Alabama Personal Injury Blog - Liability

New Product Liability Decision Addresses Retailer Warranty Liability

Michael Roberts — Wed, 22 Jul 2009 11:39:39 GMT

A July 17 Alabama Supreme Court decision, by a vote of 5 to 4 of its 9 justices, decided that the retailer or seller of a dietary supplement does not have an automatic "sealed container" defense that would absolve it from liability for breach of an implied warranty of merchantability. In Sparks v Total Body Nutrition, Inc., a product liability case, the court answered questions about Alabama law posed by a federal court. The Uniform Commercial Code, enacted by the Alabama legislature over 40 years ago, provides that, generally, products or goods sold by business must at least be fit for the ordinary purposes for which such goods are to be used. In this case, the company that sold the supplement argued that it would not have known whether the manufacturer from whom it obtained the product shipped was in a defective condition and it should not be responsible for selling it. The majority opinion said that the recourse of the seller would be it’s asserting a claim against the company from whom it obtained the product, rather than absolution.

This decision is sensible and represents a commendable result in the interest of consumer protection. For further discussion of product liability law, see Chapter 19 of the book, Alabama Tort Law.

Originally posted at InjuryBoard by Michael Roberts

If I slip or trip and fall and get hurt, what am I entitled to?

Danny Feldman — Thu, 02 Jul 2009 12:11:29 GMT

The short answer is that you are entitled to be put back into the position that you would have been in had the incident not occurred. Unfortunately, no matter how good your lawyer is or how sorry the premise owner is for your injuries, no one can turn back the hands of time. Accordingly, what happens (assuming you prevail) is that you will receive a sum of money, either through a settlement or verdict. The amount you receive is supposed to be an amount to reasonably compensate you for what you have been through.

Certain aspects of your damage claim will be fairly precise numbers. For example if you earn $500/week and you missed one week of work due to your injuries, you will have a $500 lost wage claim. Of course, defendants will argue that you should receive nothing if you had sick days or if the missed time is not as a result of doctor's orders. Further, if you are in the 1/3 tax bracket, defendant will want to subtract this amount as well.

You also will be entitled to receive the cost of your medical expenses incurred because of the wreck. Once again, it will be your burden to prove, often by very expensive ($1,000/hour or more) testimony from your doctor that your injuries, more likely than not where caused by the incident, that the medical treatment rendered was necessary to heal and cure you, and that the cost of the medical treatment was reasonable compared to the cost for similar treatment in your community. In addition, if you have health insurance, defendant will argue that all you are entitled to is the amount of your "out of pocket" co-pays and deductibles and the amount of your health insurer's subrogation claim. Forget that you have had $800/month deducted from your paycheck for the last 20 years to pay for this coverage.

The hardest to quantify area of damages generally is referred to as "pain and suffering" and mental anguish/emotional distress. It amazes me sometimes how people think that if you hurt someone and pay their out of pocket medical bills, that the injured person has been reasonably compensated. How about the inconvenience of going to numerous doctor visits; the stress of worrying about bills that aren't getting paid because you can't work; the pain you feel from the injury; the inability to do things that you like or need to do because of the injuries you suffered - for instance, not being able to go on along-planed vacation, not being able to exercise, sometimes not even being able to do the normal activities of daily living, like driving, dressing, cooking, cleaning etc.? These are the types of things that a pain and suffering award is meant to compensate. Just because it is harder to quantify monetarily should not mean that it is any less real and therefore simply should be forgotten.

Finally, in some rare cases, you might be entitled to punitive damages. Punitive damages are not designed to compensate you for what you have been through; rather they are designed to punish defendant for reprehensible conduct and to deter others from engaging in similar conduct. Punitive damages are rarely awarded, but in certain cases, they do have their place.

Originally posted at InjuryBoard by Danny Feldman

If I slip or trip and fall can I sue?

Danny Feldman — Tue, 23 Jun 2009 08:31:39 GMT

Every time someone falls down, people make jokes that the injured person will end up "owning the place." What does the law say about a premise owner's potential liability if someone falls on your property?

In Alabama, and a few other states, it depends on the right, or lack thereof, that the person who fell had to be on the property. For example, the duty of a premise owner to someone who is trespassing on their property is very, very low. On the other hand, if someone is a "business invitee" - that is, if someone is on the property to benefit the property owner (like a customer of the store or restaurant) then the premise owner has a higher duty. However, that duty basically is not to be negligent - or in other words, to act as a reasonably safe business owner would act in similar circumstances.

Let's take a look at a couple of examples. Say you visit Wal-Mart or any store for that matter and another customer walking directly in front of tosses the proverbial banana peel. With your next step, you slip on it and break your neck. Can you sue Wal-Mart? Sure. Will you win? Absolutely not. You must show more than the fact that you fell on the store's premises and that you got hurt. You must show that the store was negligent. In the example above - what did the store do that was unreasonable? Not a thing. So, while you may have a claim against the person that tossed the peel (good luck recovering on that, unless the person happens to be Donald Trump or someone else of personal means) you do not have a claim against the store.

Let's vary the facts a bit. The same customer tosses the banana peel 8 hours before you enter the store. A manager sees it 15 minutes later and instructs an employee to clean it up. The employee gets distracted and does not do it. A couple of hours go by and the manager sees the peel again. He means to get on the employee for not picking up the peel, but he too gets distracted. Another couple of hours go by. Several other managers and employees see the peel, but do not remove it. You don't see the peel; slip and fall and break your neck. Negligence? Maybe - it'll depend on what the jury thinks. Was it reasonable for the store to leave the peel on its floor for 8 hours? Does the peel constitute a dangerous or hazardous condition? What about the customer - shouldn't he have seen and avoided the peel?

In my next blog, I'll address in more detail some of these issues and "affirmative defenses" So, the answer to the question is "yes" - if you fall you can sue, however, whether your lawsuit has any reasonable chance of success is another matter entirely.

Originally posted at InjuryBoard by Danny Feldman

Chrysler Bankruptcy Will Leave Product Defect Victims Empty-handed

Jason Knowles — Thu, 18 Jun 2009 17:42:46 GMT

There is an interesting article in the June 10, 2009, issue of BusinessWeek which discusses the effect of Chrysler’s bankruptcy protection on those injured or killed by a faulty Chrysler vehicle. Under the terms approved by the Bankruptcy Court on June 1, 2009, the “new” Chrysler will not be liable for product defect claims involving any vehicles sold before it came into existence. Thus, under the Court’s order, it appears that anyone with a pending injury or death claim against Chrysler has no hope of recovery and that the “new” Chrysler is shielded from suits filed by anyone injured in a future accident involving a Chrysler vehicle currently on the roads.

My brother, Alexander City, Alabama attorney Jeremy Knowles, whose firm, Morris, Haynes & Hornsby, won a $52 million verdict against Chrysler in 2005, summed it up best when he told BusinessWeek that “people with personal injuries or life-ending injuries should be at the top of the list, not the bottom”.

The looming question now is whether General Motors will win the same kind of liability protection in its bankruptcy case. With about 31 million Chrysler vehicles on the road and about 74 million GM vehicles on the road, according to the Insurance Institute for Highway Safety, the bankruptcy courts’ decisions will profoundly affect thousands of consumers and accident victims.

Originally posted at InjuryBoard by Jason Knowles

Raptiva Withdrawn from U.S. Market

Michael Roberts — Thu, 09 Apr 2009 14:29:57 GMT

On April 8, the psoriasis drug Raptiva (efalizumab) was the subject of an announced phased voluntary withdrawal from the United States market. Its manufacturer, Genentech, made this announcement due to potential risk to patients of developing a severe, progressive neurologic disease known as progressive multifocal leukoencephalopathy. This disease is caused by a virus that affects the central nervous system. Raptiva will be no longer available in the U.S. after June 8, 2009.

A February 19 FDA Public Health Advisory warned of PML risks in taking Raptiva, after reports were received of PML disease in patients who had been taking Raptiva.

Originally posted at InjuryBoard by Michael Roberts

Officer and director liability for fiduciary breach

Pete Burns — Tue, 17 Feb 2009 09:36:59 GMT

The pendulum is swinging toward reasonable accountability in the business world. News flash: Officers have fiduciary duties to their companies! The lack of regulation that lead to our disastrous financial meltdown is beginning to cause a sober look at liability rules. A good case in point is the recent ruling by the Delaware Supreme Court that officers have fiduciary duties to their companies. http://courts.delaware.gov/opinions/(j2glxx45d0ewqp45ejdoarfi)/download.aspx?ID=116710

That such a holding would come as a surprise is the really big news. Why in the name of heaven wouldn’t a corporate office owe a fiduciary duty to the company? Hopefully we will see more courts recognizing that the stockholders - not the corporate executives - are the ones in need of protection.

Originally posted at InjuryBoard by Pete Burns

Mechanical Heart Pump Devices Subject Of Recall

Michael Roberts — Wed, 29 Oct 2008 14:46:55 GMT

According to recently published news accounts, Thoratec Corp. has recalled certain batches of its mechanical heart pumps. The recall was triggered by five deaths of patients, who died while using these heart pumps. This device, called the HeartMate II Pump, had been approved in April 2008 as a temporary treatment for patients awaiting heart transplants. This report states that catalog numbers 1355 and 102139 are applicable to the devices involved in the recall. It is recommended that patients contact their doctors to assess the condition of the wire that connects the heart device to the power pack.

Originally posted at InjuryBoard by Michael Roberts

Placebo Prescribing: a surprisingly common lie and its risk

Trevor Reid — Fri, 24 Oct 2008 14:54:53 GMT

National Public Radio reported today that prescription of placebos by American doctors may be a common practice. Placebos are a form of off label use where the medicine is not shown to treat a patient's diagnosed ailment, but the influence on the particular patient is hoped to be positive--sometimes from nothing more than positive thinking and expectations. And the majority of doctor's surveyed find it acceptable, according to news from a study of internists and rheumatologists published in the most recent edition of the British Medical Journal.

NPR's report quotes Robert Sade, a surgeon, suggesting that such prescriptions are a grayish area in medical ethics. The American Medical Association's position is summed up this way:

"[I]f doctors want to use placebos, they should tell patients that one or more of the pills they're getting is not specifically designed for their illness, but that some have found it helpful."

I shudder. Outside of research where subjects are told upfront they may receive placebos, the practice is clearly a problem. First, autonomy and informed consent are paramount in our relationships with physicians, dentists, and every professional for that matter. Only you can take a meaningful measure of your own quality of life and assess whether any treatment worthwhile in light of the disclosed risks and drawbacks. In the process you rely on your doctor to be honest with you--a placebo is simply a lie. It undermines the entire basis of autonomy.

But, philosophical nuances aside, there is a second, more practical concern embedded in this news about placebo prescribing. Many of us are under the care of more than one doctor over the course of our lives. If doctors aren't absolutely open with patients how can patients convey an accurate picture of their health to another provider when asked?

Autonomy is so important to me personally that I even write "Patient expects complete candor and autonomy" in the "other concerns" section whenever I fill out a new patient intake form.

Once in a while a doctor's negative reaction to this has raised a red flag and I sought care elsewhere. More often it has lead to clear expectations, a better bedside manner, and the foundation for robust trust and openness to follow. Of course, within this framework I respect my doctors' professional knowledge. After all, that's why I hired them.

Originally posted at InjuryBoard by Trevor Reid

Bicycle Accidents and Injuries - Part 4 in a Series

Jon Lewis — Fri, 01 Aug 2008 09:00:00 GMT

Another section of the Alabama Code provides for bicycle safety. That section is 32-5A-280 through 32-5A-286. The title of this section is the Brad Hudson-Alabama Bicycle Safety Act of 1995.

Under these laws, no person under 16 years of age may ride on a bicycle, even as a passenger, without wearing an approved protective bicycle helmet. Additionally, any person on a bicycle who weighs less than 40 pounds or is less than 40 inches tall must be in a separate restraining seat. If a parent of a child under the age of 16 years knowingly allows the child to operate or be a passenger on a bicycle without a helmet or without the proper restraining seat, that parent will be considered in violation of the code and subject to its penalties.

The rules above are set forth by the State of Alabama. Any city or town may establish a more comprehensive bicycle safety program than these rules. For example, in Homewood, Alabama, it is unlawful for any person, regardless of age, to ride a bicycle without a helmet upon a public roadway.

In our next part to this series, we will discuss the rules regarding the rental of bicycles.

Originally posted at InjuryBoard by Jon Lewis

Medical Malpractice - Why do Doctors Worry?

Jon Lewis — Thu, 26 Jun 2008 09:00:00 GMT

Doctors I meet always discuss the malpractice problem. They seem to worry about lawsuits to an incredible degree. Yet, the statistics show that doctors and hospitals win an overwhelming majority of the cases in Alabama. When they express these feelings to me, I tell the doctors, "You need to raise your deductible as high as you can possibly raise it because the chances of a settlement or verdict against you is minimal."

Why, you might ask? Well, medical malpractice cases are difficult everywhere, but in Alabama, we have the Medical Liability Act (§§ 6-5-480 and 6-5-540 of the Code of Alabama) which provides great protection for the medical community. From a plaintiff's perspective, it's like going to Las Vegas and playing against the casino with loaded dice in the casino's favor - virtually impossible. In fact, going to Las Vegas would probably be more fun.

What makes this law so hard for injured victims and the families of injured victims? First, the law requires the plaintiff to prove that the doctor, hospital, nurse, or other healthcare provider "breached the standard of care" for those healthcare providers in the same area of practice. This is more than a simple negligence standard. This standard requires the plaintiff to have a "similarly situated" expert testify against the defending healthcare provider. For example, if the accused physician is a board certified obstetrician, the plaintiff must have a board certified obstetrician testify that the accused physician breached the standard of care for board certified obstetricians in the community.

Hiring such experts gets expensive. Consequently, the client must have such injuries that would warrant the expense of hiring such an expert. Otherwise, trying the case to a jury would be futile because the injured party would not receive compensation after the attorney earns a fee and is reimbursed for his expenses. Furthermore, it is extremely difficult to find an expert within the State of Alabama. Consequently, most experts are from outside the State, and the defendant usually has several experts from within Alabama to testify on his behalf. Given our well-renown healthcare facilities in Alabama, the jury is left to wonder why the plaintiff had to hire an expert from outside the state.

In addition to the above, the Act prevents the victim, or the victim's family, from conducting proper discovery. The Act provides the following:

§ 6-5-551 - . . . Any party shall be prohibited from conducting discovery with regard to any other act or omission or from introducing at trial evidence of any other act or omission.

If a doctor has left a sponge in someone after surgery on ten occasions prior to the incident complained of, those ten (10) incidents are not discoverable from the doctor. If this information can be obtained from an independent third party, you can discover it, but good luck getting that information before the jury.

If you get beyond these hurdles, you still must prove that the doctor's breach of the standard of care actually caused the injury or death alleged. Sometimes, doctors do breach the standard of care, but notwithstanding that breach, the injury was caused by some other factor. For instance, a doctor may have failed to administer the proper antibiotic, but the patient dies as a result of a heart condition. The failure to give the proper antibiotic did not cause the death.

Finally, medicine is not an exact science, and there are hazards of surgery. Surgery is risky, and bad things can happen during surgery. The doctor obviously would not wish these things to happen, and they cannot be punished for every bad result. However, there are times where they need to be held accountable. Juries are loathe to do this. The jury is not told whether a doctor has insurance, and they are left to wonder whether or not the doctor and his family will be forever punished as a result of a verdict. What juries need to understand is that doctors have malpractice coverage, and if they don't it's because they are unable to obtain coverage. There are VERY few doctors who can obtain malpractice insurance and don't get it.

Clients call or e-mail every day about a potential medical malpractice case. Most of these potential cases are not cases. Most doctors are competent professionals and do the right thing, but there are some out there who don't, and the way the system is set up, those doctors are protected. This should not be the case. When healthcare professionals do not take proper precautions to protect patients, they should be held accountable. Otherwise, we should just give the healthcare profession total immunity, and not even worry about these issues. What would the insurance industry say about that?

Originally posted at InjuryBoard by Jon Lewis