Indiana Injury Lawyer Blog

April 4, 2013

Bicycling in Indiana – A Rider’s Legal Guide

by Parr Richey Frandsen Patterson Kruse LLP

Spring has sprung and the weather, slowly but surely, is getting warmer. With the change of seasons, Indiana residents hit the parks and streets for a variety of recreational activities. Over this spring, we will keep you up to date on news, warnings, laws, and other important safety and legal information for your outdoor activities.Biking
According to “Bicycling and Walking in the United States: 2012 Benchmarking Report”, bicyclist rates are holding steady but, unfortunately, so are bicyclist injuries rates. In understanding the potential dangers of bicycling, researchers examined trips made by individuals by all modes of transportation. Twelve percent of trips are made by pedestrians or bicyclists, but they make up fourteen percent of all traffic fatalities. In addition, the report identified that, despite the higher fatality level, only 1.6% of federal traffic funding goes towards pedestrians and bicyclists.

Under Indiana Code 9-21-11, bicyclists in Indiana must obey all the rules of the road and have “all the rights and duties under this article that are applicable to a person who drives a vehicle”. They should go with traffic, not against, and must remember to hand signal left, right, and slowing down.

Important laws to remember when biking:
1.) The number one rule is that bicyclists must be predictable and cautious. Clearly communicate your actions, and don’t surprise drivers.

2.) In most areas on regular roads or highways, bicycles are required to be equipped with a bell and, past dusk, have a red lamp on the back of the bike and a white lamp on the front.

3.) In most areas, it is illegal to ride side-by-side with a fellow bicyclist. This extends the pair too far into the road and limits navigation. Some residential areas and most bike paths permit such riding, but one should always prioritize safety first.

4.) Wear a helmet. Currently, there is no mandatory helmet law in Indiana. This could change, and according to a 2010 report, 70% of bicycle fatalities involved a bicyclist not wearing a helmet.

5.) For recreational riding, it is most advisable to take advantage of bike paths. Use MapMyRide or a similar tool to map out a safe bike path to follow.

6.) For more biking laws, visit Bicycle Indiana’s website.
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March 27, 2013

Winter Slams Indiana Drivers

by Parr Richey Frandsen Patterson Kruse LLP

On March 26, Indianapolis’s morning commute was rife with weather related dangers. After a historic snowfall of 6.2 inches in Indianapolis Sunday and other records being broken throughout the state, Indiana first responders were confronted with a staggering 52 accidents on Tuesday morning between just the hours of 5am and 10am.A total of 9 inches over the past several days, slick driving conditions, and a shortage of contractor plows to handle the situation led to a commuter nightmare. Indiana Department of Public Works has typically followed a policy to utilize contractor plows if the snowfall exceeded 6 inches, however, this snowfall was not met with the same determination.

Weather Related Accidents
Obviously weather severely affects the risk of an automobile accident. Twenty-four percent of all accidents occur during bad weather and, according to the National Highway Traffic Safety Administration, 11% of all traffic fatalities occur from accidents involving bad weather.

In the event of an auto accident suit, courts will take the weather into consideration. Where one is driving according to street signs and abiding by the speed limit, they may still be found negligent if the courts find that their speed was reckless given the road conditions. The speed limit may say 60 mph, but that does not permit a driver from hitting those speeds in a massive blizzard with little visibility.
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March 18, 2013

Indiana Bill to Set Dietician Standards

by Parr Richey Frandsen Patterson Kruse LLP

Unlike most states, Indiana dieticians can currently practice without a license. But soon that may change. House Bill 1272 has passed the House and is currently being reviewed by the Indiana Senate. If it passes there it will be the first state-wide framework for dietician standards in Indiana.The bill would require registered dieticians to file for and maintain a valid dietician license in order to operate within Indiana. Jennifer Wickware, a dietitian and a clinical nutrition manager for an Indiana hospital, cited the bill’s importance in protecting dietitians’ names “so that we are making sure that people are getting the right nutrition information from the experts in nutrition.”

The new license requirement would force practicing dietitians to keep up on the practice through 15 additional hours of continuing education per year, in addition to setting a focus or “scope of practice”. Furthermore, when a dietitian is accused of malpractice there are standards they may be held against, and in the event malpractice has committed, a license may be suspended or revoked.

The current requirement is simply certification, which may be satisfied with a bachelor’s degree, a minimum number of practice hours and having passed the nationwide exam. Only licensed dietitians would be eligible to accept Medicare and Medicaid reimbursements, and nutritionists are not mentioned in the bill whatsoever. Nutritionists generally concentrate on teaching groups how to maximize their benefit from nutrition, whereas dietitians focus on working with individuals on their diet, oftentimes directly planning, and possibly administering, their food.

Currently, formal legal remedies for those who have suffered as a result of a dietitian’s negligence are especially difficult, and it is best to contact an experienced personal injury attorney. Professional negligence is the best remedy to pursue against a dietitian in absence of this current bill. Professional negligence forces the injured party to show that the negligent party (i) owed a duty; (ii) that the party breached that duty; (iii) that the breach caused an injury to the plaintiff; and (iv) the plaintiff can show damages. These actions must be filed two years from the time of the negligence, or from the discovery of the injury.

Medical negligence costs the lives of 100,000 individuals every year. The type of damages recoverable are economic damages, including further medical costs or loss of work, for example, non-economic damages such as pain and suffering, and damages associated with impairments such as incapacitation, scars, or long-term chronic suffering.

Your health insurance will likely be involved in any injury suffered due to medical negligence. Insurance can be a difficult sea to navigate, however. The insurance company will likely seek reimbursement for your costs and that reimbursement may be through a medical claim or settlement with the negligent party. It is important to seek attorney advice before consenting to any settlement agreement.
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March 18, 2013

HANDLING MINOR’S CLAIMS FOR PERSONAL INJURIES

by Parr Richey Frandsen Patterson Kruse LLP

As personal injury counsel, we are often faced with the difficult task of working on behalf of injured children and their families. As parents, we understand that injuries to children can involve devastating and heartbreaking situations and present unique legal issues which practitioners need to consider.

When encountered with a claim for injuries to a child, it is initially important to determine the applicable statute of limitations. The general statute of limitations for personal injury claims under Indiana law is two years. Ind. Code § 34-11-2-4. However, because children are legally incompetent due to their minority, they do not have the legal capacity to sue on their own. For this reason a minor’s statute of limitations is generally tolled until they reach majority. Ind. Code § 34-11-6-1. Therefore minors generally have until their 20th birthday to bring personal injury claims.
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March 9, 2013

Car Accident Claims Lives of Three Indiana Teenagers

by Parr Richey Frandsen Patterson Kruse LLP

The town of Versailles, Indiana is reeling from the news of a car accident that took the lives of three local teenagers. The accident occurred Thursday, March 7 when two pickup trucks collided after a local church function. The three victims were declared dead at the scene of the accident. Our condolences go out to the families and friends of those teenagers.

Three other teens were hospitalized from injuries from the crash. Their injuries do not appear to be life-threatening.

This past year has been devastating for the small farming town of Versailles having suffered several tragic losses:

In May 2012, a 15 year old highschool freshman in a all-terrain vehicle accident
In December 2012, an 18 year old from a texting while driving accident.
In March 2011, two elementary students from an accident with a semi-truck.

The teens were students are South Ripley High School. That morning they were serving breakfast at a church to support the Future Farmers of America, of which one of the victims was president. After the event, the students got into two separate pickup trucks and left their own separate routes.

Investigation of the accident has revealed that both vehicles failed to make a stop both entering the intersection of a four-way stop. Rumors of racing have, for the moment, been put aside until further investigation is complete.

Katherine Taul of the Ripley County Tourism Bureau highlighted the impact these accidents make on the small community. “These are all very, very tight communities and everyone knows everyone, so even if you weren’t directly connected or related to them, it still touches everybody.”

According to the U.S. Centers for Disease Control, more Americans aged 5 to 34 are killed in motor vehicle crashes than from any other single cause. Such troubling statistics leave families looking for justice and in many cases in need of funds for expenses related to treatment, emergency services, and funeral costs.

For families needing to file suit on behalf of a loved one lost in an auto accident, Indiana has a wrongful death statute they can recover under. In Indiana, survivors must prove fault of the other driver to succeed in a claim against that driver’s insurance company. The lawsuit must be brought within two years of the accident.

The elements necessary to win a wrongful death suit: (i) the death of a human being; (i) caused by negligence of the other party; (iii) the suit brought by family members suffering monetary injury as a result of the death; and (iv) the appointment of a personal representative for the decedent’s estate.
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February 28, 2013

Plaintiff May Sue Manufacturer of Name-Brand Prescription Drug for Injury Allegedly Caused by Different Company’s Generic Drug

by Parr Richey Frandsen Patterson Kruse LLP

Conflicts between state and federal laws governing prescription drugs led the Alabama Supreme Court to rule that a plaintiff allegedly injured by a generic drug may sue the manufacturer of its brand-name equivalent. In re Wyeth, Inc., et al v. Weeks, No. 1101397, slip op. (Ala., Jan. 11, 2013). Because the plaintiff’s claim alleged deficiencies in the warning label, and not the manufacturing process, the court found that it was “not fundamentally unfair,” slip op. at 52, to hold the defendant liable. The defendant was responsible for drafting the warnings, and the generic manufacturer’s responsibility was to reprint those warnings. The ruling could affect state-level pharmaceutical cases around the country.

The plaintiffs, a married couple, filed suit against five pharmaceutical companies, alleging that the husband suffered injuries from taking the drug metoclopramide, marketed under the brand name Reglan. The drug is used in short-term treatment of various stomach and intestinal conditions, including persistent heartburn. It has been associated with a risk of tardive dyskinesia (TD), a neurological disorder that affects body movements. The plaintiffs allege that the defendants breached a duty to warn Mr. Weeks’ physician of the risk of TD and other side effects. They concede that he never took brand-name Reglan manufactured by Wyeth, but rather generic variants manufactured by other companies. The plaintiffs claim instead that Wyeth and other brand-name manufacturers “falsely and deceptively misrepresented or knowingly suppressed facts about” the drug. Id. at 6.
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February 25, 2013

Two Killed in Indianapolis Ambulance Crash

by Parr Richey Frandsen Patterson Kruse LLP

We extend our condolences to the families of two Indianapolis medics who died from injuries sustained in an automobile accident in the early morning of February 16, 2013. These were reportedly the first fatalities in an on-the-job vehicle collision in the history of Indianapolis EMS.

The accident happened at approximately 3:37 a.m., according to local news station WTHR, at the intersection of Senate Avenue and St. Clair. The ambulance, heading south on Senate, had the right of way, as the traffic light at the intersection was flashing yellow for vehicles on Senate. The lights on St. Clair were flashing red. The ambulance was not responding to a call at the time, so its lights and sirens were not activated. A black Honda headed west on St. Clair allegedly did not stop at the flashing red light and struck the ambulance as it was crossing the intersection. The ambulance’s driver and the other medic were taken to a nearby hospital. The driver, a 24 year-old private, died at the hospital shortly after the collision. The passenger, a 22 year-old paramedic, spent about twenty-four hours on life support and died early Sunday morning.

The Honda’s 21 year-old driver was taken to the hospital for blood testing after the accident and was listed in good condition. An officer claimed to smell alcohol on her breath, and she reportedly admitted to having one-and-a-half drinks before the accident. Police stated on the afternoon of February 17 that preliminary blood alcohol tests on the driver, based on samples drawn about two hours after the collision, were “borderline.” The driver was released while police continued their investigation and awaited results of further blood alcohol testing.
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February 14, 2013

Motorcyclist Awarded Benefits from Underinsured Motorist Coverage by Court

by Parr Richey Frandsen Patterson Kruse LLP

A motorcyclist who suffered severe injuries in a traffic collision may collect underinsured motorist benefits under several policies, the Missouri Supreme Court’s ruled in Manner v. Schiermeier, No. SC92408, slip op. (Mo., Jan. 8, 2013). The court rejected the argument of the two defendant insurers that exclusions for “owned vehicles” precluded coverage of the plaintiff’s vehicle. It found that neither insurer expressly defined “owned” in its policies, and that they did not meet their burden of proof regarding the exclusions. The court also allowed “stacking” of the policies, which could entitle the plaintiff to the maximum coverage amount under each policy.

Nathaniel Manner was seriously injured in an accident with Nicholas Schiermeier in September 2004. Schiermeier’s vehicle struck Manner’s Yamaha motorcycle while he was riding it. After Manner filed suit, Schiermeier’s insurer paid him $100,000, the maximum coverage amount. The insurer agreed with Manner that his total damages equaled $1.5 million, leaving Manner with a substantial amount of unpaid damages. Manner therefore filed claims on four policies that named him as a beneficiary, each of which had $100,000 in underinsured motorist coverage. Manner had purchased three policies from American Family Mutual Insurance Company for the Yamaha motorcycle and two Ford pickup trucks. He also made a claim as an additional insured on his father’s policy from American Standard Insurance Company for a Suzuki motorcycle.

Manner added the insurance companies to his lawsuit as defendants after they denied coverage, claiming a total of $400,000. In a motion for summary judgment, the insurers argued that Manner was excluded from coverage on the the pickup truck and Suzuki motorcycle policies. Each policy had an owned-vehicle exclusion that excluded bodily injury claims involving a vehicle that the insured, or anyone in the insured’s household, owns, and that is not directly covered by the policy. The owned-vehicle exclusions applied to the Yamaha, the insurers claimed, because Manner owned it and it was not insured under any of the three policies. The trial court granted summary judgment for the defendants, and Manner appealed.
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February 8, 2013

Appellate Court Affirms Judgment in Defendant’s Favor in Pharmaceutical Products Liability Lawsuit, Citing Lack of Expert Testimony

by Parr Richey Frandsen Patterson Kruse LLP

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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January 30, 2013

First Amendment Protects Pharmaceutical Sales Rep’s Off-Label Promotion of Drug, Court Says

by Parr Richey Frandsen Patterson Kruse LLP

A pharmaceutical sales representative’s conviction for conspiracy to introduce a misbranded drug into interstate commerce violated his rights to free speech under the First Amendment, according to the Second Circuit’s ruling in United States v. Caronia, No. 09-5006-cr, slip op. (2nd Cir., Dec. 3, 2012). The court held that the representative’s speech, consisting of the off-label marketing of a drug, was the principal basis for the government’s criminal case, and that the regulations regarding such marketing were overbroad for the goal of maintaining safe drug labeling. The decision adds an interesting and important dimension of constitutional law to the issue of drug safety and medication errors.

The drug at the center of the case is Xyrem, a central nervous system depressant used for narcolepsy. It has a reputation as a “date rape drug” because its active ingredient, gamma hydroxybutrate, can cause abrupt loss of consciousness in sufficiently large doses. It is therefore subject to strict regulations as to its approved uses. The U.S. Food and Drug Administration (FDA) has only approved it for two uses, both related to narcolepsy: excessive daytime sleepiness and cataplexy, a sort of temporary paralysis associated with the condition. Xyrem was developed by Orphan Medical, which is now part of Jazz Pharmaceutical.

Before a pharmaceutical company may introduce a new drug into the marketplace, it must obtain approval from the FDA for specified uses, and the law states that its marketing may only reference these approved uses. The federal Food, Drug, and Cosmetic Act (FDCA) prohibits drug companies and their representatives from introducing “misbranded” drugs into the marketplace, which may include information that is “false or misleading,” or that suggests uses that are “dangerous to health.” Caronia, slip op. at 7, n. 4. The law does not, however, prohibit “off-label” promotion of drugs by physicians when speaking directly to patients. For pharmaceutical companies and their sales representatives, the FDCA imposes criminal penalties for misbranding drugs, but it does not specifically criminalize “off-label” promotion of drugs.
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