Personal Injury Law Blogs

Football Helmets Continue to Be a Concern with Product Liability

It seems as if football is under the microscope every year with new discoveries about the effects of concussions and the ever-changing rules about tackling and where a player can hit another player. This pressure mounts on football equipment manufacturers, the players and the families of young players, as parents weigh the risks and concerns of such a physical sport.

Warning Labels:

Some equipment manufacturers have become rather explicit with their warning labels, especially Schutt Sports, which has taken some flack for their blunt label that reads, “No helmet system can protect you from serious brain and/or neck injuries including paralysis or death. To avoid these risks, do not engage in the sport of football.”

Schutt Sports’ chief executive, Robert Erb, backs the label by saying, “The simplest thing we can do is remind people that the game has inherent risks. It’s an ethical, moral and legal issue. People need to know these things.”

The Legal Dilemma:

Manufacturers, like Schutt Sports, have succumbed to putting these labels on helmets because of rising scrutiny of equipment companies. With lawsuits mounted against companies, coaches and leagues, Schutt Sports and others decided it was better to tell the honest truth than to beat around the bush.

Riddell, the largest manufacturer of helmets, had this to say in regards to the situation— “We feel strongly that the information, education and warning materials that accompany Riddell helmets are clear, concise and comprehensive.”

These companies are telling their consumers that the game of football isn’t a cakewalk and shouldn’t be considered a low-contact sport. Instead, it should be considered seriously and the injuries surrounding the sport should be evaluated before a player decides to step on the field.

In Erb’s words, “This is not to provoke fear or controversy. It was to tell you to look both ways when you cross the street, not ‘don’t cross the street.’ ”

Basically, manufacturers are presenting the facts, however explicit they prefer, so they aren’t being questioned when lawsuits continue to mount.

Product Liability and Defective Products:

But when is the manufacturer responsible? While the manufacturer may walk away from lawsuits with explicit labels, they do not walk away when helmets are defective or manufactured with faulty parts. This is still grounds for a product liability lawsuit, and a lawsuit that could be tremendous if a kid gets seriously injured.

In such a case, personal injury lawyers need to get involved and families should seek the counsel of a lawyer. Manufacturers are not removed from defective products that they let leave their warehouses.

Product liability is another issue when the manufacturer disregards faulty products. But for now, manufacturers seem to be covered with their blunt labeling.

Evidence of Your Personal Injury

Okay, so you got into a personal injury accident, and now you want to file a personal injury lawsuit against the person who negligently caused your injuries. Well, you’ve found, picked, and named your defendant, but how are you going to prove that he or she negligently caused your accident and personal injury?

You’re not going to prove that unless you have evidence.

Evidence generally comes in two forms: direct and circumstantial. Both can be used to prove a defendant’s negligence. The hard part is finding and gathering evidence of your personal injury. But, not to worry.

Here’s how.

Evidence of Your Personal Injury

  • A Police Report — A police report is definitely evidence of your personal injury accident, and if you get into a personal injury accident while on the road, then you are likely to have a police report available for your use. hearsay, meaning it can’t be used in a trial before a judge, but it can be used in alternative dispute resolution procedures:

  • Medical records — Medical records are definitely necessary to show that you actually suffered injuries as a result of your accident. So, although you might not want to take that trip to the doctor, it’s a good idea to do so, and to do so before you get better.

  • Personal Notes — You can also take personal notes and share them with your personal injury lawyer during your free consultation. This will help him or her find the strengths and weaknesses of your personal injury case, determining where you need more evidence to prove the defendant negligently caused your injuries and figuring out how to get that evidence.

  • Pictures — Pictures also make for evidence of your personal injury. Did you slip and fall at a grocery store? Take a picture of the spill or have someone else take a picture of it for you. This can later show the size and extent of the spill, as well as indicate how long it had been left there, all of which are important aspects of proving a defendant’s negligence caused your personal injuries.

  • Video — Well, you forgot or just weren’t able to take a picture. However, a camera might have caught everything on tape.

Jennifer Machie writes for Colley & Colley, LLP.

The 5 Key Members of a Spinal Cord Injury Rehabilitation Team

The settlement funding from successful personal injury litigation should cover the cost of the rehabilitation process, but what types of therapy are required after a spinal cord injury? Read on to find out.

The road to recovery after a spinal cord injury (SCI) is a long and arduous one.

When a person’s abilities to move and function become so suddenly and severely diminished, it is of paramount importance to find a way to improve their condition as much as possible. This is so that they can live their life with the optimum level of function and experience each day with the least amount of disruption.

It is for this reason that a spinally injured person undertakes a rehabilitation program. However, a great level of strength and determination is required from the injured person in order to achieve discernible results.

The injured person does not make this journey alone. In the majority of cases, their rehabilitation program is funded by a successful spinal injury claim, and requires a multi-disciplinary team of experts to provide separate specialist therapies, whilst all working together.

A good serious injury lawyer will facilitate such resources required for rehabilitation, and will be able to appoint a highly qualified case manager. Together, they will use the settlement funding (personal injury compensation) to put in place the best possible private care team.

The exact number of therapists differs from case to case. However, some of the main key members of a spinal cord injury rehabilitation team are as follows (also check out this page from CFG Law outlining different types of spinal injury and possible steps forward – https://www.cfglaw.co.uk/spinal-cord-injury-claims ) :-

Physiatrist

The team will be organised and led by a physiatrist; a fully qualified doctor and medical professional who is either a DO i.e. a doctor of osteopathic medicine, or an MD – a doctor of medicine.

Physiatrists take a holistic view of their patient and their condition, assessing all aspects in order to be able to fully co-ordinate and organise a complete and comprehensive rehabilitation regime for them.

In a role that focuses on their patient’s musculoskeletal system, physiatrists pay particular attention to the injured person’s lost ability to move, as well as their reduced – or perhaps completely – lost body functions.

As physiatrists do not perform surgery on their patients, various therapies are identified and accommodated in a manageable routine that helps the patient to restore as much function as possible, and reduces any levels of pain that they may be experiencing.

Due to the fact that every spinal cord injury is different, rehabilitation programs differ from person to person and from injury to injury. As time progresses, the physiatrist periodically monitors their patient’s improvements – or their decline, unfortunate as it may be – and adjusts the rehabilitation regime accordingly.

Physiotherapist

A physiotherapist (also sometimes referred to as a physical therapist) is not to be confused with a physiatrist. Whereas a physiatrist is a fully qualified doctor, a physiotherapist can prescribe neither surgical procedures nor medicinal remedies, and is trained in kinesiology (the science of human movement) in order to provide therapy via exercise.

Physiotherapy is one of the most important therapies a spinally injured person undertakes on their road to recovery. The physiotherapist works with the patient to provide expert professional assistance that helps to strengthen vital muscle groups and improve their motor skills.

However, the importance of this type of therapy goes beyond the treatment room, as physiotherapy is an inclusive therapy; the physiotherapists work to teach the patient and their family exercises that can be undertaken at home. It is a communal therapy, also beneficial on a psychological level as its continuous inclusivity promotes the best level of recovery possible.

Whilst initially, the physiotherapist’s work has the potential to be painful for the patient, the aim is to improve their functionality so that pain is reduced to more manageable levels, or in the best case scenarios, where there was formally pain, it is now completely removed.

If the patient has experienced an incomplete spinal injury i.e. where the spinal cord is not completely severed and function remains in the extremities, particularly the legs, then the physiotherapist may incorporate treadmill training and gait training as part of the rehabilitation program.

A physiotherapist who specialises in SCIs also helps the patient with any secondary conditions that may arise as a result of their injury. For example, they may provide bladder management advice as well as coping strategies for potentially life threatening conditions such as autonomic dysreflexia.

Occupational therapist

The role of an occupational therapist is to promote the skills that help the SCI patient with daily living with their new condition. It is a focus on the day to day activities that allow someone who has suffered from a severely debilitating spinal injury to live as independently as possible.

For example, the occupational therapist will help the patient to ‘re-learn’, or adapt the ways in which they are able to complete many of the tasks that most people take for granted. This usually includes personal hygiene tasks such as washing and bathing, brushing teeth and so forth; a particularly useful skillset for those with diminished hand and arm function.

The work of an occupational therapists extends to feeding and drinking; dressing; coordination and balance; as well as the teaching of how to use any necessary adaptations and equipment that the spinally injured person may now need. Promotion of good posture is of paramount importance, especially for those who make considerable use of wheelchairs.

Occupational therapists also provide assistance with equipment that helps the spinally injured person to communicate. This is particularly useful for those with diminished speech capabilities after suffering from tetraplegia.

All these skills are the bedrock of functionality, and the aim of the occupational therapist is to help the patient to be able to complete as many of their day to day tasks.

Psychologist/Mental health therapist

Given the incredibly debilitating effects of SCIs and their resulting reduced function, mental health therapy can very often be a vital part of an injured person’s rehabilitation.

Depression is quite common, so a therapist is very often on hand to try to help people through this difficult period.

A common form of psychotherapy that is used is called cognitive behavior therapy. It is a ‘talking therapy’ where the therapist engages with the patient about all aspects of their lives; be it their feelings about themselves, others or their environment.

The therapist also discusses the effect that these feelings have on their actions, and in turn the effect that their actions then have on their feelings.

Social workers

Once the injured person has left the acute care of the hospital and is back at home, social workers are on hand to provide any ongoing assistance for such immediate needs as arranging for the implementation of adaptations and equipment in the home, as well as identifying community resources or pushing for improvements of amenities for local SCI people.

A social worker may also provide the counselling services required by the patient, and act as a liaison between some members of the medical staff and the injured person’s family.

Stricter sentencing could see dangerous dog owners face life in prison

New penalties for owners of dogs in England and Wales who kill or injure a person are being considered by the government.

The current maximum prison sentence for allowing a dog that kills or injures someone to be dangerously out of control is two years, but under new proposals owners could face life in prison.

Sixteen people have been killed by dogs in the past eight years and the government is seriously considering stiffer punishments.

The most recent and high profile case of Jade Anderson, who was killed in March by four dogs when she was at a friend’s house in Greater Manchester, has lead to calls for more to be done. Police have no plans to prosecute anyone in relation to her death, saying there is no evidence a crime has been committed under the current laws that are in place.

The last time a government took action on this area was when the Dangerous Dogs Act was passed in 1991 and then amended in 1997. But this only covers attacks by dogs in public places and private areas where animals are prohibited from being, such as a neighbour’s garden or a public park.

The proposed sentences have been criticised by the RSPCA, who say the measures are not the solution and think more should be done to prevent attacks in the first place.

“Unless you solve this problem of people not being able to control their dogs properly then I still think you’re going to see a rise in dog attacks and dog biting,” said head of public affairs David Bowles.

“What the government has proposed is only having a notice after the dog has committed the offence,” he added.

The government consultation on the issue of dog attacks will run throughout August and the process will be used to inform recommendations.

Animal Welfare Minister Lord de Mauley said: “Dog attacks are terrifying and we need harsh penalties to punish those who allow their dog to injure people while out of control.

“We’re already toughening up laws to ensure that anyone who owns a dangerous dog can be brought to justice, regardless of where a dog attack takes place.

“It’s crucial that the laws we have in place act as a deterrent to stop such horrific incidents.”

One group who will be pleased that further legislation is being planned are postal workers. Representatives of postal, utility and delivery staff have long argued for laws to be extended to cover attacks in dog owners’ homes; which they currently do not.

It’s thought that 23,000 postmen and women have suffered from dog bites and attacks in the last five years, with as many as 70% of these attacks taking place on private property.

Dave Joyce, the union’s health and safety officer, said: “This consultation is very welcome and hopefully indicates the government is serious about tackling the problem of irresponsible dog ownership.

“We want to see tougher sentencing, better enforcement and greater consistency in sentencing.”

This article was written by writer and blogger Matthew Crist on behalf of minnesota personal injury law firm – TSR Injury Law.

 

4 Things Not To Do After Getting into A Car Accident

The aftermath of a car accident can be very confusing and even scary, but it is essential that you avoid making certain mistakes. After all, the actions that you take after the accident occurs can have a big impact on your ability to file a lawsuit, and you could even get into legal trouble if you fail to take the proper steps. Therefore, no matter what your first inclination is, you should always take a step back for a moment to carefully think through all of your options before you end up making a major mistake.

1. Never Leave the Scene
If you leave the scene of an accident without contacting the police or at least exchanging information with the other driver, you could be arrested for a hit-and-run. Unfortunately, regardless of whether or not you were the driver who caused the accident, this will lead to several legal complications. In fact, some states take such a harsh stand against hit-and-run drivers that you could automatically lose your license for several months. Therefore, you must always remain on the scene after an accident until the proper authorities have been notified.

2. Never Sign without Legal Counsel

 
Car accident attorneys, like those at Steinger, Iscoe & Greene, suggest that it’s a really bad idea to sign a waiver or any other documentation without speaking to legal counsel unless you are absolutely certain that you know what you are doing. After all, if you sign a waiver that stipulates that you are giving up your legal right to sue the other driver, then you will have to take care of all of the costs that are associated with medical treatment and the damage to your vehicle.

3. Never Agree to Not Call the Police

 
It is important to call the police unless you are in a minor fender bender that does not cause damage to your vehicle. Many insurance companies will not cover your claim if you fail to get a police report, so you have to contact the police unless you are willing to pay for everything yourself. It is especially vital to get the police involved if you have any reason to suspect that the other driver is intoxicated. After all, if you agree to let them go and they end up seriously hurting or killing another person, you will have to deal with guilt for the rest of your life. It is even possible that you could get into legal trouble for failing to provide the police with information that could have gotten a drunk driver off of the road.

4. Never Refuse Needed Medical Attention

 
If an ambulance appears on the scene, it is important to let an EMT examine you. Many people who are injured during a car accident are unaware at first because they have so much adrenaline flowing through their body, but an EMT should be able to determine if you are truly okay or if you need additional medical assistance.

As long as you keep these important pointers in mind, it should be easy to properly respond to an accident. It is also a good idea to contact an attorney if you were injured in the accident. Either way, you need to make sure that you respond to the event in a way that will not have a negative impact on your legal rights.


Anthony Joseph is a freelance writer and editor. Legal representation from attorneys like those found at Steinger, Iscoe & Greene can make the difference between a horrible accident and an accident fully recovered from, and seeking just compensation after a vehicle accident is best done with the help of competent, experienced, and passionate legal advocates. Their professional and compassionate practices will help put you at ease throughout the necessary, post accident, recovery period.

A Heated Court Room Battle Rages Against Johnson and Johnson’s in the De Puy Hip Implant Recall Case

Plaintiffs in a heated court room battle against Johnson and Johnson’s De Puy, the manufacturer of an allegedly defective artificial hip implants, scored an impressive victory last week when Judge Brian R. Martinotti, a New Jersey Superior Court judge, denied Johnson and Johnson International’s attempt to separate the bellwether trials of Barbara Gullo and Kevin Coughlin.

The issue was whether or not the two cases should be tried separately based upon factual differences raised by the defendants who claimed that if the cases were tried together it would create confusion for the jury. The plaintiffs argued that the cases both shared the same claims-essentially that De Puy failed to warn them of various defects inherent in the design of the implants. The plaintiff’s lawyers argued that it would be better to have one jury reach two verdicts rather than potentially have inconsistent verdicts in deciding the same issues.

Barbara Gullo Experienced Problems After Hip Surgery and Ultimately Suffered a Heart Attack

Barbara Gullo is a married 72 year old woman who was working as a secretary when she began experiencing problems after she underwent hip implant surgery with the De Puy ASR XL in December 2008. In August 2010, De Puy recalled all ASR XL implants due to complaints that patients were developing metal poisoning. Ms. Gullo then had her blood test checked on four separate occasions, each showing that she had increased levels of both chromium and cobalt.

In September 2011, she underwent a hip implant revision surgery which resulted in an infection requiring a second revision surgery in October 2011. A month later, she suffered a severe heart attack. In spite of a number of alleged risk factors; Ms. Gullo attributes her heart attack to her multiple surgeries. In addition to pain and suffering and other damages-Ms. Gullo is seeking lost wages. Her husband however is not making a claim for loss of spousal consortium.

Kevin Coughlin Found Chromium and Cobalt in His Blood Stream

In contrast, Mr. Coughlin, a married man, experienced hip pain since the 1990s. He underwent a total hip replacement surgery in 2009 and recovered without complications. In April 2011, after the De Puy recall and after having blood tests that demonstrated elevated levels of both chromium and cobalt he underwent a hip revision surgery. Unlike Ms. Gullo, his spouse is seeking loss of consortium damages.

Based upon the foregoing and additional factual distinctions, the defendants wanted both cases tried separately by two different juries. So far two ASR XL trials have taken place in the United States. Each took approximately six weeks with two weeks being dedicated to case specific testimony rather than generic testimony. In the two cases, one had 17 company witnesses and 10 expert witnesses and the other had 11 company witnesses and 10 expert witnesses.

The First Multiple Plaintiff Case in the De Puy Litigation

Judge Martinotti ordered the trials be consolidated opining that it would be better to eliminate the inconvenience of double litigation on the same facts and transactions and that the factual differences raised by the defendants were not significant to warrant having separate trials based upon the amount of anticipated generic testimony.

According to Ellen Relkin, the attorney for Mr. Coughlin, “this will be the first joint trial of multiple plaintiffs in the De Puy litigation.” Our law firm is currently co-counseling with Ms. Relkin in the Stryker hip implant litigation that is also pending in front of Judge Martinotti.

(This case is governed by US law and is being tried in New Jersey state.)

Author Spencer Aronfeld has enjoyed powerful courtroom victories over Walt Disney World, Wild Oats, P.A.C. Construction, Fedan Tire, and Todel Apartments and has gained international recognition as a lawyer for the people.

Two Landmark Personal Injury Sports Cases

The press coverage of personal injury law being applied to sport injuries in the case of Manchester United youth team player Ben Collett winning £4.3 million for a broken leg during a reserve team game would lead you to believe that these types of claims are fairly new in nature. The reality is somewhat different with cases dating back to the early 1960s.
Outlined below are two landmark cases that helped to shape personal injury law in the UK.

Wooldridge v Sumner (1963)

The case of Wooldridge v Sumner was based around an accident that occurred at xx were an experience horse rider injured a photographer when he lost control of his horse. The accident occurred when the rider galloped too quickly around a corner and lost control of his horse. The horse left the track and entered the crowd. As a result of the panic in the crowd the photographer Wooldridge (the plaintiff) was injured.

Was the defendant negligent because he failed to control his horse? It was held that the injury occurred due to an error of judgement and therefore was not a result of negligence on the part of Sumner.

In the judgement it was outlined that the relationship between a competitor and a spectator was a special one and that a spectator took the risk of any damage done to him during the course of the game, even though his injury resulted from an ‘error of judgment’ on the part of a competitor.

The case set the legal precedent that only “where the competitor deliberately intended to injure the spectator or demonstrated a reckless disregard for the safety of the spectator that the spectator would have a cause of action in respect of the damage done.”

Condon v Basi (1985)

The case of Condon v Basi dealt with the standard of care required by one sportsman to another.

In a game of football (soccer) played in the Leamington local league and tackle from the defendant broken the leg of the claimant. The defendant was playing for the Khalso Football Club and the claimant for Whittle Wanderers. The question before the court was the standard of care expected of a football player.

The defendant in the case was held to be negligent as the tackle had been made in a ‘reckless and dangerous manner’. As the tackle had been deemed to be dangerous the court did not have to resolve the conflict over the status and interpretation of Wooldridge v Sumner.

Another legal precedent was set when the judge Lord Justice Donaldson declared that the standard required to judge if an action was negligence depended on the skill level of those involved. A higher standard should be applied to a professional than a player in a local league.

This latter statement suggests that the court would have applied the standard based upon the reasonable sportsman rather than the approach based upon recklessness and that this would be the approach adopted in the future.

The tort created by Condon V Basi was used as the basis for a number of high profile cases in professional football including Paul Elliot V Saunders and Liverpool Football Club and Dean Ashton’s compensation claim against the Football Association.

Antony Heywood ©

For more infornation on personal injury visits http://www.penningtons.co.uk/Services/Private-individuals/Personal-injury.aspx

Time Flies: Making Sure You File Your Injury Claim Before Its Too Late

Time Flies: Making Sure You File Your Injury Claim Before It’s Too Late

Being involved in any type of accident can be a very disheartening experience. Luckily, innocent victims who suffer injuries often have the right to file a claim against a negligent individual who caused the accident. It’s important to note, however, that these victims can not just sit around and bide their time before filing a claim or seeking legal action. Bottar Leone Attorneys, a New York based law firm, state that the time you have to file can be as quickly as one month depending on the type of injury.

Just like in the criminal justice system, there are statutes of limitations when it comes to filing a claim, and individuals who miss these deadlines will often be out of luck.

What are Statutes of Limitations?

Statute of limitation laws actually set a time limit on how long a person has to file a claim after they’ve suffered an injury due to an accident. If a claim isn’t filed by the time this deadline has passed, an individual loses their right to file one. While these laws may seem pointless, they are meant to protect defending parties from facing unfair burdens at trial. A person who is accused of causing an accident, for instance, may have lost evidence showing he wasn’t at fault if the plaintiff waits five years to file a claim.

Statute of limitation laws may seem like an unfair burden on accident victims, but luckily, there are some legal protections against this. If an action causes an injury, for instance, but that injury doesn’t become apparent for some time, statute of limitation laws often “start the clock” at the point an individual realizes they’ve been injured. This is why people who worked with asbestos were able to bring claims forth decades after the fact.

Do Statutes of Limitations Vary?

It’s important to note that statute of limitation laws are not universal. A person injured in New York, for instance, may have longer to file a claim than an individual in Kentucky. It should also be noted that these statutes can even vary within a state. In New York, for example, a person filing a claim for medical malpractice will have 30 months to do so. For other personal injury claims in the state, however, this deadline extends to three years.

Avoid Missing the Deadline

Luckily, an injured person can avoid reaching the statute of limitations in various ways. Seeking medical treatment, for instance, even when no injury is obvious, can ensure that a person recognizes any seemingly minor issues that can lead to serious injuries down the line.

Additionally, hiring a personal injury lawyer can help as well. These legal professionals will know the statute of limitations laws in their specific state. On top of that, they can ensure that the negligent party or their insurance provider doesn’t stall in an effort to allow the time limit to expire. While having an attorney is important during any legal matter, it’s almost essential in personal injury cases.

The American legal system is set up in such a way that it protects individuals who are injured due to the neglectful actions of others. These rights apply to all individuals within the country, but unfortunately, the rights are not absolute in every way. It’s a simple fact that allowing too much time to pass can negatively affect an individual’s ability to defend themselves. Luckily, quickly filing a claim and having one’s attorney handle it can ensure that fair compensation isn’t missed out on.


The legal system can be very difficult to understand, as it is for writer Melanie Fleury. She has found when there is a reason to consult an attorney, keeping careful track of your injuries, noting important dates and times and getting prompt medical care are all important steps to making your case. Her research also found that Bottar Leone Attorneys know what the time limits are for filing cases and work aggressively for clients to get the compensation they are entitled to.

Why Lawsuits Against Truck Companies are Different

truck company lawsuitProving negligence in an auto accident frequently boils down to showing that a driver violated a traffic law. Violating a traffic law is often dispositive in proving who was at fault and therefore, who must compensate the victim for losses as a result of the accident.  Every jurisdiction has statutory rules of the road.  According to trucking accident law if a driver is given a ticket for violating a rule, then he or she likely caused the accident.  When the negligent party was driving a commercial truck the rules are the same.  If the driver of the truck broke a law related to operating the truck and as a result caused an accident, then the truck driver or the driver’s employer would be liable. That’s why it’s important for every business owner to look into commercial law before opening up just in case they run into any legal troubles. However, a lawsuit against a truck driver or a truck company can be very different from a lawsuit against the driver of a car as the laws that apply to the trucking industry are different.  Of course truck drivers must follow the same basic rules of the road as cars, such as stopping at red lights and obeying posted speed limits.  However, the trucking industry is subject to additional rules both on the federal and state level that effect the licensing of truck drivers, the insurance trucking companies must carry, and the operation and maintenance of the trucks.

In order to qualify for a license to drive a commercial truck, drivers must attend special classes on how to drive a truck safely as well as how to load and unload the truck.  Such requirements are not necessary to receive a license to drive a car.  Thus, if you are injured in an accident where the truck driver did not receive the proper training or did not have the required license, then the truck driver will be liable for your injuries.  If the trucking company that employed the driver knew that the driver was not properly trained or failed to make sure that the driver had the proper training and credentials, then it was negligent as well.

In addition, the Federal Motor Carrier Safety Administration (FMCSA) issued regulations requiring routine alcohol and drug testing for truck drivers, the proper transportation of hazardous materials, compliance with hours of service rules, maintaining log books, and truck maintenance.  If a truck driver or his or her employer violates any of the FMCSA’s rules resulting in an accident, then negligence can be fairly easily established, strengthening a victim’s personal injury lawsuit against the truck driver and the trucking company.

Furthermore, lawsuits involving the negligence of a trucking company are distinguishable from lawsuits involving passenger vehicles in that the financial stakes are often significantly higher. State financial responsibility laws require car drivers to carry a minimum amount of liability insurance.  For example, Oklahoma drivers are required to carry at least $25,000 coverage for injury or death of one person, $50,000 for injury or death of two persons, and $25,000 for property damage.  Federal law requires that truck drivers, on the other hand, carry much more insurance as losses incurred in truck accidents tend to be greater than in automobile accidents.  Trucks carrying non-hazardous goods are required to carry a minimum of $750,000 in coverage for property damage and injury.   A truck carrying hazardous materials is required to carry at least $1,000,000-$5,000,000 in coverage.

If you were a victim of a truck accident it is important to immediately contact an experienced truck accident attorney.  The rules that apply to trucks are complicated and distinguishable from the rules that apply to cars.  Thus, it is critical that the lawyer representing you is familiar with the nuances of the laws that apply to truck accidents to ensure that your case receives the best possible outcome.

PLIVA, Inc. v. Mensing: The Preemption Puzzle & Product Liability

product liabilityDrug manufacturers have a duty to provide adequate warnings to consumers about the dangers their drugs present.  If a drug manufacturer knows or should have known about a risk of injury and fails to adequately disclose it, then under the product liability law theory of “failure-to-warn” the manufacturer may be liable to a consumer who is injured by the drug.  However, when the problematic drug is a generic version of a branded drug, the question of the adequacy of labeling becomes a bit more complex.  In PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011), the Supreme Court of the United States was presented with a failure-to-warn case that it had to examine in light of the concept of federal preemption.

In 2001 Gladys Mensing was prescribed Reglan by her physician. Reglan is a brand name for metoclopramide (MCP),  a drug that is used to treat diabetic gastroparesis as well as other ailments.  MCP received FDA approval in 1980 and soon thereafter A.H. Robins Company began marketing it as Reglan.  A few years later it was discovered that long-term Reglan use was associated with a neurological disorder called tardive dyskinesia (TD).  There is no cure for TD.  As required by the Federal Drug Administration (FDA), in 1985 Reglan modified its label to include a warning about TD, and in 2005 the label was again modified to recommend that Reglan be used for no more than 12 weeks.  Pursuant to the guidelines of the Hatch-Waxman Act, a generic version of Reglan was introduced to the marketplace and manufactured by PLIVA.  As required by the Hatch-Waxman Act the generic version of Reglan had the same warnings as Reglan.

When Mensing filled her prescription the pharmacist gave her a generic version of MCP manufactured by PLIVA, Inc.  After using it for 4 years, in 2005 Mensing was diagnosed with TD.  Mensing sued PLIVA in the U.S. District Court asserting the Minnesota law based tort claim that PLIVA failed to adequately warn about the dangers of long-term use of MCP.  PLIVA asked the court to dismiss Mensing’s state-based failure-to-warn claim based on federal preemption grounds since the state tort claim conflicted with the labeling requirement of federal law. Mensing v. Wyeth, Inc., 562 F. Supp. 2d 1056, 1065 (D. Minn. 2008).  The District Court granted PLIVA’s motion. Mensing appealed to the Eighth Circuit, which sided with Mensing reversing the District Court’s decision. PLIVA appealed to the Supreme Court.

The central issue of the Mensing case is whether federal law that requires labeling of generic drugs to be the same as their branded equivalents preempts state law that suggests different labeling.  Article VI, Section 2 of the United States Constitution requires that where there is a conflict between federal and state law, federal law preempts state law.  After reviewing the Hatch-Waxman Act and FDA regulations, the Supreme Court concluded that generic drug labeling was meant to be the same as the branded drug labeling.  If PLIVA had changed its labeling to provide a stronger warning as required by state law, it would have violated federal law.  Thus, any duty imposed by state law that required additional warnings, including heightened warnings would be in conflict with federal law and preempted by it.

Even though the Supreme Court concluded that federal law preempted state law, arguably there were steps that the defendant could have taken to both provide a stronger warning on its MCP and comply with the requirements of the FDA and the Hatch-Waxman Act.  For example, it could have sought FDA approval for a change in the labeling.  Should federal preemption inhibit  drug companies from providing consumers and physicians with enough information to make informed decisions about using a product?

For more information about product liability visit www.Parsonslawgroup.com