Lawsuit Information Center

October 15, 2012

A Product or a Service? Battle in Indiana

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.

July 17, 2012

Zoloft Birth Defect Lawsuits

by Ronald V. Miller, Jr.

U.S. District Court Judge Cynthia M. Rufe of the Eastern District of Pennsylvania appointed long time mass tort lawyer Dianne M. Nast of RodaNast in Lancaster, Pa., and Mark P. Robinson Jr. of Robinson Calcagnie Robinson Shapiro Davis in Newport Beach, Calif., as plaintiffs’ co-counsel and as members of the Plaintiffs’ Executive Committee.

July 16, 2012

Fighting Cerebral Palsy: A New Weapon

by Ronald V. Miller, Jr.

Preliminary results from a fascinating new study could spell the eventual end for cerebral palsy. Cerebral palsy is a neurological disorder that prevents the brain from being able to adequately communicate with the body, causing physical difficulties with tasks like walking.

In the first part of the study, investigators from Duke University Medical Center used an intravenous infusion of a child’s own cord blood to see if it had an effect on their cerebral palsy. Initial data from the first part of the study showed that some patients had improved speech, mobility and movement.

A team of scientists from Duke University Medical Center is now on phase II and is seeking participants for its Cerebral Palsy Autologous Cord Blood Study. This part of the study is a randomized, placebo-controlled crossover study, which means that some participants will receive full treatments, and others will receive a placebo. This is the gold standard for medical research. The team expects to complete the study by July 2013. There is another study taking place at the Medical College of Georgia.

The implications of these studies are heart-warming, to say the least. Something like this could be the miracle cure that thousands of parents have been hoping for. Even though the study is slated to be complete next year, there are other concerns. For example, the study only involves the use of a child’s own cord blood–it won’t be immediately apparent whether donated cord blood could yield the same benefits. Banking cord blood can be an expensive process–one company charges $2,195 for the first year.

Our law firm has been concerned with cerebral palsy for years, particularly as it is sometimes caused by medical malpractice. We handle birth injury cases where children develop cerebral palsy because of delays and complications during labor. When the baby’s oxygen and blood supply is cut off, whether because of complications of shoulder dystocia, fetal distress or umbilical cord prolapse, cerebral palsy and other developmental delays can be the unfortunate result.

These are awful cases that are, frankly, very lucrative for malpractice lawyers. But nothing would make us happier than to give up those lawsuits and see children with cerebral palsy cured. Any progress towards this goal would be just unbelievable.

Cerebral Palsy Basic Facts

There are about 8,000 new cases each year in the United States. The United Cerebral Palsy Foundation estimates that over 750,000 people in the U.S. have one or more of the symptoms of cerebral palsy. All CP injuries come from a static lesion of the brain but the outcomes vary wildly. The symptoms vary from insignificant to all-consuming. Although the injury usually occurs during or near childbirth, most kids are not diagnosed for at least a year, although parents usually have suspicions and concerns long before a concrete diagnosis.

Every CP case is different. Neurologic classifications of cerebral palsy include spastic (pyramidal) cerebral palsy, dyskinetic (extrapyramidal) cerebral palsy, ataxic (rare) cerebral palsy, and mixed types.

Our lawyers mostly see spastic cerebral palsy cases. Spastic types CP has five subtypes

Monoplegia – one limb involvement
Diplegia – primarily lower limb involvement
Triplegia – involves three limbs
Tetraplegia – four extremities and truncal involvement
Hemiplegia – one side of the body involved including arm and leg