Washington DC Injury Lawyer Blog

Supreme Court Rules Against Patients in Generic Drug Maker Liability Case

July 2, 2013 | Lebowitz & Mzhen

The U.S. Supreme Court ruled recently regarding the liability of a generic drugmaker whose pain reliever left a woman severely disabled.

The lawsuit itself, Mutual Pharmaceutical Co., Inc. v. Bartlett, centered on the fact that the label for the anti-inflammatory did not carry a warning regarding the potential rare side effect of developing Stevens-Johnson syndrome (SJS), which is precisely what happened to the plaintiff in the case. It also accused the maker of producing a dangerous product. The plaintiff’s reaction was so severe, that she developed toxic epidermal necrolysis, spent 10 weeks in the hospital, suffered two incidents of septic shock, suffered burns to 60% of her body, endured a medically induced coma, and required 12 separate eye surgeries.

At the time the plaintiff took the medication, the label did not have a warning regarding the risk of SJS, although the package insert did. Following the ordeal, the FDA recommended that all drugs within this class (non-steroidal anti-inflammatory or NSAID) carry a warning regarding toxic epidermal necrolysis.

The plaintiff in the case sued the drug manufacter, claiming that the drug was defectively designed. A lower court awared her $21 million in damages, including amounts for pain and suffering, loss of enjoyment of life, and past and future medical expenses. The drugmaker appealed, alleging that federal law preempts lawsuits for the defective design of drugs against generic drugmakers; the argument being that the original manufacturer designed and sought approval from the FDA for the chemical makeup of the drug. There were also allegations regarding the label, which the drugmaker challenged on the same grounds.

The Reality of Cruise Line Lawsuits

June 28, 2013 | Lebowitz & Mzhen

Following the several recently publicized cases of cruise ships encountering trouble while at sea, there has been widespread speculation regarding passengers filing lawsuits.

The Carnival Triumph, for example spent several days stranded at sea without any air conditioning, functioning toilets, or hot food. Therefore, several of the Triumph’s passengers have begun to consider their legal options.

In response to the incident, Carnival offered the Triumph passengers a full refund, credit towards a future cruise, reimbursement for specific on board expenses, and an additional payment of $500 per passenger.

While many passengers found the offer to be insulting, considering the conditions that they had to endure, unfortunately due to the relevant laws they may not be entitled to much, if anything, more than what they have already been offered.

The primary obstacle in cruiseship lawsuits is the incredibly limiting terms on the cruise tickets themselves, which form a legally binding contract. Many individuals on vacation do not realize that the ticket in their hand is also densely packed with disfavorable contract terms, and may unknowingly waive many of their rights.

Generally speaking, cruise ship lawsuits are governed by maritime law. This means that cruiseliners may not be held liable for damages related to emotional distress or mental suffering, unless caused by the cruise line’s negligence, and resulting in an actual physical injury. A simplified example of emotional distress leading to physical injury might be if an individual begins vomiting uncontrollably, or has some other directly related physical affliction.

Furthermore, like any other binding corporate contract, sometimes referred to as an adhesion contract (i.e., take it or leave it, in nature), there is a venue selection clause. In the case of the Carnival tickets, all lawsuits must be filed within the federal court located in Miami, Florida. Therefore, individuals wishing to sue would have to hire Florida attorneys, and may face costs flying to the venue for relevant court proceedings, such as depositions. Additionally, cruise ship tickets are reportedly infamous for including class action waivers within their terms, creating further difficulty for passengers wishing to band together.

Jeeps Recalled for Potential Fuel Tank Rupture Risks

June 21, 2013 | Lebowitz & Mzhen

Chrysler Group recently announced a recall affecting nearly 1.56 million 1993-1998 Jeep Grand Cherokee and 2002-2007 Jeep Liberty SUVs.

However, the company allegedly only reluctantly agreed to to the final recall after nearly 1.1 million 1999-2004 Grand Cherokees were excluded from NHTSA’s original recall request for 2.7 million vehicles. According to Chrysler, the government was incorrect in its original analysis regarding which vehicles were affected.

The recall is reportedly due to an issue with the fuel tank, which can rupture and lead to an explosion and or fire in the event of a rear end collision.

The recall excludes 1999-2004 Grand Cherokees, which are of a different design than the earlier models that NHTSA had initially suggested would be subject to the recall. However, concerned customers can contact their local jeep dealership for information regarding the safety of their vehicle.

The most publicized cases of issues with the Jeeps occurred when rear end collisions resulted in fires which caused death. In those cases, the Jeeps were either stopped or driving at a slow speed, and were hit from the rear by vehicles traveling at highway speeds.

While detailed information was not readily apparent, the conclusion was that the safety issue comes down to the hitch. Apparently the sturdy structure of a trailer hitch fastened into the vehicle’s rear frame helps to absorb some force from a rear crash. As part of the recall, Jeep will inspect and in some cases install rear hitches for the affected vehicles.

Lawsuit Dismissed against Marshall University from Peculiar Personal Injury Incident

June 14, 2013 | Lebowitz & Mzhen

The Marshall University Board of Governors was recently granted dismissal of a lawsuit in which it was named defendant. The claim was dismissed because the plaintiff in the case failed to meet the pre-suit notice requirement under the West Virginia code, which requires notice of the claim and relief sought, sent to the defendant by certified mail at least 30 days prior to the filing of the suit. Pre-suit notice is typically not required under West Virginia law, except when the defendant is a healthcare provider or a governmental agency, as in this case.

The case arose out of an interesting fact pattern, whereby one student was attempting to shoot bottle rockets out of his rectum during a fraternity party.

According to the plaintiff, during a house party in May of 2011, one young man became intoxicated, and decided to attempt to “shoot bottle rockets out of his anus on the [fraternity house] deck.” In doing so, he startled the plaintiff, who then jumped backwards, causing him to fall off of the deck of the fraternity house, and becoming injured in the process. He was reportedly lodged between the deck and an air conditioning unit for some period of time. The plaintiff further alleges that there was no railing on the deck at the time of the incident, and that this condition had existed for several months, if not years, prior to the fall.

The suit claims that the fraternity was negligent in failing to provide a safe deck, and that the young man attempting the fireworks was at fault for his actions, which involved consuming alcohol that is known to potentially lead to dangerous activities.

Slip and Fall Accident Against Walmart Receives $11 million Verdict

June 7, 2013 | Lebowitz & Mzhen

Walmart is one of the most well known companies in America today. In fact, it has consistently been ranked at the top of the Fortune 500 rankings, and last month was awarded the #1 spot, with $444 billion in revenue in 2012.

Thousands of civil lawsuits are filed every year against Walmart for various reasons. For example, earlier this year in Virginia, one Walmart customer reportedly won a verdict against Walmart for $11,250,000.00 following a slip and fall accident that left him severely disabled, and permanently in pain. The man’s injuries included numerous fractured bones in his back, his elbow, and his hand, and a rotator cuff injury. The reason for the unmarked wet floor was allegedly because an employee had left the area after mopping it in order to retrieve a warning cone.

The purpose of the seemingly large dollar amounts in cases like this one are several fold. First of all, the award sets out to cover all of the previously incurred medical expenses, and cover all those medical and related therapies and costs that may be incurred in the future. Further, it attempts to compensate the individual for the pain and suffering that they have suffered. It is also common for awards to compensate the individual for any previously lost wages, and if the person is unable to work, what they might have been able to earn. Lastly, punitive damages, which seek to punish the defendant for the wrongful conduct, are also sometimes a part of personal injury damage awards.

No Criminal Charges for Death in Maryland Late Term Abortion Case

May 28, 2013 | Lebowitz & Mzhen

Authorities released their determination regarding the case of a 29 year old New York teacher who was admitted to the hospital after reportedly complaining of chest pain and other discomfort and died just hours later, apparently having suffered massive internal bleeding into her abdominal cavity.

The investigation revealed that some four days before she died, the woman had visited a Germantown, Md., abortion clinic to begin the several day long procedure to terminate her 33 week pregnancy, which she reportedly sought after discovering her unborn child had developed fetal abnormalities.

According to other sources, following an investigation into the matter, Maryland authorities have decided to not bring any criminal charges against the doctor who performed the procedure, and further found “no deficiencies” in the woman’s care at the abortion facility.

Lawsuits Being Filed Following Texas Fertilizer Plant Explosion

May 22, 2013 | Lebowitz & Mzhen

Following the catastrophic explosion at a fertilizer distribution and storage plant in Texas last month, in which the building caught fire and then exploded as firefighters were attempting to douse the flames, several individuals have begun to file personal injury lawsuits. The total extent of damage done remains unknown, though it is estimated that at least 150 buildings were damaged or destroyed, at least 15 people were killed, and many more were injured or reported missing.

Of the two lawsuits recently filed, one was brought by insurance companies on behalf of various individuals and businesses accusing the plant’s parent company of negligent operation of the location, which allegedly led to the accident.

The second suit was filed by a woman who lived in a neighboring apartment, which was destroyed by the blast. She is seeking up to $1 million due to loss of her possessions, and the physical and emotional injuries she suffered as a result of the explosion.

Further lawsuits are expected against the above named and other defendants. For example, the manufacturers of the fertilizers that were being stored at the facility are other potential defendants.

The last inspection performed by the Occupational Safety and Health Administration (OSHA) reportedly occurred 28 years ago, and uncovered at least five “serious” violations. One of these violations dealt with the way in which anhydrous ammonia was allegedly improperly handled and stored. According to a report released by the plant in late 2012, it was then storing 110,000 pounds of the chemical,in addition to 540,000 pounds of ammonium nitrate.

Skechers Faces Lawsuits Alleging “Shape-Ups” Caused Severe Knee Injuries

May 15, 2013 | Lebowitz & Mzhen

An announcement was made recently, regarding the filing of several different lawsuits against Skechers on behalf of individuals from four different states, who have suffered meniscus injuries allegedly caused by the defective design of Shape-Ups toning shoes. The plaintiff consumers reside in Maryland, Mississippi, West Virginia and Wisconsin.

According to the lawsuit, the plaintiffs were injured when the rocking bottom of the shoe suddenly caused them to fall, resulting in a torn meniscus. A torn meniscus is a painful knee injury, which involves damage to the cartilage in between the thigh bone and the shin bone (the meniscus). While physical therapy can sometimes help, surgery is often needed in order to adequately fix the injury.

This is not the first time Skechers has faced scrutiny for its Shape-Ups. The shoes were marketed toward consumers for having various health benefits, including allegedly increasing muscle tone simply by wearing them. According to documents filed by the plaintiffs, an independent study on the shoes found no evidence of increased intensity of exercise, increased burning of calories, or increased muscle strength or tone from wearing them.

Therefore, in 2012 Skechers was ordered by the Federal Trade Commission to pay $40 million for its misleading advertising campaigns. This order included a court determination that Skechers failed to warn consumers about potential risks associated with these shoes, and that the company had not performed adequate safety testing.

Mandatory Bicycle Helmet Laws Lead to Lower Death Rates for Children

May 7, 2013 | Lebowitz & Mzhen

Earlier this week, the American Academy of Pediatrics made a press release about the results of a study regarding the effectiveness of laws that require bicyclists to wear helmets.The data revealed that fewer deaths occurred among youths who were involved in bicycle-motor vehicle crash within those states that had mandatory helmet laws in place.

Researchers set out to determine the efficacy of mandatory bicycle helmet laws in reducing injuries and death rates nationwide by analyzing data from the Fatality Analysis Reporting System for all U.S. bicyclists. They looked at data for all accidents involving children under the age of sixteen who were either severely injured or died during the period of January 1999 until December 2009. They compared data for states with mandatory laws versus those without.

During the relevant period, a total of 2,451 children suffered incapacitating injuries or died in bicycle-motor vehicle crashes. States with mandatory helmet laws had a lower rate of incapacitating injuries or death at approximately 2 per 1 million, versus 2.5 per 1 million. The associated lower rates held true even after adjusting for certain relevant factors.

Maryland is one of the 21 states that requires bicyclists to wear helmets, which could have a direct impact on residents who bicycle in the DC area.

Federal Court Hears Oral Argument on NFL Concussion Litigation Motion to Dismiss

April 30, 2013 | Lebowitz & Mzhen

Oral arguments were heard in a federal district court in Pennsylvania earlier this month over the motion to dismiss filed by the National Football League regarding concussion injury litigation.

Plaintiffs contend that for many decades, the National Football League has withheld information on purpose and misstated the potential harm and safety risks that result from concussions and miscellaneous other injuries sustained by football players in the course of play. The legal filings include fraud and negligence claims.

The plaintiffs’ attorney summarized the NFL’s responsibilities to the players by stating at oral argument that the NFL was holding itself out to be the “guarantor of safety”.

Counsel for the defense claimed that the players’ collective bargaining agreement (“CBA”) preempts the athletes’ legal claims, and that the parties should engage in arbitration in lieu of the tort litigation process. He further noted the defendant’s position that the NFL, the players, and the teams each have involvement and share responsibility in regards to players’ well being and safety.

There are now over 4,000 individual plaintiffs participating in this and related litigation, and this figure is continuing to increase. These plaintiffs make up over 200 separate lawsuits that the court has consolidated and transferred to the Eastern District of Pennsylvania.

The National Football League Players’ Concussion Injury Litigation, has resulted in increased scrutiny from legal and sports circles. The plaintiffs in these cases include several former NFL players and/or their family members, who have suffered a variety of degenerative brain diseases or other related conditions due to incurring repeated concussions during the course of their NFL careers.

Following this hearing, the judge will decide if the case should survive the defendant’s assertions that the CBA preempts the injury claims, or whether it should be dismissed.