Lawsuit Information Center

December 20, 2012

Pre-Judgment Interest Medical Malpractice Case

The Indiana Supreme Court sent back to the trial court last week a wrongful death medical malpractice action involving the tragic death of a child after surgery for an undescended left testicle. The boy was just 13 months old. Just awful.

The issue in Alsheik v. Guerrero was something far less sad: prejudgment interest. This case went to trial and the jury awarded $1.165 million. The trial judge denied the plaintiff’s attorney’s request for pre-judgment interest. The plaintiff appealed this ruling.

In Indiana, for civil cases to qualify for prejudgment interest, the plaintiff must send a settlement letter. The purpose of the settlement letter is to give the defendant “notice of a claim and provide them with an opportunity to engage in meaningful settlement.”

December 19, 2012

Minnesota Wrongful Death Lawsuit Result in an Award of $591,000

by Ronald V. Miller, Jr.

After a week-long wrongful death trial in Minnesota, the family members of a twenty-two-year-old college student killed on a bicycle have said that while they are grateful for the jury award of $591,000. However, they would have preferred that the two men they blame for their son’s death be forced to spend time in prison. Felony murder and battery charges were dismissed against both defendants.

Sad details here. Apparently, the deceased disagreed with a member of a college hockey team. That member and several other players and recruits were said to have consumed 100 shots of alcohol that night. After the disagreement, the deceased apparently fled the bar on a bicycle, fleeing for his life while being chased by the boys. There were differing accounts of whether the boy was pushed, and by whom or whether his high level of intoxication caused him to crash. Regardless of fault, it is clear that the night was riddled with poor judgment and misconduct and that the death of this young man was absolutely senseless.

This garbage happens in college and usually does not end in death. Kids drink too much and do stupid things and, usually, no real harm is done. But sometimes things go really wrong, as they did in this case and this tragedy will impact this boy’s family for the rest of their lives.

October 15, 2012

A Product or a Service? Battle in Indiana

by Ronald V. Miller, Jr.

Trying to tell the difference between a product and a service may not be harder than deciding if a glass is half full or half empty, or if a tomato is better characterized as a fruit than as a vegetable, but it is certainly not easy.”
Whitaker v. T.J. Snow Co., 151 F.3d 661, 664 (7th Cir. 1998).

Is it a good or is it a service? This argument has been fought ever since the distinction between products’ cases and service arose. This distinction really mattered in a burn injury case in Indiana that was decided last week because the Indiana Product Liability Act does not apply to transactions that involve wholly or predominantly the sale of a service rather than a product. Barely, it would seem, a lawsuit against a maker of work shirts for burn injuries, allegedly caused because of the failure of a cotton uniform shirt to serve as expected, survived summary judgment last week in Indiana.

Here are the facts. Plaintiff was a welder/plasma torch operator who was operating a Pro Cut 80 plasma cutter made by the defendant. The Pro Cut 80 plasma cutter is used to cut through metal and steel. As you would expect, the plasma cutter fires off sparks when cutting metal. While using the plasma cutter, the plaintiff’s shirt catches fire causing serious burns.

Plaintiff sued a number of folks, including the manufacturer of the shirts saying these shirts just shouldn’t catch fire like that because everyone knows what the people in these shirts are doing, and the defendant has an obligation to make them safe for the intended use. The plaintiff’s argument that the negligence claim is not subject to the product liability act in Indiana because the relationship between the defendant and plaintiff’s employer was for the laundry service rather than the providing of work shirts.

August 29, 2012

Diabetes and Statins

by Ronald V. Miller, Jr.

Statins are a group of drugs used to lower cholesterol by inhibiting the enzyme HMG-CoA reductase. HMG-CoA reductase plays a role in the synthesis of cholesterol in the liver. Increased blood levels of cholesterol are associated with cardiovascular diseases. Statins have shown benefit in treating people with hypercholesterolemia (high cholesterol), and they are also now being used in people at low risk of cardiovascular disease as prevention.

The benefits of statins are quite clear. They work, and they help a lot of people. Any talk of the risk of statins has to be there. But there has been uncertainty regarding the safety of these drugs in recent years. The most common side effects reported with statins include increases in liver function tests, muscle aches, and rhabdomyolysis, a breakdown of muscle fibers. This would lead to questions of just what the drug companies should be telling doctors and end users about the risks of these drugs.

In recent years, there has been another concern: the possible relationship of the development of diabetes in patients taking statins. In 2008, a study on rosuvastatin (Crestor) to determine efficacy on vascular events suggested that statin use may result in the development of diabetes.

In 2010, an article published in The Lancet reviewed and analyzed 13 placebo-controlled trials to determine if the finding of the development of diabetes was consistent between trials. Results of this meta-analysis showed that there was a 9% increase in the risk of development of diabetes, mostly seen in patients over 60 years of age. Though this finding may seem odd, especially when statins have been shown to lower cholesterol in diabetic patients, other cardiovascular drugs such as thiazide diuretics, and beta-blockers have also been shown to lead to a higher risk of developing diabetes.

Diabetes drug causes gastroparesis: new lawsuit in 2024

August 28, 2012

Improving Pedestrian Safety By Reviewing Primary Types Of Incidents

by Ronald V. Miller, Jr.

One thing I think we can all universally agree on it that there are just too many pedestrian accidents and deaths. Clearly, Chicago is not an exception. A report of pedestrian and vehicle crashes released by Chicago Department of Transportation (CDOT) in 2011, focused on this problem and the types of crashes involving pedestrians. The authors of the study reviewed pedestrian accident data from police reports in the Chicago metropolitan area to determine how each incident occurred.

August 14, 2012

Damages for Injured or Killed Pets

by Ronald V. Miller, Jr.

New Jersey recently wrestled with a question of interest to all pet lovers. In McDougall v. Lamm, the plaintiff asked the court to decide what her pet was worth.

The facts of the case are simple, and our law firm frequently responds to calls like this. (We don’t handle them but we are glad to talk to you about it because we love animals, too.) The plaintiff’s dog was attacked by a larger dog, who picked it up, shook it, and dropped it to the ground, dead. The plaintiff saw her dog die. She filed a lawsuit against the attacking dog’s owner, who admitted that he was responsible for her damages. The court had to decide what her damages were.

The opinion touches on a number of issues, including the “zone of danger” rule (whether a plaintiff must be physically injured to recover for emotional damages received by watching another person suffer); the legal value of a dead pet; and whether a human can claim emotional damages for the death of a pet.

A few extra facts—the plaintiff told the court that she purchased her half-poodle/half-maltese nine years earlier for $200.00, and that she believed she could purchase a similar new puppy today for about $1,400.00. She of course testified that the dog was loved, knew many tricks, and was with her much of the day, particularly because she did not work out of the house.

The trial court dismissed the plaintiff’s emotional damages claim, noting that New Jersey did not recognize such a claim in the context of a pet’s death. The court rendered a verdict of $5,000, noting that the replacement cost alone would not compensate the plaintiff for the “loss of a well-trained pet.” Even though the court stated that it did not grant emotional damages, I think that’s what it did here. A quick internet review shows that these dogs live an average of 14-18 years, so this dog had another four to eight years of life. It cost $200.00. The purchase of a brand new dog, though untrained, would cost $1,400.00. I bet she could get a trained maltipoo for $2,000 without any trouble. It seems to me that the court awarded her $3,000 in emotional distress damages, without directly calling it that. Now, if the court believed that emotional distress damages were legally proper, maybe it would have awarded more. Sadly, it ruled (as did the appellate court), that such emotional damages were improper.

July 30, 2012

Is My Motorcycle Accident Covered by My Uninsured Motorist Policy?

by Ronald V. Miller, Jr.

The purpose of uninsured motorist coverage – which most of us blindly have because our state requires it – is so we have protection in the event that we get hit by a driver with no insurance or not enough insurance to provide compensation for our injuries. Most uninsured motorist policies compensate the victim for any amount within the policy limits that would have been recoverable from the at fault driver as money damages resulting from a car collision.

What happens when you are on a motorcycle that is not listed on your insurance policy? Does your uninsured motorist coverage kick in? This issue is usually framed by breaking down the language of the uninsured motorist agreement considers a motorcycle to be an excluded vehicle. But the analysis does not end there. Some states – Maryland is a prime example – is willing to rewrite the terms of an insurance policy to meet public policy objectives. This is done either by judicial fiat or by the state’s uninsured motorist statutory scheme. I’m always telling clients that something in their insurance policy probably in an UM case has been completely rewritten by the General Assembly.

Plaintiffs’ lawyers in these cases argue that the state uninsured motorist laws provides protection that extends not just to the vehicle but to the person. Accordingly, this argument goes, UM coverage is broadly construed to cover all motor vehicle accidents. The insurance companies, argue, on the other hand, that its insured should not be able to have their cake and eat it too by doing someone inherently unsafe while not paying for the coverage. There is merit to both arguments.

July 30, 2012

CPSC Files a Complaint Over Buckyballs

by Ronald V. Miller, Jr.

CPSC Suit Against the Manufacturer of Buckyballs

The Consumer Product Safety Commission (CPSC) has asked Buckyball manufacturer, Maxfield and Oberton, to stop sales of the Buckyball product, and to alert consumers that it is defective. Not only have they asked Maxfield and Oberton to stop sales, they have gone so far as to file an administrative complaint against the company.

The CPSC is claiming that there is a defect in the design, packaging, warnings, and instructions, posing a substantial risk of injury to the public. The complaint was filed after discussions with the company and its representatives failed to result in a voluntary recall plan that CPSC staff considered to be adequate. What is important here to note, is that this type of legal action against a company is rare, as this is only the second administrative complaint filed by CPSC in the past 11 years.

July 26, 2012

MI Windows Class Action Lawsuit: What a Mess

by Ronald V. Miller, Jr.

This blog post is about defective Windows made by MI Windows and Doors. I am writing about this because I find it interesting. There are lawyers handling these cases all around the country. Our law firm is not handling these cases. So while you are always welcome to call us, we will not be of much help to you in these cases. I don’t think it is a terrible idea, however, to listen to some thoughts from a lawyer that does not have any chips on the table.

July 18, 2012

Injured Victims Seek Biomet Metal Hip Implant Consolidation in Federal Court

by Ronald V. Miller, Jr.

Biomet Hip Defect Lawsuits Have Many Chapters

Biomet is one of the manufacturers of the much-maligned metal-on-metal hip implants. It makes the M2A Magnum, an all-metal implant that plaintiffs and scientists believe causes serious medical problems, including failure and blood poisoning.

In late June 2012, plaintiffs in several federal Biomet hip implant lawsuits filed a motion with the Judicial Panel on Multidistrict Litigation, asking that all federal Biomet hip implant injury cases be grouped together in one court, before one judge. Specifically, the plaintiffs asked the court to move the cases to the Northern District of California, or the Southern District of New York.

This move is basically a request to open up a metal-on-metal hip implant class action lawsuit. In multidistrict litigation (MDL), all cases of the same type that are filed in federal courts are automatically sent to one judge. That judge oversees the cases and ensures that there is unified (and not duplicative) discovery. The judge may encourage early test trials (called bellwether cases), from which the parties can determine the relative strengths and weaknesses of their cases, as decided by a jury. Those test cases often allow the lawsuits to settle en masse. If they don’t settle, or if an individual plaintiff chooses not to settle with the group, the non-settling cases are sent back to their home federal court for further proceedings, including trial.