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Articles Posted in Personal Injury Litigation

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An appellate court ruled in favor of a pharmaceutical company in an appeal of a summary judgment order and a jury verdict in a multi-district products liability lawsuit. Secrest v. Merck, Sharp & Dohme Corp., part of In re: Fosamax Products Liability Litigation, No. 11-4358-cv (2nd Cir., Jan. 30, 2013). The Second Circuit affirmed a district court’s order granting summary judgment for the defendant (PDF file) on a failure to warn claim, and in a separate ruling issued the same day, it affirmed a jury verdict in favor of the defendant on a design defect claim. Several days after the court’s ruling, a federal jury ruled in favor of a different plaintiff on a failure to warn claim. The two cases illustrate the difficulty of proving causation and damages in large pharmaceutical cases.

Fosamax, the drug at the center of the litigation, was used to treat osteoporosis in women going through menopause. An alleged link between the drug and osteonecrosis of the jaw (ONJ), a condition in which the jawbone begins to die, led to a wave of products liability lawsuits around the country. Some plaintiffs also allege that the drug contributed to femur fractures and other bone injuries. The Judicial Panel on Multidistrict Litigation consolidated most of the pending federal lawsuits in the U.S. District Court for the Southern District of New York.

Plaintiff Linda Secrest filed suit against Merck, Fosamax’s manufacturer, in Florida in 2006, asserting causes of action for design defects and failure to warn of the drug’s risks. She claimed that she took Fosamax from June 1998 until March 2003, and then began taking it again under a different doctor in December 2003 through April 2005. She developed ONJ around March 2004. The trial court granted the defendant’s motion for summary judgment on her failure to warn claim, and a jury entered a verdict in Merck’s favor in October 2011 on the design defect claim.
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The parents of an eight year-old child have filed suit against the child’s school, alleging negligence and violations of their child’s statutory and constitutional rights. Doe v. Ball State University, et al, No. 18C01-1208-PL (Circuit Court No. 1, Delaware County, Ind., Sept. 28, 2012), removed to No. 1:12-cv-01464 (S.D. Ind., Oct. 10, 2012). The suit claims that the school negligently failed to supervise its students, allowing several of the child’s classmates to commit repeated acts of sexual abuse against him. The parents claim the school had knowledge of the abuse, but failed to intervene or notify them. The suit is seeking compensatory and punitive damages.

The plaintiffs, identified in court papers as John and Jane Doe, enrolled their child, identified as Junior Doe, at Burris Laboratory School in Muncie, Indiana. Burris is a K-12 school operated by Ball State University. Junior Doe was eight years old and in the second grade at Burris in the fall semester of 2011. His parents received a telephone call from another student’s parent on December 5, 2011, informing them that Junior had been the victim of sexual abuse and harassment at the school.

The Does learned several days later, according to their complaint, that teachers and administrators at Burris knew of the abuse but did not inform them. At this time, the school told them about the extent of the abuse, which allegedly occurred in the restrooms, library, and one or more classrooms at the school. About four other second-grade boys allegedly touched Junior inappropriately in intimate areas and forced him to engage in other forms of sexual conduct. Students had largely unsupervised and unrestricted access to the restrooms, library, classrooms, and computer equipment. The Does allege that the students were imitating acts they saw in pornographic images and videos viewed on school computers and iPads. They claim that other students approached their teacher to report the abuse, but the teacher allegedly “told the students to sit down and stop ‘tattling'” on others. Complaint at 5.
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“Energy drinks,” a general category of drinks with high levels of stimulants like caffeine, taurine, and guarana, have been the subject of much scrutiny in recent years, as their excessive consumption has allegedly led to multiple injuries and deaths. Four Loko, an energy drink that also contains alcohol, has been especially controversial, earning the nickname “Blackout in a Can” among many college students. A series of lawsuits has alleged that the stimulants in the beverage mask the effects of the alcohol, leading to over-consumption, risky behavior, and in some cases, injury or death.

Two insurance companies, including one based in Indiana, have filed a federal lawsuit requesting a declaration that they are not obligated to defend or indemnify Four Loko’s manufacturer, Phusion Projects, in these lawsuits. The companies have reportedly already obtained a similar declaratory judgment, meaning that it may prove difficult for future claimants to recover damages from the beverage maker.

The mixture of caffeine and alcohol, according to doctors quoted by Fort Wayne’s WANE News, can pose serious health risks by concealing the depressive effect of the alcohol content and making the individual more likely to continue drinking. The person might not feel drunk because of the caffeine content, so the person is allegedly also more likely to engage in risky behaviors like driving.
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An Illinois appellate court overturned a $30 million verdict in favor of a chemical-flavoring plant worker who claimed that a chemical used in popcorn butter flavoring caused him permanent lung damage. The verdict in Solis v. BASF Corporation was reportedly the largest in a series of popcorn flavoring lawsuits. The appellate court reviewed the question of whether Illinois’ statute of limitations barred the plaintiff’s claim, and ruled that the trial court erred by rendering a directed verdict for the plaintiff on that issue.

The plaintiff, Gerardo Solis, began a nearly two-decade career in the flavoring industry in 1987. His job duties, according to the court’s opinion, often involved working with or near butter flavorings containing the chemical diacetyl. Solis worked at Flavorchem from 1998 to 2006. He spent two years as a compounder, which involves mixing different ingredients to create a final flavor product. He was then promoted to supervisor, but continued primarily working in the area of the plant that produced powder flavorings. He claimed that he noticed an increase in the plant’s use of diacetyl, particularly in butter flavorings for popcorn, beginning in 2000, and that he experienced significant exposure to the chemical from 2000 to 2004.

Diacetyl provides the buttery flavor and aroma in popcorn and other food products. It has been linked to respiratory problems in workers with prolonged exposure, including bronchiolitis obliterans, an inflammation of the small airways in the lungs. This can cause a permanent loss of pulmonary function in some cases. A recent study also found a link between diacetyl and a brain protein believed to contribute to Alzheimer’s disease. Solis received a diagnosis of bronchiolitis obliterans in June 2006. He allegedly suffered permanent lung damage and was eventually told he needed a lung transplant.
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While trampolines remain a popular recreational activity for many children and teenagers, pediatricians have long warned that they pose serious dangers of debilitating spinal fractures or traumatic brain injuries. The American Academy of Pediatrics (AAP) renewed its warnings in a paper published this month in its journal, Pediatrics, reviewing the types of accidents that can occur with trampolines and the injuries that are likely to result.

The trampoline, in its modern form, originated as a “tumbling device” intended for athletic training. A 1945 patent obtained by George Nissen, a competitive gymnast, described a device for use in gymnastic and acrobatic training. Later modifications to the design allowed manufacturers to produce units that could be shipped and assembled individually, and the recreational trampoline was born. While organizations like the AAP, the American Academy of Orthopaedic Surgeons (AAOS), and the U.S. Consumer Product Safety Commission (CPSC) provide safety recommendations for the proper maintenance and use of trampolines, trampoline-related injuries have persisted. Recent safety modifications to trampoline designs, such as protective netting and padding, have not significantly reduced injury rates, according to the AAP. The AAOS noted that injury rates increased parallel to the growth in popularity of trampolines. The AAP has observed, however, that trampoline purchases peaked in 2004, and injury rates have declined since then.

The AAP estimates that an average of 100,000 trampoline-related injuries occur every year. About 3,000 of those injuries result in hospitalization or fatalities. Injuries can result from collisions between multiple users, falls from the trampoline to the ground or floor, and collision with the trampoline frame or springs. While injuries to the upper and lower extremities, particularly fractured or sprained ankles, are the most common type of trampoline-related injury, head and neck injuries are the most dangerous and damaging risk. Impact to the head or neck can cause traumatic brain injury such as concussion, or damage to the cervical spine. In rare cases, trampoline-related neck injuries can cause a vertebral artery dissection, which can cause stroke or other long-term impairment. The AAP estimates that about 0.5% of all trampoline injuries, which could be as many as five hundred each year, result in permanent neurological damage.
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The Indiana Court of Appeals reversed a trial court’s order granting summary judgment for the plaintiffs, and denying summary judgment for the defendants, in a dispute over insurance coverage. In Alea London, Ltd. v. Nagy, et al, two plaintiffs, who had obtained a judgment against a bar for injuries sustained in a bar fight, sued the bar’s insurance company for the judgment amount. The insurer argued that the bar fight constituted an act of battery excluded from coverage. The appeals court agreed, reversing summary judgment for the plaintiffs and instructing the trial court to grant summary judgment for the defendant.

The case originated with a fight that took place on April 30, 2004 at the Copper Penny Sports Bar in Hammond, Indiana. Plaintiff Christopher Buckler had a “verbal exchange” with a woman after he accidentally caused her to spill her drink on herself. Anthony Aponte, apparently in response to the exchange, hit Buckler over the head with a bottle. Buckler’s friend Richard Nagy, Jr., did not witness the battery on Buckler, but saw Aponte leaving the bar with Brandon Odonovich. Nagy followed them, but as soon as he stepped outside the bar, either Aponte or Odonovich struck him in the head with an object, knocking him unconscious.
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Victims of the stage collapse at the 2011 Indiana State Fair had until August 1, 2012 to approve a proposed settlement involving the State of Indiana, the owner of the collapsed stage, and the stage’s manufacturer. The stage owner rejected the settlement plan after the deadline, saying not enough plaintiffs had agreed. The Indiana Legislature approved two separate settlement amounts for the victims, but the state has not disbursed the second set of funds while the other settlement negotiations were in progress. Without a settlement of the plaintiffs’ claims, some of the defendants may attempt to file cross-claims against the state.

The stage collapse occurred at about 8:46 p.m. on August 13, 2011, as the country music band Sugarland was preparing to perform on the fair’s main stage, known as the Grandstand Stage. High winds from a nearby thunderstorm caused stage rigging and scaffolding to fall onto a crowd of fans. Seven people were killed, and more than fifty were injured. The Indiana State Fair Commission contracts private companies for many of the fair’s services. A private contractor produced the Grandstand Stage performances, and other contractors handled stage construction, sound and lighting, and other technical functions. An investigation by two engineering firms retained by the state concluded that the state could have been better prepared, that public safety protocols at the fair were not clear, and communication between fair officials and contractors regarding weather conditions was not good.
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The parents of a woman who died after falling from a staircase at a 2010 Halloween party have filed a lawsuit against the Chicago hotel and event companies that hosted the party. The suit alleges negligence against the party’s hosts for providing unlimited alcohol to the attendees, and failing to provide adequate security to keep them safe. The lawsuit draws on principles of premises liability and the Dram Shop law, but it may also have to contend with issues of comparative fault.

On October 30, 2010, 23 year-old Megan Duskey and friends went to a party at the Palmer House Hilton hotel in Chicago. Around two thousand guests were expected at the party, which was scheduled to go until 2:00 a.m. According to one of Duskey’s friends, they had been at the party for about thirty minutes when she stepped away for a moment. When the friend returned, her other friends told her that Duskey had fallen. Duskey had apparently tried to slide down a banister rail in a stairwell. She fell four stories and died instantly of head trauma. This occurred at about 10:30 p.m. The coroner’s office later ruled her death an accident.

Duskey’s parents, Deborah and James Duskey, filed a lawsuit on July 24, 2012 in Cook County Circuit Court in Chicago, naming the Palmer House Hilton and its parent, Hilton Worldwide, as defendants, along with the event companies, Surreal Chicago and Adrenaline Y2K. The party’s hosts, according to the lawsuit, allowed ticket holders at the party to “consume unlimited amounts of alcoholic beverages,” but did not have security to protect partygoers. The lawsuit alleges ten total counts and seeks over $500,000 in damages from the defendants.
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The Indiana Supreme Court has ruled that a man who was injured when his father drove into him, pinning him between two vehicles, may sue for damages. A trial court dismissed the lawsuit in Robert L. Clark, Jr. et al vs. Robert L. Clark, Sr., based on a state law that bars suit between family members in certain circumstances. The Indiana Court of Appeals overturned the trial court’s dismissal based on a different reading of the state law, and the Indiana Supreme Court affirmed the appeals court’s decision.

Robert Clark, Sr. was driving a car on September 5, 2007, in which his son, 46 year-old Robert Clark, Jr., was a passenger. The son got out of the car when they got to their destination in order to direct his father into a parking spot. He stood several feet in front of the car and motioned his father forward into a parking space. Once the car was fully in the spot, the son motioned to his father to stop the car. The father pressed the accelerator instead of the brake pedal. The car lurched forward into Robert Clark Jr., pinning him between his father’s vehicle and the adjacent vehicle and causing extensive injuries to his legs.

Robert Clark, Jr. and his wife, Debra Clark, sued Robert Clark, Sr. for negligence. The trial court granted summary judgment for Robert Sr. based on his assertion of the Indiana Guest Statute as an affirmative defense. The Guest Statute bars suit for injuries against the operator of a vehicle by a family member of the operator, or a hitchhiker, provided the injury occurred while the person “was being transported without payment in or upon” the vehicle. The statute allows an exception for “wanton or willful misconduct” by the driver.
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Indiana ranks in the middle of the fifty states and the District of Columbia when it comes to injury prevention, according to a recent study. The study, entitled “The Facts Hurt: A State-By-State Injury Prevention Policy Report,” is the work of the Trust for America’s Health (TFAH), a health care policy organization, in partnership with the philanthropic Robert Wood Johnson Foundation. The study ranks states and D.C. based on ten “key indicators” relating to injury prevention laws or regulations. Indiana has five of the ten. It also ranks the states based on the total number of annual injury-related deaths per 100,000 people. With a rate of 60.4, Indiana ties Kansas for the twenty-seventh highest rate.

The study analyzed injury data, which it says account for 180,000 deaths per year in America. The lifetime costs of injuries in the U.S., which includes both immediate costs and ongoing care needs, as well as lost income and productivity, exceeded $406 billion in 2000. Injuries, as compared to communicable and non-communicable disease, are the leading cause of death for Americans between the ages of one and forty-four. At 97.8 njury-related deaths per 100,000 people, New Mexico has the highest annual rate. New Jersey, with 36.1, has the lowest. Indiana and Kansas, tied at twenty-seventh, are almost exactly in the middle.
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