Personal Injury

Are “Possible Causes” of an injury admissible?

Published on: August 3, 2017 | by Hollis Wright

Any attorney who has ever litigated a personal injury claim has heard the legal standards “reasonable degree of medical certainty” or “reasonable degree of medical probability.” Further, attorneys understand and appreciate that the plaintiff has the burden of proving that the claimed injuries were caused by the underlying events in compliance with these standards. However, what do the standards mean and what is required? In essence, the standards require that it is more probable than not, or more likely than not, that the claimed injuries were caused by the incident giving rise to the lawsuit. Typically, a qualified medical doctor or medical clinician will have to testify on this issue.

In many circumstances where medical causation is in dispute, the defendants may respond or defend the case by asserting that the claimed injuries were not caused by the underlying incident, or were in fact caused by some other, unrelated event. The question becomes: What legal standard applies to a defendant desiring to make this argument and admit evidence in furtherance of same. Can the defendant introduce “possible” alternative causes? Does the defendant have to present medical evidence or testimony within a reasonable degree of probability to be able to introduce the evidence before the jury?

These questions are often raised and debated in many personal injury cases throughout the State of Alabama and around the country. While the issue may be addressed or handled differently among the jurisdictions, the better practice should be to hold the defendants to the same standard of admissibility as the plaintiff. Under no circumstances would an Alabama trial judge allow a plaintiff to present medical testimony indicating that his injuries were only “possibly” caused by the incident. If this were the testimony in the case, the defendant would undoubtedly file a motion in limine to preclude the plaintiff from arguing that the claimed injury was caused by the accident. Alabama law is clear that “possible causes of an injury to a plaintiff represent nothing more than rank conjecture and speculation.” Western Ry. of Ala. v. Brown, 196 So. 2d 392 (Ala. 1967); see also Hooks v. Pettway, 142 So. 3d 1151 (Ala. Civ. App. 2013); Portis v. Wal-Mart Stores East, L.P. 2008 WL 3929672 (S.D. Ala. 2008).

Fires and Burn Injuries

Published on: March 9, 2017 | by Hollis Wright

Fires are a leading cause of burn injuries, death and property damage in the United States and in the world. According to the World Health Organization, some 265,000 people die worldwide due to fire-related incidents. Lower-income areas are more prone to fire accidents, injuries and deaths than higher-income demographics. In the same vain, lower-income countries see far more fire-related deaths than the United States.

The American Burn Association in 2016 recorded 486,000 burn incidents in the United States that required medical attention, 3,275 of which resulted in fire or smoke inhalation deaths. Some 40,000 Americans are hospitalized each year due to burn injuries, 30,000 of those are admitted to specialized burn units. Most burns, a whopping 73 percent, in the U.S. result from in-home accidents. And while most burns are a result of fire or flame, many occur due to scalding, contact, chemicals, and electrical episodes.

If you are burned, the American Burn Association indicates the following:

Good News for Victims of Elder Abuse

Published on: December 12, 2016 | by Hollis Wright

Placing a loved one in a nursing home or long-term care facility is one of the toughest decisions a family will face. Sadly, abuse and neglect occur far too often in nursing homes. The National Center on Elder Abuse puts the average number of yearly cases of elder abuse at more than 2-million. 60% of those are due to neglect, and the Center found that over 90% of nursing homes were not adequately staffed to take care of their patients. Unfortunately, most all of these elder abuse cases never see the inside of a courtroom because, until recently, most nursing homes required their residents to consent to binding arbitration, which would decide a claim if it arose. Arbitration is an alternative method of resolving disputes without court intervention. Parties to the dispute submit their claims to an arbitrator, who reviews the evidence submitted by both parties and issues a decision. Unlike the court system, a party to an arbitration dispute has little to no redress in the event they disagree with the arbitrator’s decision.

Recently, a move was taken that will make it easier for families to seek justice against elder abuse. The Department of Health and Human Services has issued a new rule to prevent long-term care facilities that accept Medicare or Medicaid from forcing residents into arbitration. The changes on arbitration were thrust to the forefront after officials in 16 states and the District of Columbia insisted the government eliminate funding to nursing homes that use arbitration clauses. The primary allegation was that arbitration kept patterns of wrongdoing hidden from would-be residents and their families because arbitration proceedings and decisions are confidential and do not take place in a public forum like a courtroom. The changes are part of an overhaul by the by the Center for Medicare & Medicaid Services (CMS) of consumer protections at long-term care facilities.

“We are requiring that facilities must not enter into an agreement for binding arbitration with a resident or their representative until after a dispute arises between the parties,” reads the rule. “Thus, we are prohibiting the use of pre-dispute binding arbitration agreements.”

The Admissibility of “Absence” Evidence

Published on: October 31, 2016 | by Hollis Wright

Evidence is the foundation of any successful lawsuit – a single piece of evidence can make or break an entire case. Not all evidence, however, can be presented to the jury. There are strict rules that the courts use to determine whether a specific piece of evidence will be admitted. Given the effect a single piece of evidence can have, these rules attempt to provide the appropriate balance in as many cases as possible. Courts may therefore allow a piece of evidence in one trial, but disallow that same piece of evidence in another based upon the individual factual scenarios of each trial. One area of evidence which highlights this dichotomy is the use and application of “absence evidence.”

“Absence evidence” is evidence that there are no prior documented occurrences of a certain event. Attorneys use “absence evidence” to argue that because there are no prior documented occurrences of said event, it is not likely that said event would have occurred on this occasion. One of the primary uses of absence evidence is in products liability cases. For example, manufacturers of an older product might want to show the jury that their product has not caused any accidents over the last twenty-years and thus it is less likely that their product is defective in the current lawsuit. When a party wishes to use absence evidence, particularly in these kinds of cases, the court must determine whether evidence that a prior event has not occurred is accurate and if so, is it fair to present such evidence to the jury.

1. Does the lack of a prior occurrence accurately reflect the prior history of the occurrence?

Can you be liable for texting the driver of a vehicle?

Published on: June 7, 2016 | by Hollis Wright

Everyone has seen the advertising campaigns geared against texting and driving. Moreover, numerous states have enacted legislation which makes it illegal to text on your phone while you drive. While those ads and laws have certainly helped curb distracted driving on our roads, is their focus too limited? Should we consider not only the conduct of the person receiving the text, but also the conduct of the person sending the text?

The Ruling

In a recent opinion from the New Jersey Court of Appeals, three judges agreed with the general proposition that you can be liable if you text someone who you know is driving a vehicle and that person is subsequently distracted and gets into a wreck. In September 2009 a young man was driving down the road as he and his girlfriend were exchanging text messages. The plaintiffs, a married couple, were driving in the opposite direction on their motorcycle. As the young man drove down the road, he became distracted from the flurry of text messages and he allowed his truck to drift across the double center line and hit the plaintiffs’ motorcycle head-on. Seventeen seconds elapsed from when the young man received the last text message until he dialed 911 to report the incident.

$500 Million Pinnacle Hip Verdict

Published on: May 2, 2016 | by Hollis Wright

After hearing thirty-seven days of trial testimony and deliberating for four days, a Texas jury determined that Johnson & Johnson was liable for defectively designing their metal-on-metal hip implants. The lawsuit alleged that Johnson & Johnson aggressively marketed their Pinnacle metal-on-metal hip implants for use by younger, more active patients because the metal-on-metal implants were long-lasting, durable and safe despite being aware of the design flaws in the implants, which caused them to fail more frequently and quickly than expected, leading to injuries including tissue death, bone erosion and high levels of metal in their blood. The five Plaintiffs who brought the lawsuit collectively received a $502 million judgment which was comprised of $142 million in compensatory damages and $360 million in punitive damages. The verdict will be split amongst the Plaintiffs based on the severity and impact that each Plaintiff suffered as a result of their individual injuries.

Unfortunately, Johnson & Johnson has vigorously stated since the massive verdict was returned that they will appeal the result. One of the many issues that will certainly be raised on appeal is Texas’ law which caps punitive damages. This means that on appeal the $360 million punitive damage award could be reduced to as low as $10 million.

However, despite a pending appeal and a possible overall reduction in punitive damages, the recent verdict is still an overwhelming triumph for Plaintiffs who suffer from defective metal-on-metal hip implants. Most notably, the recent verdict marks Johnson & Johnson’s first trial loss regarding the use of metal on metal artificial hips. In a prior trial in the same multi-district litigation (“MDL”), Johnson & Johnson was successful in defending a single Plaintiff suit based on its argument that it was the surgeon who installed the implant’s fault instead of the defective implant itself. However, based on this most recent verdict it appears the tide has begun to change in favor of the Plaintiffs, and Johnson & Johnson will no longer be able to overlook its defective product and place blame on the implanting surgeons.

Johnson & Johnson Hit with Fourth Million Dollar Verdict on Risperdal Failure to Warn Claims

Published on: November 18, 2015 | by Hollis Wright

Johnson & Johnson has faced several lawsuits over the past year alleging that Johnson & Johnson knew there was a link between their antipsychotic drug, Risperdal, and abnormal breast growth. Risperdal is a very powerful antipsychotic drug that Johnson & Johnson peddled to pediatric doctors for use by children even though the drug lacked certain approvals from federal regulators. Thus far, Johnson & Johnson has been hit with four separate jury trials all alleging that Johnson & Johnson not only knew that children prescribed Risperdal could develop a condition known as gynecomastia, but also that Johnson & Johnson failed to properly warn and/or disclose the risks of abnormal breast growth in adolescent boys prescribed Risperdal.

The Previous Three Jury Trials

In February 2015 the first Risperdal case was taken to a trial by jury. The jury returned a $2.5 million verdict in favor of the plaintiffs determining that Risperdal did in fact cause the plaintiffs injuries and that Johnson & Johnson failed to provide proper warnings. In the second case, the jury was less convinced as to the causal link between the drug and the plaintiff’s adverse condition. While the jury did agree that Johnson & Johnson failed to provide adequate warnings, the jury was not convinced that Risperdal caused the plaintiffs to develop abnormal breast growth. As such, the second jury awarded no damages against Johnson & Johnson. The third case began October 15, 2015 and the trial is still ongoing. Lead counsel for the young man who developed female breasts after taking Risperdal as a child stated recently that “Risperdal [is] a powerful antipsychotic drug which was promoted and marketed even though it wasn’t indicated for children.”

Zofran: Birth Defects Caused by Anti-Nausea Drug?

Published on: April 7, 2015 | by Hollis Wright

In the past month, at least three new lawsuits have been filed over birth defects parents allege were caused by Zofran, the popular anti-nausea medication prescribed for off-label use during pregnancy by mothers. This case, filed in California Superior Court on March 30, 2015, follows two others: one filed in the Eastern District of Pennsylvania on February 12, and another in the District of Massachusetts on February 16. Each case alleges congenital abnormalities, including heart defects, after the mothers were prescribed Zofran for nausea and vomiting associated with pregnancy…a use not approved by the FDA when the drug was approved for market.

The court cases allege, among other things, that the maker of the drug, GlaxoSmithKline, has received more than 200 reports of birth defects in children who were exposed to Zofran during early pregnancy. Glaxo is also being accused of improperly marketing Zofran to treat pregnancy-related nausea and vomiting, and one lawsuit even notes that Glaxo previously agreed to pay $3 billion to settle charges with the U.S. Department of Justice regarding the marketing of a number of other medications. This prior settlement with the U.S. government included allegations that Glaxo had improperly marketed Zofran to treat morning sickness…the very same claim now asserted by the plaintiffs.

Recent research by scientists with the University of Colorado, Stanford University, and London’s Royal Free Hospital reveled that when taken during pregnancy, Zofran does in fact cross the placenta to reach the developing fetus, and remains longer with the baby than the mother due to a longer half-life (i.e., the elimination rate of the drug in the body). This was not the first study done regarding these issues. A previously published study from the journal Clinical Pharmicokinetics, showed that samples taken from 41 women given Zofran prior to surgical pregnancy termination procedures revealed much higher concentrations of the drug within fetal tissues than was anticipated.

Fires, A Real Societal and Dangerous Problem!

Published on: February 13, 2014 | by Hollis Wright

On average, Alabama typically experiences over 100 deaths per year associated with fires. Nationally, the average number of deaths per year from fires is around 4,000. This means that someone is dying from a fire every 3 hours, approximately. Approximately 75% of all annual deaths from fires involve a residential property. The US Department of Commerce, Bureau of Economic Analysis estimates that the total annual cost to society associated with fire losses is a staggering $182 billion. Residential and non-residential STRUCTURE fires comprise 35% of all annual fires. Alcohol use contributes to an estimated 40% of residential fire deaths. Nearly one out of every seven fires to which a fire department responds involves a vehicle.

The fire problem is more severe for some groups than others. People in the southeast, males, the elderly, African Americans, and American Indians are all at higher risk from fire than the rest of the population.

Fire safety experts recommend that if you are confronted with or facing a residential fire that cannot be easily extinguished to call 911 first before trying to extinguish the fire as many have made the mistake of waiting until the last minute to call 911 which ultimately resulted in damages/injuries that could have been avoided if the fire department had been notified sooner and been able to arrive more promptly.

Post Concussive Syndrome, A Real Problem!

Published on: December 12, 2013 | by C. Carter Clay

Can a concussion from playing football really alter my life forever? It is a question that is being asked much more frequently these days, especially when football season rolls around each fall. When your son first approaches you as a child and asks about playing football, the knee jerk response has typically and historically always been “yes”. Every young boy should have the opportunity to experience youth football, right? With an aggressive, intense focus in recent years on concussions and head injuries associated with football, the decision has become much more difficult and should be given careful consideration and forethought.

Years ago, when current-generation fathers started playing football, coaches and parents rarely discussed or dealt with concussions or traumatic brain injuries (TBIs). Was this because kids didn’t sustain concussions as often back then or was it because parents and coaches simply were not as aware of the signs and symptoms of concussions as they are today? Unfortunately, it is likely the latter.

Recently, investigation and research into the causes and effects of concussions has increased significantly, due largely in part to the tragic death of Junior Seau, one of the NFL’s greatest linebackers. Junior Seau died on May 2, 2012 from apparent suicide. Seau’s autopsy suggested that he suffered from chronic traumatic encephalopathy, a brain disease caused by repeated blows to the head. Studies show that it is not the one big hit but rather, smaller, repeated blows to the head which cause brain damage. Seau’s family subsequently filed a wrongful death lawsuit against the NFL. The lawsuit blames the NFL for its “acts or omissions” that hid the dangers of repetitive blows to the head. It also accuses the NFL of deliberately ignoring and concealing evidence of the risks associated with traumatic brain injuries and allowing players to play without proper medical clearance. While there are sure to be a wide variety of opinions over the merits of the Seau lawsuit and others brought by former NFL players, there is no denying that these incidents and lawsuits are bringing more publicity to the subject.