one out of every seven fires to which a fire department responds involves a vehicle.

The fire problem is more severe for some groups than others. People in the southeast, males, the elderly, African Americans, and American Indians are all at higher risk from fire than the rest of the population.

Fire safety experts recommend that if you are confronted with or facing a residential fire that cannot be easily extinguished to call 911 first before trying to extinguish the fire as many have made the mistake of waiting until the last minute to call 911 which ultimately resulted in damages/injuries that could have been avoided if the fire department had been notified sooner and been able to arrive more promptly.

Post Concussive Syndrome, A Real Problem!

Published on: December 12, 2013 | by C. Carter Clay

Can a concussion from playing football really alter my life forever? It is a question that is being asked much more frequently these days, especially when football season rolls around each fall. When your son first approaches you as a child and asks about playing football, the knee jerk response has typically and historically always been “yes”. Every young boy should have the opportunity to experience youth football, right? With an aggressive, intense focus in recent years on concussions and head injuries associated with football, the decision has become much more difficult and should be given careful consideration and forethought.

Years ago, when current-generation fathers started playing football, coaches and parents rarely discussed or dealt with concussions or traumatic brain injuries (TBIs). Was this because kids didn’t sustain concussions as often back then or was it because parents and coaches simply were not as aware of the signs and symptoms of concussions as they are today? Unfortunately, it is likely the latter.

Recently, investigation and research into the causes and effects of concussions has increased significantly, due largely in part to the tragic death of Junior Seau, one of the NFL’s greatest linebackers. Junior Seau died on May 2, 2012 from apparent suicide. Seau’s autopsy suggested that he suffered from chronic traumatic encephalopathy, a brain disease caused by repeated blows to the head. Studies show that it is not the one big hit but rather, smaller, repeated blows to the head which cause brain damage. Seau’s family subsequently filed a wrongful death lawsuit against the NFL. The lawsuit blames the NFL for its “acts or omissions” that hid the dangers of repetitive blows to the head. It also accuses the NFL of deliberately ignoring and concealing evidence of the risks associated with traumatic brain injuries and allowing players to play without proper medical clearance. While there are sure to be a wide variety of opinions over the merits of the Seau lawsuit and others brought by former NFL players, there is no denying that these incidents and lawsuits are bringing more publicity to the subject.

Texting and Driving, Just Don’t Do It!

Published on: November 18, 2013 | by C. Carter Clay

Was that text message really that important? Unfortunately, this is a question that far too many individuals, especially young people, find themselves having to answer after being involved in a motor vehicle accident. A study by the Centers for Disease Control and Prevention (CDC) showed that 3,331 people were killed in crashes involving a “distracted” driver in 2011.

Although a driver can become distracted for many reasons other than texting and general cell phone usage, distraction associated with texting has become an increasingly big problem, almost to an epidemic level. The same study by the CDC established that 196 billion text messages were either sent or received in 2011 in the U.S., up nearly 50% from June 2009. In 2011, at least 23% of automobile collisions involved cell phones. With so many individuals now utilizing cell phones and/or mobile devices, these percentages will most certainly grow. The frequency of automobile accidents associated with texting has becomes so widespread that it is now being referred to as “Driving While Intexticated.”

On April 3, 2013, Alex Heit, age 22, was a student at the University of Northern Colorado with his entire life ahead of him. However, he was tragically killed that day due to texting while driving. At the time of the crash, Alex was texting “Sounds good my man, seeya soon, ill tw.” The message was never completed and sent. Witnesses stated that his head was down and off the road as he veered into the opposing lane of travel. In an effort to avoid a collision, Alex overcorrected and rolled his vehicle. Incidents like the one involving Alex are happening all too often on our streets.

Arbitration, what is it exactly?

Published on: October 30, 2013 | by C. Carter Clay

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.